Raymond T. Pousson v. United Parcel Service

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-460

RAYMOND T. POUSSON

VERSUS

UNITED PARCEL SERVICE

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APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION - DISTRICT #3
PARISH OF CALCASIEU, NO. 03-09231
SAM L. LOWERY, WORKERS’ COMPENSATION JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Elizabeth A. Pickett, Judges.

AFFIRMED.

Brenda Lavergne Mistrot
Law Offices of Nan M. Landry
2014 West Pinhook Road, Suite 403
Lafayette, LA 70508
(337) 234-7200
COUNSEL FOR DEFENDANT/APPELLEE:
United Parcel Service

Kevin L. Camel
Cox, Cox, Filo, Camel & Wilson
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR PLAINTIFF/APPELLANT:
Raymond T. Pousson

AMY, Judge.

In this workers’ compensation matter, the claimant asserts that he was injured

while employed as a delivery driver. The employer has paid all medical expenses

related to the injury and initially paid the claimant weekly benefits. However, the

employer terminated the benefits when the claimant failed a drug screen which was

given after the claimant’s treating physician cleared the claimant to return to work.

The workers’ compensation judge dismissed the claims for indemnity benefits after

the work clearance, penalties and attorney’s fees, but ordered the employer to

continue to pay any medical fees related to the accident. For the following reasons,

we affirm.

Factual and Procedural Background

According to the record, on September 10, 2002, Raymond Todd Pousson was

employed by the United Parcel Service (“U.P.S.”) as a delivery driver, when he

sustained an injury to his right hip while getting out of the seat of his delivery truck.

U.P.S. and its insurer, Liberty Mutual, have paid for all medical treatment related to

the accident, including two arthroscopic surgeries. After the injury, U.P.S. also began

paying Mr. Pousson indemnity payments until August 28, 2003. On that date, his

orthopedic surgeon, Dr. John Noble, had an appointment with the claimant and

released him to return to work without restrictions.

Previously, in June 2003, Mr. Pousson voluntarily entered into an inpatient

drug rehabilitation program for a cocaine addiction; the program lasted for

approximately thirty days. U.P.S. paid for the inpatient program as well as an out-

patient treatment program thereafter. In connection with his treatments, Mr. Pousson

submitted to a drug screen on September 23, 2003, and tested positive for cocaine.

Mr. Pousson testified that after he received the positive results, he received a letter

stating that he had been terminated due to the positive drug screen and that his

workers’ compensation benefits were terminated without explanation.

Mr. Pousson filed a disputed claim for compensation with the Office of

Workers’ Compensation on December 23, 2003. Although U.P.S. initially asserted

that its termination of the claimant’s indemnity benefits was due to his “release[] to

return unrestricted to work on 8/28/03[,]” it later amended its answer to assert that the

claimant’s benefits were terminated due to his failure of his “return to work drug

screen after his release to return to work without restrictions[.]” Following a hearing,

the workers’ compensation judge dismissed Mr. Pousson’s claim for any further

indemnity benefits after August 28, 2003, but ordered U.P.S. to continue to pay his

medical expenses related to the accident. In oral reasons for ruling, the workers’

compensation judge concluded that Dr. Noble had released the claimant to return to

work without restrictions on August 28, 2003, and that U.P.S. had intended to put the

claimant back to work in some capacity prior to his failure to pass the drug screen.

The claimant appeals, asserting the following assignments of error:

1. The OWC judge erred in finding that Liberty Mutual met its burden
of proof on each of the requirements for the application of Louisiana
Revised Statutes 23:1221(3)(g).

2. The OWC judge erred in placing the burden of proof on claimant
Raymond Pousson with respect to the elements of proof required for the
application of Section 23:1221(3)(g).

3. The OWC judge erred in drawing all inferences and resolving all
doubts in the light most favorable to Liberty Mutual, the party that bears
the burden of proof, rather than resolving doubts and drawing inferences
in favor of the claimant.

4. The OWC judge erred in finding that the document introduced by
Liberty Mutual met the definition of a “written and promulgated
substance abuse policy” as defined by the applicable statutes and this
Honorable Court.

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Discussion

Because each of the assignments of error identified by the claimant relate to

whether the trial court was correct in its application of La.R.S. 23:1221(3)(g), we will

consider them together. The claimant offers numerous arguments on appeal in

support of his assertion that La.R.S. 23:1221(3)(g) is not applicable to the instant

matter. He alleges that U.P.S. never offered the claimant a position following his

accident, that the claimant was never actually released to return to work, that U.P.S.

did not maintain a written drug policy that required drug testing in order to return to

work, that the drug test was not administered pursuant to La.R.S. 23:1221(3)(g), and

that the positive drug screen did not prevent the claimant from qualifying for a

position with U.P.S.

To begin, we consider La.R.S. 23:1221(3)(g), which states:

When an injured employee has been released to return to work
with or without restrictions, and the employer maintains an established
written and promulgated substance abuse policy which requires
employer-administered drug testing prior to employment or return to
work, upon the employee’s failure to meet the requirements of such
employer’s established policy and inability to qualify for the position for
that reason, the obligation for all benefits pursuant to this Chapter, with
the sole exception of the obligation to provide reasonable and necessary
medical treatment, shall be terminated and the employee shall be subject
to the terms and conditions established in the employer’s promulgated
drug testing policy and program. The provisions of this Subparagraph
shall not apply to prescription medication prescribed for the employee
in the dosages so prescribed by a physician.

The workers’ compensation judge determined that La.R.S. 23:1221(3)(g) was

applicable in the instant situation and dismissed Mr. Pousson’s claims for indemnity

benefits, penalties and attorney’s fees while ordering that U.P.S. “continue to pay

medical benefits arising out of and relating to the injury sustained as a result of the

accident of September 10, 2002.” A workers’ compensation judge’s factual findings

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in a workers’ compensation case will not be overturned on appeal absent manifest

error. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696

So.2d 551. “In applying the manifest error-clearly wrong standard, the appellate

court must determine not whether the trier of fact was right or wrong, but whether the

factfinder’s conclusion was a reasonable one.” Id. at 556.

Our review of the record indicates that the parties have not disputed the

payment of the claimant’s medical expenses. The parties also do not dispute that

U.P.S. terminated the claimant’s indemnity benefits on August 28, 2003, following

an appointment with Dr. Noble. In his deposition, Dr. Noble stated that he “felt that

[the claimant] had reached maximum medical improvement, and he had a five percent

impairment of the hip.” Dr. Noble also stated that he released the claimant to return

to his job as a U.P.S. “deliverer” without restriction. Although he could not

specifically recall whether the claimant stated that he would be returning to his former

delivery position or to a lighter duty position, Dr. Noble stated that he remembered

the claimant telling him that wanted to return to work and that he was “capable of

doing it.”

The record also reveals that the claimant had participated in an inpatient drug

rehabilitation program at U.P.S.’ expense from June 10, 2003 until July 9, 2003 and

that he subsequently participated in an outpatient program. The claimant admitted

that on two occasions he violated the rules and regulations of the inpatient

rehabilitation program, and that he had relapsed and used cocaine during his

outpatient treatment.

Dwayne Adams, an operations supervisor at U.P.S., testified that due to the

claimant’s participation in a drug rehabilitation program, and his subsequent failure

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of a drug screen, he could not have returned to work in his capacity as a delivery

driver, but would have instead been given temporary alternate work. The claimant

also testified that after his rehabilitation program, he spoke with Gerry Hayden, the

designated U.P.S. representative for the claimant’s drug rehabilitation program. The

claimant stated that, based on their discussion, he thought that U.P.S. would create

a light duty job for him when he was ready to return. He also stated that he had told

his outpatient program counselor that he was going to be returning to work.

The claimant testified that he was aware that U.P.S. had a drug policy and that

he was aware that he would have to take a drug screen before returning to work. He

also stated that he was aware that U.P.S., as part of its rehabilitation program, could

require him to submit to a drug screen at any time throughout the next year. A copy

of a document titled “UPS Drug Alcohol Policy Section 2” was entered into

evidence.1 That policy prohibits employees from going on duty with a controlled

1
This “UPS Drug Alcohol Policy Section 2” states, in relevant part:

At UPS we have a vital interest in the safety of our employees and the general pubic.
By maintaining the highest standards for our employees we ensure the efficient and
safe operations necessary to provide reliable services to our customers. It is well
recognized that individuals who use illicit drugs or abuse alcohol are more likely to
have workplace accidents, incur greater amounts of lost time and perform their job
requirements in a substandard manner.

There is an even greater concern at United Parcel Service because of the nature of our
service. Therefore, it is our intent to continue to promote a safe and secure work
environment free of illicit drugs and alcohol abuse or use.

We maintain a drug-free and alcohol-free workplace. We maintain an Employee
Assistance Procedure to help our employees who may be suffering from substance
abuse. Any employee may volunteer for this service. Our Employee Assistance
Procedure assures that employees who develop drug or alcohol problems will have
access to medical evaluation and appropriate community-based treatment.

We prohibit the illegal possession, use, sale, distribution, dispensing, transfer or
manufacturing of a controlled substance or alcohol while at work, on company
property, or while on company business. No employee is permitted to go on duty or
remain on duty if he or she possesses or has the presence of an unauthorized
controlled substances [sic] or alcohol in their system. In addition, employees are not
permitted to go on duty or remain on duty if they may be impaired by the presence

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substance present in their system. It also requires a “fitness-for-duty medical

evaluation” where U.P.S. has been given reasonable cause to believe that an

employee has violated the policy. Mr. Adams testified that U.P.S. made new

employees aware of the policy upon their employment.

After his August 28, 2003 release to return to work from Dr. Noble, the

claimant was required by U.P.S. to take a drug screen, which was collected on

September 23, 2003. The record contains the deposition of Dr. H. D. Belk, the

Medical Director and Medical Review Officer for National Diagnostics, Inc.2 Dr.

Belk’s records state that the nature of the test was a “return to duty” substance abuse

exam. Documents from the laboratory that performed the testing, Northwest

Toxicology, also state that the reason for the test was for “Return to Duty” purposes.

U.P.S. had reserved the right to require a “fitness for duty” medical evaluation in its

drug and alcohol policy in order to maintain a drug- and alcohol-free workplace. The

parties do not dispute that the claimant failed the drug screen.

The evidence related above supports the workers’ compensation judge’s

determinations that upon the claimant’s release to return to work without restrictions

of an authorized [sic] controlled substance.

We also require, if necessary, a fitness-for-duty medical evaluation any time an
employee, by his or her actions or behavior, gives UPS reasonable cause to determine
whether an employee has violated the UPS Drug and Alcohol Policy.

United Parcel Service will comply with all U.S. Department of Transportation rules
and regulations concerning controlled substances and alcohol testing for government
mandated classifications of employees.
2
Dr. Belk testified that National Diagnostics, Inc. provides third-party administrative services
for companies in connection with drug testing including collection of drug samples and scheduling
lab analyses. In the instant matter, Dr. Belk stated that his company did not perform the laboratory
analysis, but instead received all nonnegative test results from the laboratory which did perform the
analysis including Mr. Pousson’s test results. A representative of National Diagnostics then
contacted Mr. Pousson, verified his identity, and offered to retest the sample. Dr. Belk stated that
the claimant declined to have the sample tested again and stated that he had used cocaine five days
before his drug screen.

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on August 28, 2003, U.P.S. intended to allow him to return to work in some capacity,

but that the claimant failed the drug test necessary for him to participate in U.P.S.’s

drug-free work environment. Based on our review of the record, we find no error in

the workers’ compensation judge’s dismissal of Mr. Pousson’s claims for indemnity

benefits, penalties and attorney’s fees. Accordingly, we affirm the judgment of the

Office of Workers’ Compensation.

DECREE

For the foregoing reasons, the workers’ compensation judge’s ruling is

affirmed. All costs of this proceeding are assigned to the plaintiff-appellant,

Raymond T. Pousson.

AFFIRMED.

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