Pennsylvania Employer Barred From Using Alleged Failed Drug Test in Subsequent Workers’ Comp Case

In Erisco Industries, Inc. v. Workers’ Compensation Appeal Board (Luvine), decided by the Commonwealth Court of Pennsylvania on September 3, 2008, an employer unsuccessfully tried to defend a Claim Petition by saying Claimant failed a drug test and that the drug use led to the work injury. Under the PA Workers’ Compensation Act, intoxication of the injured worker can be an “affirmative defense” by the workers’ compensation insurance company. This means that the burden is on the workers’ comp insurance carrier to prove not only that the injured worker was intoxicated (by drug or alcohol), but that the intoxication caused the injury.

When Mr. Luvine filed his Claim Petition, the workers’ compensation insurance company tried to submit the results of a drug test that they alleged was positive for an illegal substance. Part of the evidence required by the workers’ comp insurance company is to show “chain of custody” regarding the drug test; basically, they must show the sample was properly collected, authenticated and controlled throughout the testing process. This is primarily applicable when the laboratory which tests the sample is not the party who obtained the sample. The Workers’ Compensation Judge (WCJ) rejected the drug test results because the workers’ compensation insurance carrier failed to prove chain of custody, and the WCJ granted the Claim Petition.

Eventually, Mr. Luvine was released back to work, but his employer refused to offer him a job, since he had (in their eyes) failed the drug test. The workers’ comp insurance carrier filed a Petition to Suspend the workers’ compensation benefits, because they said the reason the injured worker was having wage loss now was that he failed a drug test (and no longer was due to the work injury).

The WCJ granted the Suspension Petition. The Workers’ Compensation Appeal Board (WCAB), however, reversed the decision of the WCJ, because the issue about the drug test had already been decided in the initial Claim Petition. The drug test could no longer be used. When an identical issue, between identical parties, is decided once, it cannot be litigated again. This is known as res judicata or collateral estoppel. The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB. The workers’ compensation insurance company had its chance to show the drug test was valid and failed. They cannot come back in another litigation and try the issue again.

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