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Brinson v. Hospital Housekeeping Services, LLC

Florida Court of Appeals, First District

June 22, 2018

Bonita Brinson, Appellant/Cross-Appellee,
v.
Hospital Housekeeping Services, LLC, and Broadspire, Appellees/Cross-Appellants.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          Date of Accident: June 29, 2015.

          On appeal from an order of the Judge of Compensation Claims. John J. Lazzara, Judge.

          Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for Appellant/Cross-Appellee.

          Gwen G. Jacobs of Bennett, Jacobs & Adams, P.A., Tampa, for Appellees/Cross-Appellants.

          OSTERHAUS, JUDGE

         Bonita Brinson failed two illegal-drug tests after falling and injuring her shoulder on the job at the hospital. She later sought workers' compensation benefits, but was denied by her employer-carrier because of the failed tests. See § 440.09(3), Fla. Stat. (2017). Ms. Brinson challenged the denial of benefits. But because she failed to rebut the statutory presumption attributing her injury primarily to the influence of drugs, see § 440.09(7)(b), we affirm the Judge of Compensation Claims' decision to deny benefits.

         I.

         Ms. Brinson was working as a housekeeper at a hospital when towards the end of her shift, she fell and dislocated her left shoulder. After the accident, a housekeeping supervisor transported Ms. Brinson to a local medical clinic where she provided a urine sample pursuant to her employer's post-accident, drug-testing policy. She failed the tests by testing positive for the presence of marijuana metabolites on two tests, an immunoassay test and a confirmatory gas chromatography mass spectrometry test.

         When the employer hired Ms. Brinson, she signed a stipulation acknowledging the employer's drug testing policy, which said:

I have been fully advised that if I am injured on the job, regardless of how minor the injury may seem, I am to report that injury to my supervisor. All employees that are injured are subject to a drug test.

(Emphasis in original.) She also signed a "Drug Free Awareness" policy at work acknowledging that she "may be asked to provide (if there is reasonable suspicion . . .) body substance samples . . . to determine whether illicit or illegal drugs . . . have been or are being used."

         Because of the positive tests, the employer-carrier denied Ms. Brinson's subsequent claim for workers' compensation benefits.

         II.

         When an injured employee tests positive for drugs after an accident, like Ms. Brinson did, Florida's workers' compensation law "presume[s] that the injury was occasioned primarily . . . by the influence of the drug upon the employee." § 440.09(7)(b), Fla. Stat. And it does not compensate for the injury. § 440.09(3), Fla. Stat. The law allows the injured employee, however, to rebut the statutory presumption denying compensation by presenting clear and ...


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