Failed Drug Test Damaging to PA Injured Worker

The general rule in Pennsylvania workers’ compensation is that if a work injury makes you unable to work, you should be entitled to workers’ compensation benefits. One of the exceptions to this rule is when the loss of wages is due to some reason unrelated to the work injury.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Brewer v. Workers’ Compensation Appeal Board (E2 Payroll & Staffing Solutions). The Claimant injured his low back when he was pinned by a forklift. As is their known policy, the employer had the hospital take a drug test of Claimant after the injury. Claimant failed the drug test, and admitted he used cocaine and marijuana a few days before the work injury. Since the employer has a zero-tolerance policy on drug use, Claimant was fired immediately.

Claimant filed a Claim Petition, seeking payment of his lost wages. In the litigation, the doctor secured by the workers’ compensation insurance carrier testified that the incident at work had caused a herniated disc in the lumbar spine, and that this damaged disc was irritating a nerve (a condition called “radiculopathy”), but that Claimant was capable of working at a light duty position. The employer had a representative testify that light duty work would have been available to Claimant, if he had not been terminated for failing the drug test. The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but suspended wage loss payments, finding the loss in earnings to be unrelated to the work injury. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. Initially, Claimant argued that benefits cannot be suspended here because the workers’ comp insurance carrier failed to issue a Notice of Ability to Return to Work. While the Court agreed that this document is generally a threshold requirement before the workers’ comp insurance carrier can try to suspend benefits based on a job offer or a Labor Market Survey, the Court found this issue different:

“Here, the WCJ found that although Claimant had suffered a work-related injury, his loss of earnings was caused by his misconduct, not his injury. A notice of ability to return to work was not required because Section 306(b)(3) of the Act is limited to modifications based on medical evidence received by the employer. The Board did not err in suspending benefits as of the day of Claimant’s work injury.”

The injured worker then argued that being fired from work was not proof that he did not have a loss in earnings. The Court rejected this contention similarly, noting that the loss in earnings here was the result of the misconduct of the injured worker, having nothing to do with the work injury. An argument that there was not sufficient evidence that Claimant actually failed the drug test was also rejected, since the WCJ credited evidence, including Claimant’s own admission of drug use, that corroborated the drug test. A final argument was not addressed by the Court, since the injured worker failed to raise this argument in the appeal to the WCAB (an argument is waived if not raised in the initial appeal).