Intoxication: A 60-Second Seminar in Workers’ Compensation Claims Handling

Of all the affirmative defenses in workers’ compensation, by far the most difficult for an employer to successfully litigate is intoxication.  This defense is comprised of three elements, all of which must be proven by the employer. The purpose of today’s blog is to review the requirements to successfully raise an intoxication defense as it is often misunderstood by many employers.

As stated, the three elements that must be proven are:

1. The injured worker imbibed an intoxicant.  This means the employer must prove the worker drank, consumed, injected, smoked, inhaled or somehow introduced an intoxicant into their body.
2. The worker was actually intoxicated at the time of accident, keeping in mind that a positive drug test does not necessarily mean the worker was intoxicated. 
3. The intoxication caused or substantially caused the injury.

Again, proving all three elements is required.  This leads us to the biggest mistake employers make when raising intoxication as a defense.  Many employers believe that following an on-the-job injury if a drug test is positive, the claim can be denied.  Such misplaced thinking is a recipe for an automatic penalty under workers’ compensation law.  When a drug test is positive all that means is that the employer proved the first element of an intoxication defense, namely that an intoxicant was imbibed.  Elements 2 and 3 must still be proven before the intoxication defense can be asserted.

Fortunately, there are times when test results are so conclusive that a person is legally presumed intoxicated, which is sufficient to prove the second element.  However, that still leaves the employer to prove the third and final element, namely, that intoxication caused the injury.   Witness testimony or video evidence is often used to accomplish this goal.  Case law often references Brinkley v. Pirelli Armstrong Tire Company as a prime example of where an employer failed to prove the third element.   In Brinkley, following an accident the worker tested positive for cocaine, codeine and methamphetamine to a degree where the employee was medically presumed intoxicated.  Despite the mixture of these three potent drugs, the worker blamed the accident on fatigue and inattentiveness since he had just finished working a long 12-hour shift.  The employer produced no witnesses in rebuttal and made no effort to prove that intoxication caused the accident.  Instead, they relied on the drug test results.  The WCAB panel found the employee’s explanation reasonable to overcome the intoxication defense since the employer failed to rebut the employee’s explanation that fatigue and inattentiveness caused the accident.

If anyone has any questions or requires representation in a claim where an intoxication defense plans to be raised, please feel free to call upon the experts here at Friedman + Bartoumian.