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Temporary Labor Source v. E.H.6/8/2000
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.
An appeal and cross-appeal from an order of Judge of Compensation Claims Howard Scheiner.
This is an appeal and cross-appeal from an order awarding compensation benefits to a claimant whose leg was amputated as the result of injuries he suffered when he fell off a garbage truck. We find reversible errors and remand the case to the judge of compensation claims (JCC) for further proceedings.
The evidence presented to the JCC demonstrated that just before he fell, the claimant was riding on the outside of the garbage truck, in violation of the employer 's safety policies, and that when his urine was routinely collected by emergency room staff and tested by the hospital, the presence of cocaine was indicated. Upon further testing by an independent laboratory three months later, the presence of cocaine and its metabolites in the claimant's urine sample was confirmed and quantified. The employer and carrier (E/C) presented these drug test results as evidence that the accident was caused primarily by the influence of drugs, as provided by section 440.09(3), Florida Statutes, and to raise the presumption set out in section 440.09(7)(b), Florida Statutes.
The JCC construed section 440.09(3) in pari materia with section 440.09(7) and ruled that, while a drug test of a sample which was taken for medical purposes may be used to support an intoxication defense under section 440.09(3), the presumption in section 440.09(7)(b), which is based upon a positive confirmation drug test, may not be based upon a drug test of a medically-drawn sample unless the Florida Administrative Code requirements alluded to under section 440.09(7)(d) are followed. The JCC's final order did not recite his ruling on the applicability of the intoxification presumption, but instead denied the claim in its entirety on the ground that the claimant had violated section 440.105, Florida Statutes, and was therefore barred by section 440.09(4) from entitlement to compensation. On appeal, this court reversed the order, finding that a JCC is not authorized under section 440.09(4) to make a section 440.105 determination, and the case was remanded for further proceedings.
On remand, the JCC denied a motion for reconsideration of his prior ruling on applicability of the intoxication presumption, relying upon the "law of the case" doctrine, and also reaffirmed his prior ruling on the applicability of the presumption, irrespective of "law of the case." The JCC's final order ruled that the accident and injuries were compensable, finding that the presumption of section 440.09(7)(b) does not apply to the facts of this case, that the claimant ingested cocaine within hours of the accident, but the accident was caused primarily by "fatigue brought on by seven hours of work, or simple inadvertence," and that the E/C failed to prove, by the greater weight of the evidence, that "the accident was occasioned primarily by Claimant's intoxication or the influence of a drug or alcohol on Claimant." The JCC found that the evidence would not have overcome the section 440.09(7)(b) presumption if it had been applicable, and rejected the claimant's contention that the employer had actual knowledge of his condition and expressly acquiesced in his presence in the workplace, which would have made the presumption inapplicable, but noted that these findings were not necessary to his decision on compensability.
The JCC accepted testimony of medical facility representatives that the carrier had given them express authorization to treat the claimant, found that good cause had been shown to excuse any late filing of medical bill
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