We have on appeal Hall v. Recchi America Inc. 671 So. 2d 197 (Fla. 1st DCA 1996) in which the district court of appeal expressly declared invalid the irrebuttable presumption provision of section 440.09(3) Florida Statutes (1991). We have jurisdiction. Art. V SEC. 3(b)(1) Fla. Const.

The relevant facts are set forth fully in the opinion below. In brief appellee Astley Hall sustained work-related injuries during the course of his employment at Recchi America. The undisputed evidence indicated that Hall was not responsible for the accident that caused his injuries. However the Court of compensation claims (JCC) denied Hall workers' compensation benefits because a urine test administered shortly after the accident revealed the presence of inactive marijuana metabolites in his system. The JCC relied upon section 440.09(3) Florida Statutes (1991) which states:

No [workers'] compensation shall be payable if the injury was occasioned primarily by the intoxication of the employee . . . . If there was at the time of the injury 0.10 percent or more by weight of alcohol in the employee's blood or if the employee has a positive confirmation of a drug as defined in this act it shall be presumed that the injury was occasioned primarily by the intoxication of or by the influence of the drug upon the employee. In the absence of a drug-free workplace program this presumption may be rebutted by clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury.

(Emphasis added.)

The district court of appeal held that the underlined portion of section 440.09(3) creates an irrebuttable (or conclusive) presumption that violates the constitutional right to due process. In reaching its conclusion Court applied the three-pronged analysis announced by this Court for determining the constitutionality of a conclusive presumption: (1) whether the concern of the legislature was reasonably aroused by the possibility of an abuse which it legitimately desired to avoid; (2) whether there was a reasonable basis for a conclusion that the statute would protect against its occurrence; and (3) whether the expense and other difficulties of individual determinations justify the inherent imprecision of a conclusive presumption. Markham v. Fogg 458 So. 2d 1122 1125 (Fla. 1984); Bass v. General Dev. Corp. 374 So. 2d 479 484 (Fla. 1979). According to the district court of appeal the irrebuttable presumption failed the three-pronged test because the expense and other difficulties of individual determinations did not justify the inherent imprecision of the conclusive presumption. Hall 671 So. 2d at 201.

We agree with the reasoning and result of the majority opinion below and adopt it in its entirety. To avoid any possible confusion we clarify that our holding invalidates the irrebuttable presumption altogether including where an employee's blood alcohol level is 0.10 percent or more by weight at the time of injury. Although the district court of appeal based its decision in part on the diagnostic limitations of urine testing *fn1 which is not used to test for alcohol Court did not rely on that reason alone. In determining that the conclusive presumption created a high potential for inaccuracy Court also relied on the fact that "[a] positive confirmation of a drug at the time of the industrial injury does not conclusively establish that the industrial accident was causally related to the intoxication of or the influence of the drug upon the employee." Id. That point was well illustrated in this case where it was uncontroverted that Hall was injured when a coworker tripped and jabbed a long steel apparatus into the back of his head. Court below also noted the feasibility of individualized determinations of causation.

We find the appropriate remedy is to excise the irrebuttable presumption provision from section 440.09(3) by removing the words "in the absence of a drug-free workplace program." Absent that clause the statute permits an injured worker to rebut the presumption by presenting clear and convincing evidence that the intoxication or influence of the drug did not contribute to the injury. We believe that the statute as modified continues to further the legislature's intent to discourage drug and alcohol abuse and maximize workplace productivity while at the same time respecting due process requirements.

Accordingly we affirm the decision below. We decline to address Hall's other arguments.

It is so ordered.

KOGAN C.J. and OVERTON SHAW HARDING and WELLS JJ. concur.

ANSTEAD J. dissents with an opinion.

Dissenting: The Hon. Justice Anstead

Although harsh it is apparent that the legislature has focused on alcohol abuse and illegal drug conduct as the basis for permitting the use of the conclusive presumption involved herein. In fact only the illegal drug use is involved in this case. Because the state has a very substantial interest in combating illegal drug use I would uphold the statute's constitutionality and invocation here. It is also clear in this case that the sanctions provided in the statute were well known to all and in essence made a part of the employment contract.