AFTER DUE notice to the parties a hearing was conducted before the undersigned Court of Compensation Claims on March 24 1994 at 1:30 p.m. in West Palm Beach Palm Beach County Florida. The parties stipulated to the following:

A. The Court of Compensation Claims has jurisdiction of the parties and subject matter.

B. Notice of accident and notice of hearing were timely given to the proper parties.

C. An accident occurred in Palm Beach which arose out of and occurred in the course and scope of employment with the employer herein.

D. The Claimant's accident and injuries have been accepted as compensable by the Employer/Carrier (E/C).

E. Workers' Compensation coverage was in effect on the date of accident (D/A).

F. Any claimed outstanding medical bills will be handled administratively.

G. Following the hearing the parties stipulated that the Claimant's average weekly wage from 11/3/93 through the present and ongoing amounts to $472.34 with a compensation rate of $314.89 which includes the value of all fringe benefits.

H. Jurisdiction is reserved on the issue of entitlement and amount of Counsel's fees and taxable costs.

I. The parties stipulated that the employer had a bona fide drug-free workplace in effect on the Claimant's (D/A) pursuant to a stipulation and order dated 3/17/94.

J. The claim is for the following:

1. Payment of temporary total disability benefits (TTD) on 11/4/93 and 11/5/93.

2. Payment of temporary partial disability benefits (TPD) from 11/15/93 through 3/24/94.

3. Authorization for care and treatment by an orthopedic physician.

4. Interest and penalties on all compensation benefits awarded.

K. E/C takes the following positions:

1. The Claimant waived his right to compensation and medical benefits because the Claimant tested positive for Codeine and therefore waived his right to future compensation and medical benefits pursuant to Florida Statute Section 440.101 (7/1/90) and Section 440.102 (7/1/90) since the employer had a drug-free workplace in effect.

2. The Claimant is not entitled to any compensation benefits from 11/16/93 forward pursuant to Florida Statute Section 440.15 (3)(b) since the Claimant doesn't have any limitations and restrictions which would prevent him from performing his customary employment.

3. The Claimant is not entitled to any compensation benefits from 11/16/93 forward pursuant to Florida Statute Section 440.15 (3)(b) because he sustained a 0% impairment rating in accordance with the Florida Impairment Rating Guide.

4. The Claimant is not entitled to any compensation benefits because he failed to perform a valid job search.

5. The Claimant is not entitled to any compensation benefits because he voluntarily limited his income.

6. The Claimant is not entitled to any compensation benefits from 12/19/93 through 2/26/94 pursuant to Florida Statute Section 440.15 (3)(b) because the Claimant failed to submit wage loss forms in a timely fashion.

7. The Claimant is not entitled to any orthopedic care since he violated the employer's drug-free workplace and therefore waived his right to medical care pursuant to Florida Statute Section 440.101 (7/1/90) and 440.102 (7/1/90).

8. No penalties are owed since the E/C filed a timely Notice to Controvert.

9. Interest is not owed on any medical benefits and would only be owed on compensation benefits not paid within 14 days from when they became due.

10. In the event that any compensation benefits are awarded then the E/C is entitled to an unemployment offset and is entitled to apply the Claimant's post injury earnings from Denny's Restaurant to wage loss (WL) formula.

L. Upon consideration of the evidence presented the arguments of Counsel and the stipulations of the parties the undersigned finds as follows:

1. The stipulations of the parties as listed above are accepted by the Court of Compensation Claims as findings of fact.

2. The Claimant testified at the merits hearing. The Claimant is a 34 year old male. He was hired by the employer as a warehouse loader in approximately August of 1992. His job consisted of stacking cases of cans and bottles onto pallets and loading the pallets onto large trucks.

3. The Claimant testified that he passed the employer's initial drug test and also passed at least two other drug tests that were administered to him prior to his 11/3/93 date of accident (D/A). The Claimant further testified that he was aware that the employer had a drug-free workplace in effect and he also admitted that he was provided with a copy of their policy. The Claimant testified that he knew it was illegal to take medications that were not prescribed to him.

4. The Claimant pulled a muscle in his low back on 11/3/93 while lifting a case of 20 oz. bottles of Pepsi. The Claimant testified that his accident occurred at approximately 7:00 p.m..

5. The Claimant's immediate supervisor Gary Walker had been in contact with Gerry Hoeffner the director and superintendent of safety immediately following the claimant's accident. According to the Claimant Gary Walker informed him that he would forfeit his right to workers' compensation benefits if he insisted on going to the emergency room following his accident. The Claimant testified that his wife gave him Tylenol #3 with Codeine to relieve his pain when he went home that evening. According to the Claimant it never occurred to him that he was taking a controlled drug when he ingested the Tylenol #3 with Codeine. The Claimant further indicated that he was simply concerned with his pain at the time that he took the controlled drug. The Claimant waited until the following morning before he sought medical care with Dr. Greer.

6. The Claimant was treated by Dr. Greer on three occasions and tried to return for a follow-up visit on 1/18/94 but was informed that the carrier would not authorize any additional treatment because he had tested positive for Codeine.

7. The Claimant indicated that he was released to light duty work by Dr. Greer on 11/8/93 which consisted of avoiding heavy lifting. Dr. Greer also advised him to be careful and to use common sense and to continue to take anti-inflammatory medication. The Claimant went back to work on 11/8/93 in a light duty capacity on the product line.

8. The Claimant was released to full duty work on 11/16/93 and attempted to return to work but was told that he was terminated because he failed his drug screen. The Claimant hasn't worked anywhere since being terminated by the employer other than for Denny's Restaurant where he worked for three days in late November of 1993.

9. The Claimant indicated that he initially performed a valid job search and proceeded with sending his WL forms to the carrier but then stopped turning them in after his benefits were denied. The Claimant did not see any point in continuing to send in WL forms if the carrier was going to continue to deny them.

10. The Claimant felt that he was capable of working 40 hours per week but could not perform the lifting requirements of his regular position with the employer. The Claimant admitted that he was physically able to continue working in a light duty capacity which is the type of work he was performing for approximately one week following his D/A. The Claimant admitted that he worked in a light duty capacity for the employer prior to his D/A whenever his back acted up.

11. The Claimant admitted that he was involved in a motor vehicle accident (MVA) in 1989 from which he sustained a low back injury. The Claimant was treated by Dr. Fishman and several other physicians as a result of that accident. According to the Claimant he was not having any back problems as the result of his prior MVA when he started working for the employer in August of 1992. The Claimant also admitted that he was involved in a subsequent MVA on 11/23/93 in which he sustained a neck injury. The Claimant denied injuring his low back in the subsequent MVA. The Claimant is being treated by Dr. Corry for his subsequent neck injury.

12. The Claimant's wife Elaine Gaines-Johnson also testified at the merits hearing. Mrs. Johnson testified that her husband was in a lot of pain when he came home on 11/3/93 and that he would hardly walk. Therefore because she was concerned about his pain she gave him one Tylenol #3 with Codeine pill which had been prescribed to her.

13. Gerry Hoeffner the director and superintendent of safety also testified at the merits hearing. He admitted that he did not permit the Claimant to see an emergency room physician following his accident. Gerry Hoeffner felt that the Claimant's low back injury was not a life or death situation which required emergency care. Gerry Hoeffner indicated that following the accident he spoke to Gary Walker who was in direct contact with the Claimant. Gary Walker did not give Gerry Hoeffner any indication that the Claimant was insisting on being treated by a physician on the evening of the accident. The employer's general policy was to send their injured workers to Dr. Greer's office unless their injury amounted to an emergency and in that case they were taken to the emergency room immediately.

14. Gerry Hoeffner admitted that all of the other drug tests that had been administered to the Claimant were negative. However the Claimant's prior drug test results were not relevant to his decision to terminate the Claimant on 11/16/93 based on the Claimant's positive drug screen for Codeine. Furthermore although Gerry Hoeffner did not suspect that the Claimant was suffering from any drug related problems based upon his job performance this was also insignificant. Gerry Hoeffner indicated that he was simply following the employer's strict drug-free workplace policy which required him to terminate all employees who violated the policy.

15. Gerry Hoeffner testified that all employees are advised that taking prescriptions drugs that are not prescribed to them is against the employer's drug-free workplace policy. All new employees are given extensive guidelines which outline the employer's drug-free workplace policy at the time of hire and are also advised of employer's policies through various group meetings which they are required to attend. Gerry Hoeffner testified that when the Claimant was confronted about his positive drug test he admitted that he took Tylenol #3 with Codeine which he obtained from his wife.

16. Gerry Hoeffner testified that the Claimant would have been returned to his regular position which met Dr. Stashak's limitations and restrictions if he had never been discharged for testing positive to Codeine. Furthermore a light duty position was available to the Claimant if he was not able to handle a moderate duty job. According to Gerry Hoeffner the Claimant had worked in a light duty capacity in the past when his low back acted up without any difficulty. Gerry Hoeffner also indicated that the employer had enough work available to keep the Claimant busy on a full time basis in a light duty capacity but the Claimant's pay would have been reduced to $6.50 per hour.

17. Ruth Weaver the adjuster responsible for handling the Claimant's file for Kemper National Services also testified at the merits hearing by telephone. Ruth Weaver testified that on 3/14/94 she received the Claimant's request for WL benefits covering the periods from 12/19/93 through 2/26/94 along with a cover letter dated 3/11/94. The only other TPD or WL request forms that she received covered the periods from 11/3/93 through 11/12/93 11/29/93 through 12/10/93 and 12/5/93 through 12/18/93.

18. Dr. Robert C. Greer IV an osteopathic physician testified by deposition which was introduced into evidence without objection. The parties stipulated that Dr. Greer is an expert in osteopathic medicine and that he is an expert in treating low back injuries. Dr. Greer has been the Claimant's primary treating physician for his low back injuries since December 29 1992. Dr. Greer testified that he initially treated the Claimant on 11/4/93 following his D/A. Dr. Greer diagnosed the Claimant as suffering from a lumbar sprain/strain and felt that he was capable of working light duty work as of 11/4/93. During his follow up exam on 11/8/93 Dr. Greer noted some improvement in the Claimant's low back condition. During the office visit of 11/16/93 Dr. Greer noted that the Claimant felt that he was ready to return to work and Dr. Greer's own impression was that the Claimant's lumbar sprain/strain had resolved and that he was able to return to work on a full duty basis.

19. Dr. Greer testified that within a reasonable degree of medical certainty the Claimant attained maximum medical improvement (MMI) on 11/16/93 and found that he sustained a 0% impairment rating in accordance with the Florida Impairment Rating Guide. Dr. Greer based his opinion on the fact that the Claimant did not display any objective signs of continuing impairment or dysfunction; Dr. Greer further testified that as of 11/16/93 the Claimant was capable of working full duty for the employer which consisted of loading trucks on a daily basis for approximately 40 hours per week.

20. Dr. Greer further testified that the Claimant did not need any additional medical care as of 11/16/93. Dr. Greer also testified that if the Claimant is currently in need of medical care then the Claimant's subsequent MVA of 11/23/93 could be the sole cause of his current need.

21. Dr. Gerald Stashak also testified by deposition which was introduced into evidence without objection. The parties stipulated that Dr. Stashak is an expert in orthopedic surgery. Dr. Stashak testified that the Claimant was initially examined by his associate Dr. Eric Fishman on 5/9/90 for back and neck complaints stemming from a MVA of 8/20/89. Dr. Fishman diagnosed the Claimant as suffering from a cervical/lumbar strain and gave the Claimant a 4% to 5% impairment rating in accordance with the AMA Guidelines on 3/30/92 due to the loss of range of motion in the cervical and lumbosacral spine and continued spasms in the left trapezial region. Dr. Stashak opined that 50% of the overall impairment rating was attributable to the cervical injury and 50% was attributable to the lumbar injury.

22. On 3/9/94 Dr. Stashak performed an IME on the Claimant and noted that the Claimant was suffering from a lumbosacral strain as the result of his 11/3/93 accident. Dr. Stashak felt that as of 3/9/94 the Claimant was capable of working in a light to moderate duty capacity. Dr. Stashak placed the following limitations and restrictions upon the Claimant: lifting and carrying up to 15 pounds on an occasional basis and up to 20 pounds on a repetitive basis; avoid continuous bending stooping or kneeling; working up to five days a week for eight hours a day and avoid standing or walking on an uninterrupted basis in excess of three hours at a time. Dr. Stashak further testified that as of 3/9/94 the Claimant would be able to load and unload cases of Pepsi eight hours per day provided that he was not required to carry out this activity for eight hours per day on an uninterrupted basis.

23. According to Dr. Stashak the Claimant's low back strain was an exacerbation of his prior low back injury stemming from his motor vehicle accident of 8/20/89. Dr. Stashak was not sure why he never placed the Claimant at MMI since his 3/9/94 exam took place four months and six days after the Claimant's D/A. Dr. Stashak opined that the Claimant was never placed at MMI because his office has a policy of deferring the question of MMI until six to nine months after the D/A. However Dr. Stashak testified that the Claimant had attained MMI for his 8/20/89 accident since the last time Dr. Fishman saw him on 3/30/92 but indicated that the Claimant would experience occasional periods of exacerbation which is what the Claimant was suffering from at the time of his evaluation. Dr. Stashak opined that the Claimant would not sustain any additional impairment to his lumbosacral spine as a result of the 11/3/93 accident. Dr. Stashak also testified that the Claimant needed future medical care consisting of anti-inflammatory medication and three weeks of formal physical therapy for his lumbosacral strain resulting from his 11/3/93 accident.

24. Dr. Mark L. Corry testified by deposition which was also introduced into evidence without objection. The parties stipulated that Dr. Corry is an expert in chiropractic medicine. Dr. Corry treated the Claimant for a cervical sprain that he sustained as the result of a subsequent MVA which occurred on 11/23/93. Dr. Corry diagnosed the Claimant as suffering from a hyperflexion/hypertension injury of the cervical spine which he described as a whiplash-type injury. Dr. Corry opined that the Claimant was not capable of working from 11/23/93 through 3/3/94 due to his neck injury. Dr. Corry also testified that the Claimant would only be able to return to work in a light duty capacity as of 3/4/94 on a part-time basis consisting initially of five to ten hours per week. According to Dr. Corry the Claimant would need to continue to receive chiropractic care twice a week consisting of office visits lasting from 30 to 45 minutes per visit. Dr. Corry indicated that if the Claimant returned to work then he would need to take time off from work to continue to receive chiropractic care.

25. I find that although the uncontradicted evidence reveals that the Claimant testified positive for Codeine after his 11/3/93 accident he did not forfeit his right to compensation and medical benefits pursuant to Florida Statute Section 440.101 (7/1/90) even though the employer had a drug-free workplace in effect at the time of his accident. I base this finding on the fact that Florida Statute Section 440.101 (7/1/90) requires that causation exists between the controlled drug and the industrial accident in order for the Claimant to forfeit his right to compensation and medical benefits even if a drug-free workplace is in effect. This is evidenced by the clear language found in Section 440.101 (7/1/90) which states that:

It is the intent of the Legislature to promote drug-free workplaces in order that employers in the state be afforded the opportunity to maximize their levels of productivity enhance their competitive positions in the marketplace and reach their desired levels of success without experiencing the costs delays and tragedies associated with work-related accidents resulting from drug abuse by employees. (Emphasis added)

It is clear from the testimony and the uncontradicted evidence that the Codeine taken by the Claimant was not a causative factor in the Claimant's accident which is evidenced by the fact that the Claimant took the controlled drug after the accident. Therefore I find that the Claimant did not waive his right to compensation and medical benefits pursuant to Florida Statute Section 440.101 (7/1/90).

26. Based upon the medical testimony of Dr. Greer I find that the Claimant attained MMI on 11/16/93 and that he sustained a 0% impairment rating in accordance with the Florida Impairment Rating Guide. I note that Dr. Stashak testified that the Claimant had not technically reached MMI because a sufficient amount of time had not elapsed since his injury. However Dr. Stashak made it clear that the Claimant would not sustain any additional impairment as the result of his 11/3/93 accident. Thus both Dr. Greer and Dr. Stashak were consistent in their testimony that the Claimant would not sustain a permanent impairment rating in accordance with the Florida Impairment Rating Guide as the result of his lumbosacral strain stemming from his 11/3/93 accident. I accept the testimony of Dr. Greer over the testimony of Dr. Stashak concerning the issue of MMI because I find Dr. Greer's conclusions to be consistent with my own observations of the Claimant. Furthermore I place greater weight on Dr. Greer's opinion because he has been the Claimant's primary treating physician since 12/29/92 which has given him the opportunity to examine and observe the Claimant over a prolonged period of time whereas Dr. Stashak only had the opportunity to evaluate the Claimant on one occasion. Therefore I find that based upon the testimony of Dr. Greer and pursuant to Florida Statute Section 440.15 (3)(b) the Claimant is not entitled to any wage loss benefits from 11/16/93 forward because the Claimant sustained a 0% impairment rating.

27. In the alternative I find that the Claimant is not entitled to any wage loss benefits from 11/16/93 forward based upon the medical testimony of Dr. Greer and Dr. Stashak and pursuant to Florida Statute Section 440.15 (3)(b) because I find that the Claimant did not sustain any limitations and restrictions which would prevent him from performing his customary employment as a warehouse loader. I base this finding on the fact that both Dr. Greer and Dr. Stashak testified that the Claimant was capable of returning to his former position as a warehouse loader on a full time basis.

28. In the alternative I find that the Claimant is not entitled to any wage loss benefits from 11/16/93 through 3/24/94 because any wage loss that he sustained during this period is not related to his 11/3/93 accident. The uncontradicted evidence demonstrates that the employer had the right to terminate the Claimant if he tested positive for a controlled drug at any time. Due to the Claimant's positive drug test for a controlled drug he forfeited his continued employment even though the controlled drug was not a causative factor in the occurrence of his industrial accident. The Claimant indicated that he attempted to return to full duty work on 11/16/93 but was terminated. Gerry Hoeffner confirmed the fact that the Claimant's regular position as a warehouse loader was available when he was released to full duty work by Dr. Greer on 11/16/93. As indicated above based on testimony of Dr. Greer and Dr. Stashak I

find that the Claimant was physically capable of returning to his regular position on a full duty basis. Thus the overwhelming evidence establishes that the Claimant would have continued to earn his pre-injury wages with the employer if he had not been terminated for violating the employer's drug-free workplace. As pointed out in the case of Publix Supermarket Inc. v. Hart 609 So.2d 1342 (Fla. App. 1 Dist. 1992):

In asserting a Claim for Benefits the initial burden is on the Claimant to demonstrate an entitlement to benefits upon a change in employment status due to a compensable injury . . . Depending upon the circumstances this burden may be satisfied by proof which encompasses medical evidence or evidence of a good faith work search.

In Publix Court found that the Claimant who was terminated for insubordination failed to satisfy his burden of showing that his change in employment status was due to his compensable injury. Thus Court found that but for the Claimant's insubordination the Claimant would have remained employed with Publix. Supra at p. 1345. In the instant case based upon the medical testimony provided by Dr. Stashak and Dr. Greer I find that the Claimant's current unemployment status is not due to his industrial injury. Furthermore the Claimant's work search fails to demonstrate that his current unemployment status is due to his industrial injury since his work search was sporadic and was not filed on a timely basis which made it invalid. Furthermore the evidence also demonstrates that following the D/A the Claimant made no effort to maintain employment. This is evidenced by the fact that the Claimant worked for Denny's Restaurant for approximately three days and quit because he did not like working as a cook. Thus the Claimant has failed to meet his burden to establish a causal relationship between his current unemployment status and his compensable injury. This is analogous to a deemed earnings finding in that the Claimant would have been able to continue earning his pre-injury wages but for the violation of the employer's drug-free workplace. Therefore I find that the Claimant is not entitled to any compensation benefits from 11/16/93 through 3/24/94 because his wage loss is due solely to his termination due to violating the employer's drug-free workplace.

29. In the alternative I find that the Claimant is not entitled to any wage loss benefits from 12/19/93 through 2/26/94 because the Claimant failed to submit his WL forms in a timely fashion and therefore he waived his right to those benefits pursuant to Florida Statute Section 440.15 (3)(b) and the case of Litvin v. Port St. Lucie Sheriff's Office 599 So.2d 1353 (1st DCA 1992). I base this finding on the fact that the Claimant admitted that he received a statutory wage loss letter from the carrier on 11/24/93 which was evidenced by the certified mail receipt which was signed by the Claimant and submitted into evidence. However he failed to submit the wage loss forms covering the period from 12/19/93 through 2/26/94 until 3/11/94 which were not received by the carrier until 3/14/94.

30. In the alternative I find that based upon Dr. Corry's testimony the Claimant is not entitled to any wage loss benefits from 11/23/93 through 3/13/94 since his inability to work during that time period was due solely to his subsequent MVA of 11/23/93. Furthermore I find that the Claimant is not entitled to any wage loss benefits from 3/14/94 through 3/24/94 based upon Dr. Corry's testimony because the Claimant's cervical injury restricted his ability to work to such a severe degree that he would not have been able to return to any type of full time employment during this period. I base this finding on the fact that the Claimant would have been restricted to working no more than five to ten hours per day during this period.

31. In the alternative I find that the Claimant is not entitled to any compensation benefits for the first six weeks following his termination on 11/16/93 pursuant to Florida Statute Section 440.13 (4)(b) since the Claimant was terminated due to misconduct. I base this finding on the fact that the Claimant violated the employer's drug-free workplace by taking a controlled drug that wasn't prescribed to him. Therefore the Claimant was clearly terminated due to his own misconduct as defined in Florida Statute Section 440.02(16)(a) which entitles the E/C to deny the Claimant compensation benefits for six weeks following his termination.

32. I also find that the Claimant is entitled to TPD benefits on 11/4/93 11/5/93 and 11/15/93. I base this finding on the fact that the Claimant had been returned to a light duty status as of 11/4/93 by Dr. Greer and was earning less than his pre-injury wages. I further find that the Claimant is entitled to the payment of interest on the TPD benefits awarded on 11/4/93 and 11/5/93 and it is premature to determine if any interest is owed on the 11/15/93 TPD payment. Furthermore the Claimant is not entitled to penalties on any of the TPD benefits since the E/C filed a timely notice to controvert. Although I find that the Claimant is entitled to TPD benefits on 11/15/93 since he failed to submit a TPD form covering that date the carrier will not be required to make that payment until after a form is submitted. I base this finding on the fact that even though the Claimant did not receive a statutory wage loss letter until 11/24/93 he is still under an obligation to submit a TPD request in order to receive TPD benefits.

33. I also find that the claimant is entitled to future orthopedic care based upon the testimony of Dr. Stashak. Dr. Stashak indicated that the Claimant would benefit from anti-inflammatory medication and three weeks of formal physical therapy. Therefore the Carrier shall proceed with authorizing Dr. Stashak or an alternative orthopedic physician if the claimant has any objection to receiving future medical care from Dr. Stashak.

34. In light of my denial of the Claimant's right to compensation benefits from 11/16/93 forward for the above-mentioned reasons I find that it is not necessary to address the issues pertaining to whether the E/C is entitled to assert an unemployment offset and whether the E/C is entitled to apply the Claimant's subsequent earnings from Denny's Restaurant to the wage loss formula during that period.

35. I also find that the Claimant's Counsel is entitled to a reasonable Counsel's fee for the TPD benefits and the medical benefits secured for the Claimant. I base this finding on the fact that this is a totally controverted claim in which the Claimant's Counsel has been successful in securing the Claimant's right to medical care and TPD benefits for 11/4/93 11/5/93 and 11/15/93.

WHEREFORE it is the Order of the undersigned Court of Compensation Claims that:

1. The Claimant is entitled to TPD on 11/4/93 and 11/5/93 along with interest and TPD on 11/15/93 provided that a form is submitted. The claim for penalties is denied.

2. The claim for TPD/WL from 11/16/93 through 3/24/94 is denied.

3. The claim for the authorization for the care and treatment by an orthopedic physician is granted and therefore the E/C shall authorize Dr. Stashak or an alternative orthopedic physician.

4. The Claimant's Counsel is entitled to an Counsel's fee.

5. Jurisdiction is reserved to determine the amount of Counsel's fees and taxable costs.