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by Justice Paul E. Pfeifer
These days a lot of companies have an established drug testing policy in place for their employees. It seems that people have pretty much come to accept it as a fact of life in the modern world. The drug testing policies of professional sports leagues may get most of the attention in the news, but many people in the workforce are asked to pee in a cup as part of getting, or keeping, their job.
Here at the Supreme Court of Ohio we recently reviewed a workers’ compensation case that had as its focal point the issue of drug testing. The case involved a woman named Julia Beltre, who worked for a company called Cherryhill Management, Inc.
Cherryhill’s employment policy had drug- and alcohol-testing procedures that included among its list of requirements for employees that: “All employees may be subjected to a reasonable cause drug testing and breath analyzer testing.” It also stated: “All employees of Cherryhill Management, Inc. involved in an accident, while on Company time, will be subjected to a drug screening and/or breath analyzer to determine if drugs or alcohol played a role in the accident.”
Another provision of the policy said: “Employees who need medical treatment as a result of an injury must request that a drug and alcohol screening be performed by the medical provider.”
And finally: “Employees identified as possibly having prohibited substances in their system and who refuse to sign a consent release form for a urinalysis and breath analyzer test may be disciplined up to and including discharge of employment.”
On March 15, 2005, Julia Beltre was lifting a box at work when she hurt her right shoulder and upper back. She reported to an urgent care center for treatment later that day. The record of her case contained no medical records from that visit or any details regarding her injuries. But there was an affidavit from Pam Thrasher, an employee at the urgent care center.
According to the affidavit, Pam Thrasher directed Julia to supply a urine sample. Through a Spanish interpreter she instructed Julia on how to proceed. Pam said that Julia nodded her assent and acted as if she needed to urinate immediately.
Through the closed restroom door, Pam heard Julia urinate into the toilet. She emerged with a sample of only 10 milliliters, which was 60 milliliters less than what was required for testing.
Twice more Julia returned to the restroom to try, but she failed to produce the required sample. In her affidavit, Pam Thrasher concluded: “In my opinion, Julia Beltre refused to cooperate and follow the directions of the drug/alcohol test.”
The next day, Julia visited a local hospital with complaints of cervical and shoulder pain. A urine test performed on a sample collected at that time was negative for drugs.
But despite this second test, Cherryhill fired Julia Beltre. The management company stated that it fired Julia for refusing to submit to a drug test on the date of her injury, and referred to the Pam Thrasher affidavit.
Julia eventually filed a workers’ compensation claim for temporary total disability. Her case ended up before the Industrial Commission of Ohio, the administrative arm of Ohio’s Bureau of Workers’ Compensation.
In a hearing before the Industrial Commission, Cherryhill argued that the misconduct leading to Julia’s firing was tantamount to a voluntary abandonment of her former position of employment. In other words, Cherryhill maintained that by violating the terms of the drug and alcohol policy, Julia was, in essence, voluntarily leaving her job.
Because a voluntary abandonment of the former position of employment bars compensation for temporary total disability, Cherryhill argued that Julia’s claim should be denied.
But a district hearing officer disagreed. The officer found there was not persuasive evidence of Julia’s deliberate failure to cooperate or refusal to submit to drug testing. The district hearing officer accordingly found no evidence that Julia had voluntarily violated Cherryhill’s work policy, and hence, no evidence that she had voluntarily abandoned her job.
A staff hearing officer – the next level up in the hierarchy of hearing officers – affirmed the district hearing officer’s finding. The staff hearing officer also added that the drug test outlined in Cherryhill’s policy was not a qualifying drug test that would prevent compensation for Julia’s injury.
After that ruling by the Industrial Commission, Cherryhill filed a complaint with the court of appeals alleging that the Industrial Commission had abused its discretion in awarding Julia compensation for temporary total disability. But the court of appeals disagreed, which prompted Cherryhill to file an appeal with our court.
We were asked to determine whether the Industrial Commission abused its discretion in finding that Julia Beltre did not voluntarily abandon her former position of employment by refusing a drug-screening test.
Cherryhill, in effect, argued that without evidence to the contrary, the Industrial Commission must accept Pam Thrasher’s affidavit as persuasive. Not stopping there, Cherryhill also argued that the Commission was required to explain why the affidavit was unconvincing.
Both propositions lacked merit. Our court has previously established – through our decisions in earlier cases – that the Industrial Commission is exclusively responsible for evaluating the weight and credibility of the evidence before it. We have also established that the Commission is obligated only to identify the evidence on which it relied in making a decision. And finally, the Industrial Commission is not required to explain why a document was found unpersuasive.
Therefore, by a seven-to-zero vote, we determined that the Industrial Commission of Ohio did not abuse its discretion in rejecting Pam Thrasher’s affidavit. Nor did the Commission abuse its discretion in refusing to find that Julia Beltre did not comply with Cherryhill’s testing requirement.EDITOR'S NOTE: The case referred to is State ex rel. Cherryhill Mgt., Inc. v. Indus. Comm., 116 Ohio St.3d 27, 2007-Ohio-5508. Case No. 2006-1930. Opinion Per Curiam.