In Pennsylvania Case, Worker did not Commit Benefits-Disqualifying Misconduct by way of his Inability to Engage in Direct-Observation Urine Test

          The Pennsylvania Commonwealth Court, affirming the WCJ and Board, has held that the claimant, after an acknowledged injury, successfully proved his ongoing TTD case, despite the employer’s argument that he had (this writer’s term) engaged in post-injury misconduct (to wit, a purported willful refusal to undertake a drug test) such that he had been fired for the same and was necessarily not available for potential modified work.  The WCJ – the Board and court explained – had found as hard fact that the claimant, after having provided the required urine sample, had been unable to provide a second under-personal-observation sample, and hence he had not in fact engaged in a willful refusal to undergo drug testing. 

        The case is Bear Staffing v. Shawn Logan (WCAB), No. 949 C.D. 2020, filed October 15, 2021, 2021 WL 4806715 (Pa. Commw. 2021).

        As noted below, the Ohio Supreme Court, in a case called Lunsford, addressed the issue of direct-observation urine screening in an August 2020 case. 

        Claimant, Logan, was employed – via the defendant staffing company – at a chocolate factory.  He fell and struck his head, became unconscious, and was taken away to the emergency room.  The next day, he reported, as requested, to WorkNet.  There, he was negative for alcohol use.  He also provided a urine sample, but it exceeded the temperature threshold (100 degrees), so the sample was considered invalid.  Claimant was immediately asked to provide a second sample. He entered a private room with the WorkNet physician Dr. Oteri (later to testify) for personal observation of the second urinary discharge. Claimant, however, was to state that he was unable to provide a second sample (1) immediately after the first; and (2) under personal observation.  He thereafter left the facility angry and objecting that the process violated his privacy rights.   

          The carrier issued a medical-only NCP but, at the same time, employer fired claimant. Employer, throughout, took the position that claimant, by being fired for violation of the drug-testing policy, had committed such misconduct that he could not be considered for modified work.  Employer hence took the position that the immediate cause (DBT term) for claimant’s loss of earning power was not his injury but, instead, his own fault.     

          In the claim-petition proceedings which followed, the claimant testified and also presented his medical expert.  Employer presented an IME – which had supplied an opinion that supported a cross-petition for termination.  Employer, meanwhile, presented its representative to explain the firing, and the testimony of Dr. Oteri and another WorkNet employee as well.

          The WCJ granted ongoing benefits; he “expressly [and repeatedly] credited Claimant’s testimony that he did not intentionally refuse to comply with Employer’s drug-testing policy, and that he was unable to comply because he could not produce a second urine sample while being observed….”  Meanwhile, the judge generally credited employer’s testimony that it had drug a policy and that claimant had agreed to the same when first employed.  As to the medical, he credited claimant’s physician as to disability and discredited the IME. 

          The Appeal Board affirmed, as has Commonwealth Court. 

          True, certain post-injury conduct on the part of an injured worker that results in termination can act as a superseding cause (DBT term) in the disability analysis.  This is so if the firing disqualifies the worker from presumably available modified duty. See Stevens v. WCAB (Consolidation Coal Co.), 760 A.2d 369 (Pa. 2000) (“once a loss of earning capacity has been demonstrated, the claimant generally should be entitled to disability benefits; however, such benefits are not warranted where the employer can demonstrate that employment is available within the claimant’s restrictions or would have been available but for the claimant’s lack of good faith resulting in a discharge from employment.”). And see Edwards v. WCAB (Sear’s Logistics), 770 A.2d 805 (Pa. Commw. 2001) (principle applied to disqualify claimant).     

          The conduct, however, does not precisely equal willful misconduct as defined under the unemployment compensation law.  In workers’ compensation, the leading case articulates the test of willfulness for bad faith/fault purposes as follows: “to make out ‘bad faith’ or ‘fault on the part of the discharged claimant,’ if an employer only shows that he or she ‘would if he or she could,’ then ‘bad faith is not shown and benefits should continue ….; but if an employer establishes that the claimant ‘could if he or she would, and didn’t,’ ‘bad faith is established and a claimant is not entitled to ... benefits.” Slip op. at 12-13 (citing Virgo v. WCAB (County of Lehigh-Cedarbrook), 890 A.2d 13 (Pa. Commw. 2005)).

          Here, the court stated, “[t]he WCJ’s findings … amply support the proposition that, with respect to providing a second urine sample under observation, Claimant ‘would if he could,’ but he could not.”

          In essence, the manner in which the WCJ found the facts (a point which both Board and court emphasized) as to the WorkNet encounter was the beginning and end of the critical analysis.

Note 1: The claimant argued on appeal that the employer’s proofs of supposed forfeited job availability were deficient, as no specifically-forfeited job meeting claimant’s restrictions had been evidenced.  The court identified but did not decide the issue.  The point is certainly of interest; with the rise of the contingent workforce and its many temp and staffing agencies, how the latter are to accommodate light-duty workers has been an issue.  Presumably their clients are not interested in providing such work – the whole idea of using a staffing company is flexibility and the lean payrolls that flexibility facilitates. Staffing companies, meanwhile, have no real worksites of their own.  

Note 2: In 2020, the Ohio Supreme Court addressed a similar situation involving direct-observation.  Lunsford v. Sterilite of Ohio, 165 N.E.3d 245, 2020 WL 5033054 (Ohio 2020).  This type of requirement is apparently widespread.  See Angela Childers, Ohio Employers Have Right to Directly Observe Workers’ Urine Screens, Business Insurance (8.8.2020),   https://www.businessinsurance.com/article/20200828/NEWS08/912336377/Ohio-employers-have-right-to-directly-observe-workers’-urine-screens-Lunsford-v?utm_campaign=BI20200828BreakingNewsAlert&utm_medium=email&utm_source=ActiveCampaign&utm_campaign=BI20200828BreakingNewsAlert&utm_medium=email&utm_source=ActiveCampaign.

Full Text: https://www.pacourts.us/assets/opinions/Commonwealth/out/949CD20_10-15-21.pdf?cb=1.