By David B. Torrey, WCJ
Penna. Dep’t of Labor & Industry
The intoxication defense cases are, in my experience, among the most interesting that we workers’ compensation judges hear. It is in these cases, after all, where the injured worker’s behavior and alleged culpability become pivotal. In most cases, we do not consider fault, but in the intoxication cases we will be looking into patterns of personal conduct, often illicit, which are usually not relevant. In addition, many of the injuries can be serious, and even catastrophic, with many cases involving calamitous motor vehicle accidents and obvious violent traumas on the shop floor. When such misfortunes occur and intoxicants are not involved, they rarely make it to court; when they are, the ghastly aftermath, and often grieving survivors, are front and center.
This summer, in preparing for a NAWCJ College panel, I researched the intoxication defense statutes and cases of all 50 states. I will publish my findings and a commentary in a law review article slated for winter of 2021.
I became interested in the issue some years ago. In my state, Pennsylvania, we added an intoxication defense for the first time as part of a 1993 reform. The statute establishes an affirmative defense (likely the prevailing construct) but it is oddly worded; I wanted to see how other states formulated the defense and applied the same.
However, I have become especially interested because of the increasing number of cases before me where marijuana use was involved. On a single day of hearings in the winter of 2017, three of the cases implicated marijuana use. Notably, according to a 2020 study by Quest Diagnostics, use of marijuana is indeed on the rise. Meanwhile, in my state, medical marijuana is now legal, at least under Pennsylvania law, and I sense (unfortunately, in my view), that recreational marijuana will soon be legal as well.
In any event, what are the highlights of my research?
The statutes that establish the intoxication defense, though possessed of many of the same characteristics, still vary considerably among states. A few jurisdictions, including Arizona, currently have no statutory defense. (There’s a long story there.) In a few others, no statute exists, but an employer may try to deny a claim on the grounds that the injury, sustained while the worker was intoxicated, reflected an abandonment of employment, or constituted willful misconduct.
The trend, however, ever since the enactment by Congress of the Drug-Free Workplace Act of 1988, is for states to add the intoxication defense to their laws (e.g., PA, 1993; IL, 2011), or to dramatically strengthen the defense through the creation of intoxication and intoxication-causation presumptions.
Most intoxication defense statutes direct that, when the defense is proven, claimant is subject to a complete forfeiture. However, in some jurisdictions the claimant is subject only to a percentage decrease in disability benefits, and in a few the claimant forfeits disability benefits but medical treatment is still paid. Meanwhile, many of the newer intoxication defense statutes reference not only intoxication but add specific reference to intoxicants like marijuana, cocaine, amphetamines, and methamphetamines.
I believe, as suggested above, that the prevailing rule is that the intoxication defense is an affirmative defense. Thus, the employer must prove that, at the time of the injury, the claimant was intoxicated and that the intoxication caused the injury. Years ago, it was common among states which maintained the defense that the employer was obliged to show that intoxication was the sole cause of the injury. Now, however, with the tightening of laws, only a few states seem to insist on that heavy employer burden. Most states, instead, oblige the employer to show only that intoxication was the, or a, proximate cause.
The most striking aspect of the story, in any event, is the rejection of the affirmative defense construct in many states and the rise, instead, of the employer-friendly presumption statutes. These laws, plainly influenced by the drug-free workplace movement, typically establish that, if a worker, in the wake of injury, tests positive for alcohol, or some other intoxicant, intoxication – and with some statutes, even causation – is presumed. It will be for the injured worker to try, in rebuttal, to prove lack of causation. Some of the presumption statutes are highly detailed, featuring “threshold levels” for the various common intoxicants (e.g., KS) and even prescribing regulations to refine the process (e.g., IL). A common feature of many such laws is the rule that a worker is obliged, in the wake of an accident, to undergo blood testing; and that, upon a refusal, intoxication is presumed.
A striking category of presumption statutes is that which provides that any level of an intoxicant in the worker’s blood generates a presumption of intoxication and causation – in other words, not simply a BAC in excess of some threshold, like .08, but the mere presence of an agent. This rule seems harsh, in particular, on the marijuana user; unlike alcohol, it seems that marijuana “metabolites” can endure in one’s system for days, or even longer, after last use. See, e.g., Brinson v. Hospital Housekeeping Services, LLC, 263 So.3d 106 (Fla. 1st DCA 2018) (housekeeper, at end of shift, rushing to report an emergency, who slipped and fell, dislocating shoulder, barred from recovery when it was found that she had THC in her blood).
A review of the state systems assisted me with one issue I have long pondered: whether circumstantial evidence alone can establish intoxication and/or causation. I think the answer is yes, but surely in most cases, in most states, the defense will want a forensic toxicologist to testify about both intoxication and how such impaired condition caused the injury. Claimant will likely want his or her rebuttal expert as well.
I, in fact, accepted an intoxication defense (denying a claim), based on circumstantial evidence, in a case where the uncontradicted proofs were that the claimant, a tree climber/cutter, had, before his fall from a tree – swinging around a chainsaw with wild abandon – stayed up the whole night before, getting high on Adderall (an amphetamine).
Memorable cases indeed exist where the fact-finder did not rely on testing results – yet found intoxication. These are, in essence, circumstantial evidence cases. In a Wisconsin case, the claimant on a work trip drank heavily and then, in the extreme cold, encountered difficulties in accessing his remote work trailer. He passed out, or fell asleep, during the effort and suffered serious frostbite injuries. No contemporary blood alcohol content was determined, but the judge inferred from the uncontested fact of his drinking that intoxication caused him to pass out/fall asleep/stay asleep/get frostbite. See Heritage Mut. Ins. Co. v. Larsen, 624 N.W.2d 129 (Wis. 2001).
In a new Tennessee trial-level case, WCJ Durham inferred intoxication by crediting claimant’s co-workers that claimant, though functioning and productive, was basically always drunk – he consumed beer every day, all day. Still, ironically, the employer in that case did not ultimately prevail – the employer did not, in this regard, prove that the inferred intoxication caused the injury (a fall from a ladder). In this regard, the accident was unwitnessed. De La Rosa v. Coronado, 2020 WL 291552 (Tenn. Ct. of Workers’ Comp. Claims, Jan. 16, 2020).
Circumstantial evidence, one can see, may just go so far.
The full Winter 2021 article features a table listing the states, their pertinent statutes (and regulations, where applicable), the nature of their presumptions, and illustrative cases.
This intoxication defense article is principally a reference piece. Still, with some luck, it will be of interest to researchers and to others who are in need of a briefing on how the states treat this issue – one which is so challenging to both law and society.