Drug and Alcohol Testing

Wasted Time Sinks Bid to Deny Claim

An injured employee left company premises before drug and alcohol testing could be administered. But a court said he wasn’t to blame.
By: | August 14, 2017 • 3 min read

A post-incident drug and alcohol testing program can be a useful tool. But only if you’re prepared to administer tests on the spot.

One employer failed to administer a breathalyzer test in a timely manner after an employee injured his back on the job. Now, the injured employee will receive full workers’ compensation benefits even though alcohol use was never ruled out.

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Travon McCall injured his back while working as a cook-line operator for Sanderson Farms Inc. He willingly stayed on the property another hour and a half after reporting his injury, during which a breath-alcohol technician was called to the scene. McCall’s pain forced him to leave before the technician even arrived, and the company saw his actions as refusal to take the test.

The court had a different view.

Ticking Clock

In the state of Mississippi, when an employee is injured on the job, “the employer shall have the right to administer drug and alcohol testing or require that the employee submit himself to drug and alcohol testing.” McCall was working the late shift on May 10, 2014. He was tasked with lifting a forty-pound tub of waste flour, and when he bent down to pick it up, he felt searing pain in his lower back. Quickly, he reported the injury to his supervisor.

McCall, unable to sit due to the pain running down his right leg, waited 20 minutes for the company nurse to arrive and administer a drug test. Unfortunately, McCall was unable to provide a testable urine sample the first time around. The nurse offered him 40 ounces of water to try again, letting him know that he would have up to three hours to produce a sample before the test would be completely unusable.

In the meantime, the breath-alcohol technician was on his way. After an hour and a half had passed, McCall, already frustrated with the failed drug test and the continuing pain, did not want to wait any longer. He walked out of the building, heading straight for the hospital.

The breathalyzer technician arrived shortly after McCall’s departure. His services were not used. Later, the technician billed Sanderson Farms for his time, though the bill did not list an arrival time to the facility on that night.

River Oaks Hospital, a mere two miles down the road from Sanderson Farms, recorded McCall arriving at 12:24 a.m. on May 11. Upon his arrival, McCall was greeted by one of his supervisors who already had the employee’s workers’ comp paperwork ready to sign. The hospital personnel administered a second drug test, which McCall passed. They treated his back injury and sent him on his way.

No breathalyzer test was offered to McCall.

On May 12, 2014, Sanderson Farm terminated McCall’s employment, stating McCall “voluntarily resigned” due to “refusal of drug/alcohol test” and leaving the premises without permission.

An administrative judge ruled McCall’s injuries were compensable. When the employer contested the ruling, the Mississippi Workers’ Compensation Commission reversed the judge’s decision. McCall appealed.

Lack of Substantial Evidence

On August 1, 2017, Sanderson Farms alleged that McCall refused to submit to a drug and alcohol test by leaving the facility. A refusal to a test is reason enough to believe the injured worker was under the influence during the time of injury. However, the Court of Appeals of Mississippi noted, McCall was at the facility for at least an hour and a half following his injury.

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Additionally, McCall had signed a statement when he was with the company nurse. It said he agreed to a drug and alcohol test “including but not limited to urine testing or breath analyzing for drugs and alcohol.”

From this, the court decided that “given that an employee supervisor was present at the hospital … and that McCall gave written permission submitting himself to testing, we find that the evidence is insufficient to support an inference that McCall intentionally refused to cooperate with his employer’s requirement that he submit himself to testing for alcohol.”

Further, “McCall remained on the premises and [was] available for alcohol testing for an hour and a half after he reported his injury,” said the court. “Sanderson Farms did not offer him a breathalyzer test during this time.”

The court reversed the Commission’s decision — which the court noted was not supported by substantial evidence.

Cite: McCall v. Sanderson Farms Inc.

Autumn Heisler is a staff writer at Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

2017 Teddy Awards

The Era of Engagement

The very best workers’ compensation programs are the ones where workers aren’t just the subject of the program, they’re a part of it.
By: | November 1, 2017 • 5 min read

Employee engagement, employee advocacy, employee participation — these are common threads running through the programs we honor this year in the 2017 Theodore Roosevelt Workers’ Compensation and Disability Management Awards, sponsored by PMA Companies.

A panel of judges — including workers’ comp executives who actively engage their own employees — selected this year’s winners on the basis of performance, sustainability, innovation and teamwork. The winners hail from different industries and regions, but all make people part of the solution to unique challenges.

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Valley Health System is all-too keenly aware of the risk of violence in health care settings, running the gamut from disruptive patients to grieving, overwrought family members to mentally unstable active shooters.

Valley Health employs a proactive and comprehensive plan to respond to violent scenarios, involving its Code Atlas Team — 50 members of the clinical staff and security departments who undergo specialized training. Valley Health drills regularly, including intense annual active shooter drills that involve participation from local law enforcement.

The drills are unnerving for many, but the program is making a difference — the health system cut its workplace violence injuries in half in the course of just one year.

“We’re looking at patient safety and employee safety like never before,” said Barbara Schultz, director of employee health and wellness.

At Rochester Regional Health’s five hospitals and six long-term care facilities, a key loss driver was slips and falls. The system’s mandatory safety shoe program saw only moderate take-up, but the reason wasn’t clear.

Rather than force managers to write up non-compliant employees, senior manager of workers’ compensation and employee safety Monica Manske got proactive, using a survey as well as one-on-one communication to suss out the obstacles. After making changes based on the feedback, shoe compliance shot up from 35 percent to 85 percent, contributing to a 42 percent reduction in lost-time claims and a 46 percent reduction in injuries.

For the shoe program, as well as every RRH safety initiative, Manske’s team takes the same approach: engaging employees to teach and encourage safe behaviors rather than punishing them for lapses.

For some of this year’s Teddy winners, success was born of the company’s willingness to make dramatic program changes.

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Delta Air Lines made two ambitious program changes since 2013. First it adopted an employee advocacy model for its disability and leave of absence programs. After tasting success, the company transitioned all lines including workers’ compensation to an integrated absence management program bundled under a single TPA.

While skeptics assume “employee advocacy” means more claims and higher costs, Delta answers with a reality that’s quite the opposite. A year after the transition, Delta reduced open claims from 3,479 to 1,367, with its total incurred amount decreased by $50.1 million — head and shoulders above its projected goals.

For the Massachusetts Port Authority, change meant ending the era of having a self-administered program and partnering with a TPA. It also meant switching from a guaranteed cost program to a self-insured program for a significant segment of its workforce.

Massport’s results make a great argument for embracing change: The organization saved $21 million over the past six years. Freeing up resources allowed Massport to increase focus on safety as well as medical management and chopped its medical costs per claim in half — even while allowing employees to choose their own health care providers.

Risk & Insurance® congratulates the 2017 Teddy Award winners and holds them in high esteem for their tireless commitment to a safe workforce that’s fully engaged in its own care. &

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More coverage of the 2017 Teddy Award Winners and Honorable Mentions:

Advocacy Takes Off: At Delta Air Lines, putting employees first is the right thing to do, for employees and employer alike.

 

Proactive Approach to Employee SafetyThe Valley Health System shifted its philosophy on workers’ compensation, putting employee and patient safety at the forefront.

 

Getting It Right: Better coordination of workers’ compensation risk management spelled success for the Massachusetts Port Authority.

 

Carrots: Not SticksAt Rochester Regional Health, the workers’ comp and safety team champion employee engagement and positive reinforcement.

 

Fit for Duty: Recognizing parallels between athletes and public safety officials, the city of Denver made tailored fitness training part of its safety plan.

 

Triage, Transparency and TeamworkWhen the City of Surprise, Ariz. got proactive about reining in its claims, it also took steps to get employees engaged in making things better for everyone.

A Lesson in Leadership: Shared responsibility, data analysis and a commitment to employees are the hallmarks of Benco Dental’s workers’ comp program.

 

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]