After due notice to all interested parties a Final Hearing on the merits of the above referenced claim was held on July 22 1994 and concluded on September 26 1994. The undersigned Court of Compensation Claims ruled in summary manner pursuant to SEC..25(3) (d) Fla. Stat. on October 27 1994.

Issues and Defenses

At the Final Hearing the claim was for compensability; medical treatment and payment of medical expenses incurred; temporary total/temporary partial wage loss from 1/12/93 to present and continuing; penalties interest costs and Counsel's fees. *fn1

Exhibits and Witnesses

The following documents were received into evidence: The July 2 1993 Pre-trial Stipulation as a Court's Exhibit; the depositions of co-workers William Sheppard Dennis Majors and Charles Langstaf as Claimant's Exhibits; and as employer/carrier exhibits a 9/14/92 Drug Free Workplace notice; an employer 16 page memorandum; a 9/14/92 employer one page memorandum; as well as the Claim for Benefits Acknowledgment and Notices of Denial.

Testifying in person before me were the claimant and Mr. Ronald Yatsko the Safety Manager for the employer (in Tampa) on the accident and testing dates.

Findings

Having the opportunity to review the documentary matters and having the opportunity to observe the candor and demeanor of the witnesses who appeared and gave testimony and having considered the applicable case law I resolve all conflicts of fact in the evidence presented and find as follows:

1. On January 11 1993 at a little after 7:00 a.m. the claimant an employee of Henkel & McCoy was injured in South Dade in the course and scope of his employment as a telephone lineman during the post-Hurricane Andrew period. A telephone pole was dropped by the claimant's coworkers which pole hit a tire and bounced backward striking the claimant in the face and mouth.

2. The claimant sustained physical injuries requested immediate medical attention and -- twenty-nine hours after the accident -- was sent to give a blood and alcohol test prior to and as a condition to his receiving medical attention.

3. The claimant had given a pre-employment urinalysis and did in fact give a urinalysis on the day after the date of the accident when it was first requested. The claimant sufficiently completed the paperwork pertaining to the drug testing when he gave the urinalysis. The claimant had not been required at any time previously to provide a blood test sample certainly not as part of the pre-employment test (when there were lectures as to working in the post-Hurricane setting and the employer's drug-free work place) nor at any later time as any kind of random drug testing.

4. Nothing was offered to contradict the fact -- which fact I specifically find -- that the claimant has been a recovering alcoholic *fn2 for more than a decade (whose last drink was in 1982) and there is absolutely no question at all in this case that the claimant was not impaired when the accident happened; his co-workers also buttress this finding. The testimony before me revealed the claimant to be extremely credible.

5. While the claimant refused to give the blood alcohol test as already stated he did not refuse the post-accident urinalysis testing twenty-nine hours after the accident. Significantly the employer destroyed the urinalysis provided the day after. *fn3

6. Concerning the benefits sought the medical attention rendered for the head teeth and mouth injuries was necessary and reasonable. However as to the indemnification the claimant certainly was ready willing and able to work subsequent to the accident received unemployment and consequently there was not competent substantial evidence showing the necessary nexus between the injuries and the claimant's subsequent loss of income. (In passing I note that the claimant has been rehired by the same named employer [Henkel & McCoy different division] in his home state of Pennsylvania.

Conclusions

7. What is required in Section 440.102(4) Fla. Stat. (1991) - including particularly as to "reasonable suspicion"-- is not factually present in this matter not even by way of inference. Moreover the ambiguity of what is set out in the employer's memo [blood test required after accident for employee "whose [job] performance ...cannot be completely discounted as a contributing factor] along with the obvious confusion that the policy engendered in the claimant and other employees as to what would be required regarding post-accident testing [matters were paraphrased at the employees' meeting; while drug testing and urinalysis mentioned blood testing not] are sufficient for me to find the employer/carrier has not sufficiently supported its defense that the claimant refused to provide the employer-required post-accident testing.

8. The facts here simply do not fit within the argued statutory purpose of Section 440.102 Fla. Stat. no matter how necessary and worthy the statute; to deny workers' compensation benefits in this unique fact situation would be patently unfair.

IT IS therefore ORDERED and ADJUGED that:

A. The accident is compensable;

B. The claimant is entitled to reasonable medical care and attention which by agreement are to be handled administratively upon proper and complete submission;

C. The claimant's Counsel is entitled to a fee and taxable costs for which jurisdiction is reserved as to the amounts; and

D. The claim for indemnification is denied.

DONE and ORDERED in chambers in Miami Dade County Florida.