Suspension/ Violation of Drug Policy:
Brewer v. WCAB (E2 Payroll & Staffing Solutions), No. 337 C. D. 2012, Filed 2/13/2012, Ordered Published 4/12/2013.
Employee was injured when a forklift pinned him against a conveyor belt. Claimant went to a panel provider for treatment, had a drug test administered, the test was positive, and claimant's employment was terminated. Employer had a zero tolerance substance abuse policy and claimant admitted to receipt of the substance abuse policy.
The WCJ granted claimant's claim, but denied claimant's entitlement to indemnity benefits, finding that claimant's wage loss was due to his violation of the drug policy and not from the injury. The WCAB affirmed. To the Commonwealth Court, claimant argued that since a Notice of Ability had not been issued, benefits could not be suspended. The Court stated that the Act only requires this Notice when a Suspension/Modification Petition is based on a change in the medical condition which was not present in this case. Claimant also appealed the finding that he failed the drug test on the grounds that the letter the employer received regarding the positive test was hearsay. However, this argument was rejected because claimant admitted he had used drugs three days before the drug test and he could not dispute the results.
The employer in this case was diligent in making the drug policy known and obtained a signed acknowledgement from its employees that they received the policy. Employer also applied the policy without exception when an employee failed a drug test and terminated the employee immediately. Employers who are diligent regarding a zero tolerance drug policy increase their chances of obtaining a suspension of benefits in a similar setting.
The language of the Court seems to imply (not entirely clear on this issue) that a Notice of Ability to Return to Work is not required in a claim petition setting when disability does not exceed seven days. This may be significant as claimants' counsel often argue that the Notice is required when a claim petition is pending and the disability is seven days or less.
Sara L. De Long