Intoxication of an injured worker is an absolute defense to recovery of workers’ compensation benefits. An employee is intoxicated if he has a blood alcohol level of .08 or more or does not have the normal use of his physical or mental faculties due to the voluntary ingestion of an intoxicant. A blood alcohol level of .08 is intoxication as a matter of law. An employee with a blood alcohol level of less than .08 may still be found intoxicated if he has lost the normal use of his faculties.
An intoxicated worker is deemed outside the course and scope of his employment irrespective whether the intoxication contributes to the injury-causing event. Even an employer’s involvement in the intoxication does not preclude an insurer from raising the defense.
An injured worker is presumed sober at the time of his injury; however, a positive drug or alcohol test shifts the burden of proving non-intoxication to the worker. A positive drug test does not conclusively establish intoxication. A worker may establish non-intoxication through his own testimony that he retained the normal use of his faculties.
Claimants frequently challenge the validity of the drug or alcohol test when there is a lapse of time between the injury causing event and the taking of the blood or urine sample. If there is too great a gap, the Division of Workers’ Compensation may find the intoxication occurred after the injury. In such situations, the insurer is left to present evidence from witnesses who may testify that the worker did not have his normal faculties prior to the injury. Few supervisors are willing to testify their worker did not have normal control of his faculties since that begs the question why the supervisor allowed him to continue working. For this reason, it is crucial for employers to send injured workers’ for testing as soon as possible after the report of injury. Significantly, a worker’s refusal to submit to a drug screen may not, in and of itself, be sufficient to shift the burden of proof to the employee to establish non-intoxication. However, a refusal to undergo a drug screen coupled with other circumstances may be sufficient. The other circumstances may be a positive test after a delay in testing or testimony from co-workers that the claimant did not have normal control of his faculties.