Overcoming an Intoxication Defense

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After an injury, many employers require their employees to have a drug screen performed the day of the injury. The testing is not to help the injured worker recover from his injuries. It is performed to allow the employer and insurance carrier to dispute the compensability of the injured worker’s claim. If an injured workers’ refuses to be tested, this does not mean that he is automatically considered intoxicated. Might as well be fired for refusing the testing, than for a positive test. If an injured worker is found to be intoxicated (does not have the full use of his physical and mental faculties) at the time of the accident, the insurance carrier is not liable for the workers’ compensation claim. (See Tex. Labor Code §406.032(1)(A)). It does not matter that the accident was not the fault of the claimant. The intoxication serves as an absolute exception to liability, regardless of the cause of injury. See Texas Indemnity Insurance Company v. Dill, 42 S.W.2d 1059 (Tex. App.—Eastland 1931), aff’d 63 S.W.2d 1016 (Tex. Comm’n App. 1933). <strong> You are not required to go to the company doctor. The day of your injury, you should be seen by a doctor that will properly note all of your physical complaints from the accident. A doctor providing treatment to someone who is injured should be more concerned about making their patient whole, then building a defense for an insurance company. If the doctor you see tells you to only write down the most serious injuries and they will deal with the others later. Be very weary of the loyalty of the doctor. Do not allow the adjuster or your companies HR department to select your treating doctor. Even if your employer is in a network, you have the ability to select your own doctor. Call us, we can help you to find a doctor that has your interest at heart. Intoxication is defined as the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage or controlled substance or controlled substance analogue. This does not include medications taken by the injured worker, which were prescribed by a doctor to them. <strong>The question of intoxication must be raised by the insurance company in a timely fashion. If the insurance company fails to timely dispute the claim under the defense of intoxication timely, they are barred from doing so. As the injured worker, you presumed to be sober at the time of the injury. Bender v. Federal Underwriters Exchange, 133 S.W.2d 214, (Tex.Civ.App.—Eastland, 1939, writ dism’d judgm’t correct). However, if the injured worker tests positive for non-prescribed drugs or alcohol content, the burden shifts, as a matter of law, back upon the claimant to establish that he was not intoxicated at the time of the accident. If the insurance carrier presents “probative evidence” of intoxication to rebut the presumption of sobriety, then the claimant has the burden to prove that he was not intoxicated (had the total use of his physical and mental faculties) at the time of the injury. March v. Victoria Lloyds Insurance Co., 773 S.W.2d 785 (Tex. Civ. App.—Fort Worth 1989, writ denied). If the injured worker refuses the testing, the burden does not shift as a matter of law. See Appeals Panel Decision 033057. However, the hearing officer may find that the burden shifts through other evidence. If the insurance carrier shifts the burden to the claimant in regards to intoxication, the claimant must prove by preponderance that he had the full use of his physical and mental faculties at the time of the accident. Although, scientific or medical evidence is not required to establish sobriety, a one line statement that he was not intoxicated does not overcome the presumption. See Appeal Panel Decision 062507-S. The claimant may use the testimony of his co-workers, supervisors and other witnesses to establish sobriety. Even witnesses that may e unwilling to testify as to sobriety may establish the same when they say that the claimant was allowed to operate dangerous machinery or equipment. Testimony as to how long prior to the accident they had worked together that day, and claimant’s actions during that time period. How long after the accident was the test administered? If more than 24 hours has passed, most hearing officers will not consider the test. If the testing was for alcohol, is the carrier trying to extrapolate the testing to shift the burden? Many factors must be taken into consideration (ie weight, age, activity level, food intake…) to perform a proper extrapolation. Who administered the testing? If it was the employer, did they know how to properly administer the test? How can they establish that it was not contaminated? If it was for alcohol, was the machine calibrated properly? It is not unusual that the employer does not have the proper expertise to administer testing after an accident. Intoxication is a tricky area of a workers’ compensation claim. Do not attempt to handle it yourself. Contact an attorney to assist you. You can call the Morris Law Firm to set up an appointment to go over your case at our Dallas location, <strong>(214)357-1782.</strong>

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