By William J. Judge, JD, LL.M.
Drug Screening Compliance Institute
Drug testing can make you money. I have said this for years and people usually look at me as if I’ve been smoking something. What they don’t realize is that if they explore the state financial opportunities that exist, they can see a significant return on their money. However, in order to do so, compliance with the state’s rules, including the filing of paperwork, is necessary. Two recent cases, one in Florida and the other in Tennessee, make this evident. Before we get into the details of the two cases, let’s set the stage.
Today, nineteen states provide some form of a rebuttable presumption of intoxication defense to a workers’ compensation claim. Seen on the map below, the states highlighted in green offer a rebuttable presumption of intoxication. However, the cause must be established. The states highlighted in blue provide a rebuttable presumption of both intoxication and cause. In those states, the burden then shifts to the employee to show that she or he was not intoxicated and/or that something other than intoxication caused his or her injuries.
If the employee is unable to rebut the presumption, the claim is denied. Some states require paying for the medical care that the injured employee received and, in a few states, the presumption is unavailable if the injured employee died. If you are operating in one of these states, you should seriously consider complying with the financial opportunity that is available to you. If you don’t utilize this defense, you are leaving cash on the table.
Another cash opportunity, also involving workers’ compensation, can be found in the twelve states highlighted in yellow below.
These states offer a discount on your workers’ compensation premiums annually (usually ~5%) if you voluntarily comply with the rigid rules detailed in most of the state’s statutes and regulations.
As seen in the following two cases, if you fail to comply with the rules in either of these financial opportunities, you may not receive the benefits available.
On April 18, 2018, a Florida Court of Appeals reversed a lower court’s decision to deny death benefits to the spouse of a man struck and killed by a vehicle while walking from a bar along the road. The employee, a construction helper assigned to an out-of-town job, was returning to his hotel. Surveillance video showed the employee “weaving in and out of the road” shortly before the accident, but the actual accident was not seen.
The employer raised the rebuttable presumption of intoxication defense available in Florida (sec. 440.09(3) and 440.09(7)(b)). The Court of Appeals found that the employer and carrier were not entitled to the defense “due to their non-compliance with…the procedures set forth in the administrative rules.” Without the presumption, the employer/carrier had to show “by the greater weight of the evidence, that the work-related injury was occasioned primarily by the intoxication of the employee.”
The Court of Appeals concluded that the employer/carrier failed to meet that burden. The potential cost to the employer/carrier was up to $150,000 in compensation and up to $7,500 in funeral expenses.
On February 8, 2018, the Tennessee Bureau of Workers’ Compensation Appeal Board (“Board”) found that an employer that had participated in the State’s Drug-Free Workplace program in the past was not entitled to the presumption available in that program because they hadn’t filed the required paperwork with the State to cover the time period of the accident. Had they filed the application for participation in the program they could have raised the rebuttable presumption that the injured employee’s drug use (marijuana) was the proximate cause of her injuries she sustained in an automobile accident while at work. The employer asserted that it’s past participation in the program and its “substantial compliance with the statutory requirements” should entitle it to the program’s benefits.
The Board disagreed indicating that not only had the General Assembly imposed certain program requirements, but it also required that “substantial compliance in completing and filing the [application] form shall create the rebuttable presumption” that the employer had established the required program.
Because the employer here had not filed the application (even though it had been filled out) it was not entitled to the presumption.
Lesson: State benefits can save substantial amounts of money, but only if you comply with the rules set out by the state legislature and agency that enforces the law.
 In most of these states, there are detailed rules that must be met. An explanation of those details is beyond the scope of this article.
 Inmon v. Convergence Employee Leasing III, Inc., et al, No. 1D17-0815, (1st Dist. Ct. of App. (4-18-18)).
 Sec. 440.16.
 Bowlin v. Servall, LLC, et al, Docket No. 2017-07-0224, (2-08-18).