Jeffrey P. Gale, P.A. // Key to Defeating Florida Workers’ Compensation Drug Defense is Preventing Presumption of Impairment

A popular defense utilized by Florida employers and their workers’ compensation insurance carriers (E/C) to keep from having to pay workers’ compensation benefits is the drug defense under section 440.09(3), Florida Statutes. In pertinent part, the section provides as follows: (3) Compensation is not payable if the injury was occasioned primarily by … the influence of any drugs, barbiturates, or other stimulants not prescribed by a physician…. It is routine for specimens to be drawn — typically urine — shortly after an accident, often before medical treatment is provided for the injury. Specimen collectors will even go to hospitals in cases where emergency medical care is required. A companion to 440.09(3) is 440.09(7)(b), which provides: … if the employee has a positive confirmation of a drug as defined in this act, it is presumed that the injury was occasioned primarily by the … influence of the drug upon, the…

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