          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-505
                  _____________________________

BONITA BRINSON,

    Appellant/Cross-Appellee,

    v.

HOSPITAL HOUSEKEEPING
SERVICES, LLC, and
BROADSPIRE,

    Appellees/Cross-Appellants.
                _____________________________

On appeal from an order of the Judge of Compensation Claims.
John J. Lazzara, Judge.

Date of Accident: June 29, 2015.

                            June 22, 2018

OSTERHAUS, J.,

     Bonita Brinson failed two illegal-drug tests after falling and
injuring her shoulder on the job at the hospital. She later sought
workers’ compensation benefits, but was denied by her employer-
carrier because of the failed tests. See § 440.09(3), Fla. Stat. (2017).
Ms. Brinson challenged the denial of benefits. But because she
failed to rebut the statutory presumption attributing her injury
primarily to the influence of drugs, see § 440.09(7)(b), we affirm the
Judge of Compensation Claims’ decision to deny benefits.

                                   I.
      Ms. Brinson was working as a housekeeper at a hospital when
towards the end of her shift, she fell and dislocated her left
shoulder. After the accident, a housekeeping supervisor
transported Ms. Brinson to a local medical clinic where she
provided a urine sample pursuant to her employer’s post-accident,
drug-testing policy. She failed the tests by testing positive for the
presence of marijuana metabolites on two tests, an immunoassay
test and a confirmatory gas chromatography mass spectrometry
test.

     When the employer hired Ms. Brinson, she signed a
stipulation acknowledging the employer’s drug testing policy,
which said:

    I have been fully advised that if I am injured on the job,
    regardless of how minor the injury may seem, I am to
    report that injury to my supervisor. All employees that
    are injured are subject to a drug test.

(Emphasis in original.) She also signed a “Drug Free Awareness”
policy at work acknowledging that she “may be asked to provide (if
there is reasonable suspicion . . .) body substance samples . . . to
determine whether illicit or illegal drugs . . . have been or are being
used.”

    Because of the positive tests, the employer-carrier denied Ms.
Brinson’s subsequent claim for workers’ compensation benefits.

                                  II.

     When an injured employee tests positive for drugs after an
accident, like Ms. Brinson did, Florida’s workers’ compensation
law “presume[s] that the injury was occasioned primarily . . . by
the influence of the drug upon the employee.” § 440.09(7)(b), Fla.
Stat. And it does not compensate for the injury. § 440.09(3), Fla.
Stat. The law allows the injured employee, however, to rebut the
statutory presumption denying compensation by presenting clear
and convincing evidence that the “influence of the drug did not
contribute to the injury.” § 440.09(7)(b), Fla. Stat.




                                  2
     Ms. Brinson attempted to rebut the statute’s presumption
with the testimony of two expert witnesses, but failed to do so. Her
strategy didn’t include trying to establish an external cause for her
injury. She didn’t argue, for example, that she’d been tripped by a
careless doctor, or pushed by an unruly patient. See, e.g., Hall v.
Recchi Am. Inc., 671 So. 2d 197, 201 (Fla. 1st DCA 1996) (finding
no relationship between a positive drug test and the workplace
accident “because the uncontradicted testimony established that
the industrial accident . . . resulted from a co-worker tripping and
jabbing him in the back of the head with a screed”). She also didn’t
argue that the marijuana in her system was merely inactive
residue of some fairly recent usage. Id. at 199-200 (noting that the
JCC found no impairment where a positive drug test resulted from
the use of marijuana five days before the workplace accident).
Arguments along these lines, if true in her case, might have
rebutted the statutory presumption.

      Instead, Ms. Brinson’s argument for rebutting the statutory
presumption focused on attacking the limits of drug testing itself
and the Workers’ Compensation Act’s reliance upon drug testing
results. Her two doctor witnesses claimed that the drug tests only
detect the presence of drug metabolites, but do not conclusively
indicate that drugs are active in the bloodstream or have caused
impairment. According to these experts, Ms. Brinson may not have
been impaired despite her positive test results. The first doctor,
Dr. Goff, testified to having no opinion on whether the drugs in Ms.
Brinson’s body contributed to her injury. He didn’t know whether
the positive tests correlated with real-life behavioral effects: “I
have no knowledge of the correlation between [the drug test’s] cut-
off levels and clinical state of effects of the drug on an individual’s
behavior.” According to his testimony, a positive drug test “doesn’t
tell us if the drug is active [versus inactive] in the bloodstream.”
The testimony of the second witness, pharmacologist Dr.
Lazaridis, was much the same. She testified that the drug tests
given to Ms. Brinson measured inactive metabolites, but didn’t
speak “to whether or not the patient is under the influence.” On
cross-examination, Dr. Lazaridis said that she could not say that
“the levels [Ms.] Brinson had in her drug test were insufficient to
cause any [behavioral] effects of marijuana on the date of her
accident.” She continued: “[T]here are other tests that are more
focused on acute intoxication of an individual, [so] I couldn’t say

                                  3
that it did [affect her behavior] or I couldn’t say that it didn’t.” In
response to another question, Dr. Lazaridis agreed that she could
not “say today that [Ms. Brinson] definitely did not smoke on the
date of her accident.”

    Thus Ms. Brinson’s witnesses left open the question of
whether she was under the influence when the accident occurred.
They didn’t know whether the drugs in her system contributed to
her injury, and so failed to testify effectively for purposes of
rebutting § 440.09(7)(b)’s presumption. Because their testimony
didn’t present clear and convincing evidence that the “influence of
the drug did not contribute to the injury,” as required by
§ 440.09(7)(b), Ms. Brinson failed to rebut the presumption.

     We acknowledge the dissent’s dissatisfaction with the
probative limits of drug testing, as well as its up-to-date, drug-
testing research. 1 The bottom line here is that Ms. Brinson’s
witnesses could not say that her drug use did not contribute to her
injury. We disagree that an exclusionary rule should be applied
with respect to Ms. Brinson’s two failed drug tests. She consented
to the tests. And the Workers’ Compensation Act doesn’t forbid
employers like this one from drug-testing after a workplace
accident. Specifically, Florida law allows employers to drug test
employees after an accident whether they operate a proper “drug-
free workplace program” or not. See, e.g., Gustafson’s Dairy,
Inc./Prof’l Adm’rs. Inc. v. Phillips, 656 So. 2d 1386, 1387-88 (Fla.
1st DCA 1995) (applying the presumption in favor of an employer
who drug-tested an employee after a workplace accident, even


    1  We decline to evaluate the dissent’s original appellate
research for purposes of resolving this case. See Jacksonville Elec.
Auth. v. Dep’t of Revenue, 486 So. 2d 1350, 1354 n.10 (Fla. 1st DCA
1986) (“The inherent problem in reliance on original appellate
research in what is essentially an evidentiary quest is that the
appellate court does not have the benefit of the adversarial search
for and scrutiny of the available information. It therefore appears
inappropriate for an appellate court to rely on its own factfinding,
without adversarial crosschecks . . . .”).



                                  4
though that employer did not satisfy drug-free workplace program
requirements). For employers qualifying as drug-free workplaces,
the statute expressly allows “reasonable-suspicion drug testing” on
the basis that “an employee has caused, contributed to, or been
involved in an accident while at work.” See § 440.102(1)(n)5.,
(4)(a)2., Fla. Stat. The freedom to drug-test under these
circumstances is no different for non-drug-free workplace
employers: “This section . . . does not abrogate the right of an
employer under state law to conduct drug tests, or implement
employee drug-testing programs.” § 440.102(7)(e), Fla. Stat. See
also Laguerre v. Palm Beach Newspapers, Inc., 20 So. 3d 392, 394
(4th DCA 2009) (“An employer who elects not to operate a drug-
free workplace program . . . is not prohibited from conducting drug
testing, as the statute expressly provides.”).

     Consistent with its statutory prerogative, Ms. Brinson’s
employment agreement and the employer’s drug testing policy
established the employer’s program allowing it to drug-test Ms.
Brinson after the accident. As described earlier, Ms. Brinson’s
employer had an express and bold-written policy of drug testing
“all” injured employees after an accident, which Ms. Brinson
accepted. Cf., § 440.102(1)(n)5., (4)(a)2. Fla. Stat. (allowing
reasonable-suspicion drug testing on the basis of being “involved
in an accident while at work”). Ms. Brinson’s testimony
demonstrated that she fully understood this policy. She
acknowledged that her employer “had a drug free policy” with
employees; that she’d been drug-tested in the past when she
applied for the job; that she could be drug-tested again in the
future; and that she “had no objection” in this case to providing a
urine sample after her accident and injury. For these reasons, we
don’t agree with the dissent’s view that the drug testing here was
unauthorized or illegal, or that the results of Ms. Brinson’s failed
drug tests should be excluded. 2

    2  Regarding exclusion, we see no statutory or case-related
basis for applying an exclusionary rule on the basis of requiring
visible or other signs of impairment in addition to an accident. Test
results have long been used in workers’ compensation cases (and
§ 440.09(7)(b)’s presumption has been applied) in the absence of
additional impairment evidence. See, e.g., European Marble Co. v.
Robinson, 885 So. 2d 502, 504-505 (Fla. 1st DCA 2004) (recognizing
                                 5
                               III.

    Accordingly, we AFFIRM the order denying benefits for the
workplace injury.

LEWIS, J., concurs; MAKAR, J., dissents with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


MAKAR, J., dissenting.

     Near shift’s end, Bonita Brinson was cleaning hospital rooms
when she slipped and fell, dislocating her shoulder, as she rushed
to alert the nurse’s station that a patient had coded and was not
breathing. Her workplace injury was compensable, but her
employer denied coverage after a single two-step urine test—
administered by the emergency medical center before it would
undertake evaluating her injury—returned positive for inactive
marijuana metabolites. She challenges the denial of coverage,
arguing that the drug test was unauthorized and, alternatively,
that she rebutted the statutory presumption—required for positive
drug tests—that that her injury “was occasioned primarily . . . by
the influence of the drug upon” her. § 440.09(7)(b), Fla. Stat.
(2018).

    First, no authority exists for administering the drug test in
Brinson’s case. By statute, her employer may require a drug test


that employers could use properly administered drug-test results
from hospital tests conducted for medical purposes after an auto
accident); Temp. Labor Source v. E.H., 765 So. 2d 757, 759 (Fla.
1st DCA 2000) (acknowledging that an emergency room drug test
in the absence of other employer-originated suspicion could
underlie an employer’s § 440.09(7)(b)-based defense).

                                6
of an injured employee only “if the employer has reason to suspect
that the injury was occasioned primarily . . . by the use of any drug,
as defined in this chapter, which affected the employee to the
extent that the employee’s normal faculties were impaired” as to
the accident in question. § 440.09(7)(a), Fla. Stat. (2018) (emphasis
added). No evidence exists that the “reason to suspect”
requirement was met as to Brinson, who exhibited no signs of
impairment at any point prior to or after the workplace accident.
Her supervisor testified that Brinson showed no signs of
impairment and no evidence suggests that anyone else in the
workplace had a suspicion that she might be drug-impaired or that
her normal faculties were affected by drug use (only her politesse
was questioned). 1

     The employer asserts that all its employees injured in the
workplace must be drug tested before they may receive any
medical care, which is inconsistent with its written policy that
states:

    Using or being under the influence of drugs or alcohol on
    the job may pose serious safety and health risks. To help
    ensure a safer and healthful working environment, job
    applicants and team members may be asked to provide (if
    there is reasonable suspicion or justifiable cause) body
    substance samples (such as urine and/or blood) to
    determine whether illicit or illegal drugs and/or alcohol
    have been or are being used.

The emphasized portions, which are consistent with the statutory
“reason to suspect” standard, reflect that there must be reasonable
suspicion of on-the-job drug-impairment before drug testing is




    1  Brinson was a difficult patient. Unclear is whether it was
due to her untreated shoulder pain, a gruff personality, or the fact
that Brinson’s supervisor intervened by personally taking her from
the hospital emergency room (where she was awaiting treatment)
to a company-authorized medical clinic solely for the drug-testing,
which resulted in the immediate denial of any medical treatment.

                                  7
justified. 2 A workplace injury—without more—is a legally
insufficient basis to impose drug testing on an employee under
section 440.09(7) or the employer’s written policy, both of which
require reasonable suspicion, which did not exist as to Brinson.
The testing of Brinson was thereby unauthorized under section
440.09(7)(a), negating the employer’s reliance on the statutory
presumption of intoxication in section 440.09(7)(b) (discussed
further below).

     Had Brinson’s employer adopted a statutorily-defined drug-
free workplace program, it would have more latitude to drug test
injured employees, perhaps even Brinson. See § 440.102, Fla. Stat.
(entitled “Drug-free workplace program requirements”). For
instance, such employers may impose statutorily-defined
“reasonable-suspicion drug testing,” which—for purposes of the
drug-free workplace program only—“means drug testing based on
a belief that an employee is using or has used drugs in violation of
the employer’s policy drawn from specific objective and articulable
facts and reasonable inferences drawn from those facts in light of
experience.” § 440.102(1)(n), Fla. Stat. “Among other things, such
facts and inferences may be based upon” six non-exclusive
statutory factors, one being information that an employee “has
caused, contributed to, or been involved in an accident while at
work.” Id. (emphasis added). The highlighted factor gives program-
compliant employers leeway to require drug-testing of employees
simply because they were “involved” in workplace accidents.




    2 Brinson’s urine was not given for medical purposes related
to her dislocated shoulder, making her situation unlike cases
where hospital staff does blood testing for urgent medical reasons
associated with immediate treatment of major or catastrophic
injuries, which can result in loss of the statutory presumption
unless administrative rules on drug-testing policies, procedures,
and methods are followed. See European Marble Co. v. Robinson,
885 So. 2d 502, 503 (Fla. 1st DCA 2004) (employee “sustained life-
threatening injuries to the left side of his head”); Temp. Labor
Source v. E.H., 765 So. 2d 757 (Fla. 1st DCA 2000) (catastrophic
injury from leg amputation).

                                 8
     But the employer here jettisoned its attempt to establish a
drug-free workplace program, which explains why some of its
employment documents (such as Brinson’s application and the
employer’s “Drug Free Awareness” policy) required drug testing
for all workplace accidents, which would be allowable only under
section 440.102, Florida Statutes. For this reason, the employer
had no authority to rely on those documents to test Brinson (absent
a “reason to suspect” drug use); nor did it have authority to apply
the more flexible standard for “reasonable suspicion drug-testing”
in section 440.102(1)(n). 3 Employers cannot take advantage of
section 440.102’s benefits—including more flexible drug-testing—
without first establishing a fully compliant drug-free workplace
program; even ones in substantial compliance are ineligible. See
Gustafson’s Dairy, Inc./Prof’l Adm’rs, Inc. v. Phillips, 656 So. 2d
1386, 1388 (Fla. 1st DCA 1995). Doing so gives them an advantage
to which they aren’t entitled. For like reason, the statutory
statement that “[t]his section [establishing requirements for drug-
free workplace programs] . . . does not abrogate the right of an
employer under state law to conduct drug tests, or implement
employee drug-testing programs,” does not apply to employers
without compliant programs, and thereby has no application in
this case. § 440.102(7)(e), Fla. Stat. (2018). Only employers with
compliant drug free workplace programs get its benefit.

    On this point, no statute or case 4 says that employers subject
to Chapter 440, but without drug-free workplace programs, have

    3 Nor could it rely on the more stringent evidentiary standard
that employees must meet under section 440.09(7)(b)) (“If the
employer has implemented a drug-free workplace, this
presumption may be rebutted only by evidence that there is no
reasonable hypothesis that the intoxication or drug influence
contributed to the injury.”) (emphasis added).
    4For instance, the employee in Gustafson’s Dairy injured her
arm when it got “caught in a machine,” resulting in a drug test,
which may have been done for medical purposes or, alternatively,
was done because there was “reason to suspect” that she was
impaired; it might have been done consensually or due to an
unchallenged employer policy. The case simply doesn’t say.
Likewise, the Fourth District’s holding in Laguerre v. Palm Beach
                                9
unlimited power to require any type of employee drug-test at any
time. The existing legislative framework—which takes away
employees’ common law rights and replaces them with statutory
ones—created a system that balanced employees’ rights as to drug
testing vis-a-vis rights of employers who need to ensure safe
workplaces. This case upsets that balance, giving employers carte
blanche to do as they want. An employer without a program, of
course, may conduct drug testing under state law, as section
440.09(7)(a) makes clear, but it must comply with standards, such
as the “reason to suspect” requirement for drug-testing after a
workplace injury. Intermixing the drug-free workplace statute,
section 440.102, with the general drug-testing statute, section
440.09(7), creates confusion and thwarts the important legislative
protections for drug testing of employees. Plus, why adopt a drug-
free workplace program when its more lenient drug-testing
standards have now been extended judicially to non-compliant
employers?

     Second, Brinson—like similarly situated injured employees
with inactive metabolites in their system—couldn’t have done
anything more than she did to rebut the statutory presumption
“that the injury was occasioned primarily by the intoxication of, or
by the influence of the drug upon, the employee.” § 440.09(7)(b),
Fla. Stat. Beyond no evidence of impairment or recent drug use
and no suspicion of either, Brinson presented unrebutted and
supportive expert medical testimony that was fully consistent with
the medical literature on marijuana detection and impairment. 5
The JCC found the testimony to be “somewhat speculative,” but he
failed to explain how, which was error given the scientific
testimony was unrefuted and uncontroversial.


Newspapers, Inc., 20 So. 3d 392 (Fla. 4th DCA 2009), was that an
employee could not pursue a wrongful discharge claim set forth in
the drug-free workplace program statute because the employer
had not met the program requirements.
    5See, e.g., U.S. DEP’T OF TRANSP., NAT’L HIGHWAY TRAFFIC
SAFETY ADMIN., MARIJUANA-IMPAIRED DRIVING: A REPORT TO
CONGRESS 13 (July 2017) [hereinafter MARIJUANA-IMPAIRED
DRIVING].

                                10
     At a minimum, the expert testimony and scientific evidence at
trial debunked the widespread misconception that testing positive
for marijuana use necessarily correlates with intoxication or
influence at the time of the accident. To the contrary, as her expert
explained, the drug test that Brinson was required to take detects
only inactive metabolites, the presence of which proves only that
the employee—at some indeterminate and potentially distant
point in the past—had marijuana in her system; it does not itself
prove, or even infer, impairment at the time of the test or the
accident. Unlike blood-alcohol tests, which quantify the amount of
alcohol present and translate it with scientific precision into
predicted levels of impairment and risk, no such test exists for
marijuana impairment. 6 In contrast, a test for active metabolites—
which would have to be done contemporaneously with the alleged
injury—has some potential of correlating with impairment because
active metabolite levels decline by 80-90% within an hour of
ingestion; the period of marijuana impairment is almost equally
short-lived (typically a few hours thereafter), as Brinson’s evidence
established. 7

    6  Id. at 13. The report notes that studies show that most
drivers who smoke marijuana “typically drive slower, follow cars
at greater distances, and take fewer risks than when sober. . . . In
contrast, subjects dosed with alcohol typically drive faster, follow
at closer distances, and take greater risks.” Id. at 12.
    7 See also id. at 5. See generally What are marijuana effects?,
NAT’L            INST.          ON           DRUG            ABUSE,
https://www.drugabuse.gov/publications/research-
reports/marijuana/what-are-marijuana-effects (last updated Feb.
2018)      (“Although      detectable      amounts        of    THC
[tetrahydrocannabinol] may remain in the body for days or even
weeks after use, the noticeable effects of smoked marijuana
generally last from 1 to 3 hours, and those of marijuana consumed
in food or drink may last for many hours.”); AM. PSYCHIATRIC
ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL
DISORDERS 516-17 (5th ed. 2013) (DSM-V) (“Cannabis
Intoxication”) (“Intoxication develops within minutes if the
cannabis is smoked but may take a few hours to develop if the
cannabis is ingested orally. The effects usually last 3-4 hours, with
                                 11
     The oddity is that a positive test revealing inactive
metabolites—as here—creates a rebuttable presumption that a
workplace “injury was occasioned primarily by the intoxication of,
or by the influence of the drug” even though the test has no
correlation or predictive power as to whether intoxication,
influence, or impairment existed at the time of the injury. And no
chemical test for marijuana impairment exists, 8 making it
scientifically impossible for employees to directly overcome the
premise of the presumption, which is that they were intoxicated or
drug-influenced at the time of the accident. They are left with
presenting evidence—as did Brinson—that they weren’t impaired;
had full use of their mental and physical faculties; that the drug
test itself proves nothing as to impairment; and that any alleged
drug use did not contribute to their injury. 9 In this case, the


the duration being somewhat longer when the substance is
ingested orally.”). These authoritative materials are consistent
with the record evidence and involve matters not in dispute.
Unlike thirty years ago, when a panel of our Court felt that
researching legislative history on appeal was verboten,
Jacksonville Elec. Auth. v. Dep’t of Revenue, 486 So. 2d 1350, 1354
n.10 (Fla. 1st DCA 1986) (“It therefore appears inappropriate for
an appellate court to rely on its own factfinding, without
adversarial crosschecks, in determining the legislative intent.”)
(emphasis added), the modern online availability of authoritative
sources has enabled the judiciary to become better educated on all
manner of topics, which is permissible unless an appellate court
has its decision turn on a disputable adjudicative factual finding
that is not supported in the record (absent the finding being from
an incontestable source, e.g., judicial notice).
    8   MARIJUANA-IMPAIRED DRIVING, at 13.
    9  Expert testimony based on scientific evidence established
that it was “highly unlikely” that Brinson’s alleged drug use would
have contributed to her injury. If Brinson’s evidentiary burden is—
as the “bottom line” of this case establishes—that her witnesses
must say with certainty that “her [alleged] drug use did not
contribute to her injury,” the statutory presumption becomes
irrebuttable and thereby unconstitutional. Recchi Am. Inc. v. Hall,
                                12
evidence in support of Brinson was entirely one-sided, easily
overcoming the statutory presumption, entitling her to relief.

     All this said, marijuana intoxication is a serious matter of
public health and a workplace safety concern that employers face
daily. 10 The confluence of lawful marijuana use (medical in
Florida, medical/recreational elsewhere), 11 the lack of scientific
standards or chemical tests for marijuana impairment, and the
interplay of federal enforcement policy make the future application
of workplace drug tests challenging, to say the least. 12

                 _____________________________


Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for
Appellant/Cross-Appellee.


692 So. 2d 153 (Fla. 1997) (section 440.09(3)’s then-existing
conclusive presumption that injury in drug-free workplace was
caused by claimant’s intoxication due to positive drug test violates
due process), affirming, Hall v. Recchi Am. Inc., 671 So. 2d 197
(Fla. 1st DCA 1996).
    10 DSM-V, at 517 (“Functional Consequences of Cannabis
Intoxication”) (“Impairment from cannabis intoxication may have
serious consequences, including dysfunction at work or school,
social indiscretions, failure to fulfill role obligations, traffic
accidents, and having unprotected sex. In rare cases, cannabis
intoxication may precipitate a psychosis that may vary in
duration.”).
    11 See State Marijuana Laws in 2018 Map, GOVERNING,
http://www.governing.com/gov-data/state-marijuana-laws-map-
medical-recreational.html (last visited May 10, 2018).
    12 See generally Stacy A. Hickox, Drug Testing of Medical
Marijuana Users in the Workplace: An Inaccurate Test of
Impairment, 29 HOFSTRA LAB. & EMP. L.J. 273, 335 (2012)
(surveying the medical and legal issues related to medical
marijuana users in the workforce).

                                13
Gwen G. Jacobs of Bennett, Jacobs & Adams, P.A., Tampa, for
Appellees/Cross-Appellants.




                            14
