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State ex. rel. Stallion Oilfield Construction LLC v. Industrial Commission of Ohio

Court of Appeals of Ohio, Tenth District

August 8, 2019

The State ex rel. Stallion Oilfield Construction, LLC, Relator,
v.
Industrial Commission of Ohio et al., Respondents.

          IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION

         On brief:

          Vorys, Sater, Seymour and Pease LLP, and Corrine S. Carman, for relator.

          Dave Yost, Attorney General, and Eric J. Tarbox, for respondent Industrial Commission of Ohio.

          Heller, Maas, Moro & Magill Co., LPA, Richard L. Magill, and Robert J. Foley, for respondent Roger W. Hutchison.

          DECISION

          BEATTY BLUNT, J.

         {¶ 1} Relator, Stallion Oilfield Construction, LLC, ("Stallion") brings this original action seeking a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its March 2, 2018 corrected order granting respondent Roger W. Hutchinson's request for temporary total disability ("TTD"). Pursuant to the following analysis, we overrule Stallion's objections and adopt the magistrate's March 26, 2019 decision in its entirety and deny the requested writ of mandamus.

         I. BACKGROUND

         {¶ 2} Stallion employed Hutchinson. At the time of his hire, he acknowledged receipt of Stallion's Employee Handbook Drug and Alcohol Policy ("handbook") via a signed document dated January 16, 2014. The handbook included the following relevant sections:

7.0Testing
7.1 The Company reserves the right to test any employee * * * for drugs and alcohol * * *. Acceptance of testing is a mandatory condition of employment. * * *.
7.2 Refusal to cooperate in testing is a violation of this policy and will result in termination of employment. * * *.
7.3 Employees are tested in the following situations, unless prohibited by state law:
** *
Post-accident - Employees are subject to drug and alcohol testing when the Company reasonably believes they may have caused or contributed to an accident resulting in damage to Company equipment, or injury to a person, or when an incident in which they were involved, though not resulting in such damage or injury, created a high potential for such damage or injury, as defined in the HSE Incident Reporting and Investigation Procedures' definition of major incident.
** *
• Random - All employees are subject to random drug testing. * * *.
• The tests are unannounced, spread throughout the year, and the selection of employees is made by a scientifically valid method.
** *
• Periodic - Employees may be subject to periodic drug testing when the testing is scheduled and announced in advance.
11.0Consequences
11.1 Any employee * * * who engages in conduct in violation of this policy will be subject to disciplinary action up to, and including termination.
** *
Employees - if the results of a drug test are positive, the employee is terminated[.] * * *.

(Emphasis sic.) (App'x C of the Handbook at 8-11.) The handbook's definition section describes a positive test for drugs as follows:

Test positive for drugs - to take a drug test that results in a concentration of amphetamines, barbiturates, benzodiazepines, cannabinoids, cocaine, methadone, opiates, phencyclidine, or propoxyphene, which exceeds the cutoff levels established by the government or other reasonable standards. These are subject to change by the U.S. government or applicable state law. Listed below are the more common names and drugs of the same family:
** *
Opiates * * * Morphine, Codeine; Screen Level 2000(ng/ml); Confirm Level 2000 (ng/ml)

(Emphasis sic.) (App'x C of the Handbook at 13.)

         {¶ 3} On March 19, 2017, Hutchinson suffered an accidental back injury while in the course of his employment with Stallion. His physician released him to return to work with restrictions. Before returning to work, Hutchinson applied for and received workers' compensation benefits for back strain. Hutchinson subsequently returned to Stallion in a light-duty capacity. On April 18, 2017, Stallion submitted Hutchinson to a random drug test. Hutchinson was said to have tested "positive" for morphine, codeine, and opiates but no concentrations of each were provided in that result. Stallion terminated Hutchinson's employment on April 28, 2017 because of his drug screen.

         {¶ 4} Thereafter, Hutchinson filed a motion asking that his claim be additionally allowed for "intervertebral disc disorder with myelopathy" and subsequently filed an application for TTD compensation. (May 3, 2017 Mot.) Stallion opposed, arguing that utchinson had ...


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