On July 9, 2019 and in a decision favorable to the employer, the New Jersey Appellate Division vacated an order awarding money benefits to the petitioner and returned the case to the trial court. This remand for new trial, obtained after oral argument presented by Greg Lois, also vacated an order penalizing the employer for late payment of lost time benefits.
The workers’ compensation case arose from a January 25, 2017 motor vehicle accident where the petitioner, Karim Haggag, was leaving a work site and intentionally drove the employer’s vehicle directly and without applying the brakes into a mound of gravel, sending the employer’s truck airborne and ultimately sustaining orthopedic injuries to his elbows, knees, left wrist and neck. The petitioner was transported to the local emergency department where he was treated. He refused to take a post-accident drug test. He was terminated effective January 26, 2017 for his failure to take the required test.
Medical treatment was authorized and provided. Lost time benefits were denied as the employee refused to take a drug test which we argued was a part of the employment.
A trial was held on May 23, 2017. The petitioner testified that he had no recollection of the accident and no recollection of his treatment for the following few days. The petitioner therefore testified he had no recollection of refusing to submit to a drug test.
The trial judge ruled that the refusal to take a drug test did not foreclose the petitioner from claiming that “but for” the accident he was “ready, willing, and able to work” and therefore the Law Judge awarded benefits.
Rather than rule on whether a refusal to take a drug test amounts to a “waiver of the claim that he was ready, willing and able to work but for the injuries” the Appellate Division found that the record below was insufficient to support the Judge of Compensation’s findings. The Judge of Compensation was therefore reversed and the matter is to be set down for new proceedings in which the Law Judge must determine the following:
- The occurrence of a compensable accident;
- Haggag’s resulting injuries and status in the hospital following the accident;
- That the employer requested a drug test (must be proven that the employer requested it);
- The circumstances surrounding the termination of Haggag’s employment. Specifically, that the termination was for failure to follow a required work-rule (submission to a drug test).
The matter will be returned to the trial court where the employer will now have an opportunity to show that the petitioner was (a) acting in an intentional manner to self-harm (therefore stripping the court of jurisdiction because the injuries did not arise out of and in the course of employment); (b) was lucid and conscious in the hospital when a lawful request was made by his employer to drug test him; (c) that he refused the drug test; and (d) was terminated immediately thereafter for refusing to submit to the test, which was a required part of the employment.
Case: Karim Haggag v. Eastern Concrete, decided July 9, 2019.