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A worker who was terminated while on restricted work duty because of an injury may be entitled to temporary partial disability benefits despite testing positive for alcohol on the job.
In Krysiak v. City of Kissimmee, the First District Court of Appeal in Tallahassee on Thursday in a 2-1 decision vacated a Judge of Compensation Claims holding that the injured worker was not entitled to benefits because of his misconduct.
Marek Krysiak worked as a utility technician for the City of Kissimmee when he sustained an injury to his left shoulder on the job in October 2016. Earlier that year, he had been reprimanded for purchasing beer in a city vehicle, signed a last-chance warning and completed an employee assistance program.
In October 2017, he was back to full duty work but still receiving temporary partial disability benefits and missed several days of work without calling in. A letter was drafted to notify Mr. Krysiak that his absence would be considered job abandonment, but he returned to work before the letter was sent. The HR director testified that the supervisor reported to her that Mr. Krysiak did not “look ready for work” on the day that he returned and he was sent for alcohol and drug testing.
The city had a policy prohibiting workers from being under the influence of alcohol while at work, but the policy does not designate a specific prohibited alcohol level or define the phrase “under the influence.” When his test came back positive for alcohol, he was terminated on Oct. 31, 2017, for violating the city’s substance abuse policy.
A Judge of Compensation Claims concluded that Mr. Krysiak’s claim for temporary partial disability benefits was barred on the grounds he was terminated for misconduct. He appealed, arguing that the judge erred and that the record did not support a finding that he was “under the influence” when he was discharged. However, the city did not provide evidence of the test results or admissible evidence interpreting the results.
The appellate court agreed, holding that a second-hand description of Mr. Krysiak’s appearance on the day of his testing and subsequent termination was insufficient, and without evidence of test results, there was no competent, substantial evidence to support the judge’s finding of misconduct. The appellate court found that the judge relied on the HR director’s testimony, which was “inadmissible hearsay.”
The appellate court, therefore, reversed the Judge of Compensation Claims’ finding of misconduct and remanded the case with instruction to reconsider the claim for temporary partial disability benefits.
The dissenting judge said he concluded that “competent, substantial evidence” supported the Judge of Compensation Claims’ finding that Mr. Krysiak was guilty of misconduct.
A worker who did not report her on-the-job injury for more than a week may receive disability benefits and medical care, an Arkansas appellate court held Wednesday.