A Toast to Defending Intoxication Claims

By: Dustin Thompson

The commonly referred to “intoxication defense” is codified in the Georgia Workers’ Compensation Act at § 34-9-17, which details barring workers’ compensation benefits for an employee’s willful misconduct. Most employers, insurers and claims professionals know an injured worker is barred from receipt of workers’ compensation benefits if there is a positive post-accident alcohol or drug screen. Although at first glance a positive screen appears to be a sure-fire defense, be careful before overindulging. Establishing a successful intoxication/willful misconduct defense is a more winding road than what meets the eye.

O.C.G.A. § 34-9-17(b) requires an alcohol screen to be conducted within three hours of an alleged accident, as well as a drug screen to be performed within eight hours of an alleged accident. This willful misconduct defense can also be raised if an employee unjustifiably refuses to submit to a post-accident alcohol or drug screen. If there is a 0.08 gram or greater positive alcohol test within three hours, a positive drug screen within eight hours or if the employee refuses either screen, the employer and insurer will enjoy the rebuttable presumption that the employee’s intoxication caused the accident, injury or death..

Accordingly, the employer/insurer first bears the burden of proving one of the three foregoing scenarios has occurred to obtain the benefit of the presumption. The burden of proof only then shifts to the employee to show, despite the positive tests or refusal, he either was not intoxicated or his accident was not proximately caused by his intoxication. If the employer/insurer can establish proof entitling them to the presumption, it is often difficult for an injured worker to overcome such a strong defensive position.

However, even if the employer/insurer establishes the presumption through one of the three foregoing scenarios, there may be a flaw in the defense concerning causation. The employer/insurer should remain mindful there must be a proximate cause link between an injured worker's intoxication and the accident. For example, if an intoxicated employee is a passenger in a vehicle and is injured in an accident due to the negligence of a third-party driver, the accident causing the injuries was not proximately caused by the intoxication or willful misconduct of the employee. Consequently, following receipt of a positive post-accident screen or refusal, it is imperative to ensure there is a proximate cause link between the causation and the accident before controverting a claim based on a willful misconduct defense.

If the positive screen falls outside of the three- or eight-hour window, the employer/insurer will not enjoy the presumption but is still able to pursue a willful misconduct defense through the presentation of evidence, such as from a toxicology expert, who will review the quantitative data and determine intoxication at the time of any alleged accident. If there is not an alcohol or drug screen performed, the defense can still be asserted through other forms of evidence, such as witness testimony, but it will be much more difficult to prove intoxication at a hearing.

A practical roadmap for establishing an intoxication/willful misconduct defense is to require injured workers to immediately provide a written statement documenting the time of the alleged accident and then submit to an alcohol and drug screen taken by a medical professional. Upon receipt of a positive screen, the employer/insurer should confirm there is a causation link to the intoxication and then send a request for a litigation packet to the laboratory that analyzed the screen. The litigation packet establishes a chain of custody at any future hearing. If practical, retaining a toxicology expert to confirm intoxication upon review of a positive screen is an effective avenue for bolstering the strength of your defense.

These directions and, in particular, obtaining the written statement and timely post-accident screen, will ensure there are no hiccups in your intoxication/willful misconduct defense and give you significant leverage to resolve the case.


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Dustin Thompson

If the employer/insurer can establish proof entitling them to the presumption, it is often difficult for an injured worker to overcome such a strong defensive position.
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