What Is the Intoxication Defense?
For instances where intoxication/impairment may be suspected, N.C. Gen. Stat. § 97-12 provides a complete defense against a claim for workers’ compensation where the injury and/or death of an employee was proximately caused by: 1) the employee’s intoxication unless the intoxicant was supplied by the employer; 2) the employee being under the influence of a controlled substance unless the controlled substance was prescribed by a practitioner; or 3) the employee’s willful intent to injure/kill himself or another.
“Intoxication” means the employee consumed enough of an intoxicating beverage, and “under the influence” means the employee consumed enough of a controlled substance, to cause the employee to lose normal control of their bodily or mental faculties, or both, to the extent there was a significant impairment of either or both faculties at the time of injury.
What if the Alcohol Is Provided by the Employer?
Should the intoxicating beverage be supplied by an employer, the employee will not be barred from receiving compensation. For example, in Evans v. Hendrick Automotive Group, the Plaintiff was not barred from receiving compensation when she climbed onto a railing of an escalator and suffered severe injury where evidence proved alcohol was supplied by her employer. In this case, Plaintiff attended a four-day sales meeting with all expenses paid by the employer. Her employer hosted a dinner at a restaurant. Alcoholic beverages were provided by the employer at a reception prior to the dinner, during dinner, and at the bar after dinner. Plaintiff consumed alcoholic beverages during this time.
The Burden of Proof
Per N.C. Gen. Stat. § 97-12, the employer has the burden of proof of the affirmative defense of intoxication. Plaintiff then has the burden to rebut the presumption.
Proof of intoxication alone will not result in the denial of compensation. Rather, there must be a causal connection between the injury and the intoxication. In Gaddy v. Anson Woods Products, the Court held Plaintiff’s partial finger amputation was not proximately caused by his intoxication and awarded compensation. Defendants proved Plaintiff was under the influence of alcohol at the time of injury. However, the Court found that employees had been instructed by the employer to assist co-workers. At the time of the accident, a co-worker was having problems with a machine and Plaintiff offered to help. The machine suddenly began working and caused injury. There was no evidence showing that Plaintiff would not have acted in this way had he not been intoxicated. The Court held Plaintiff was injured due to his attempt to help the co-worker, not because he was intoxicated. Another example of this could be when an intoxicated employee is riding as a passenger and involved in a motor vehicle accident. It would likely be held that the injury was not proximately caused by the intoxication.
Aside from impairment/intoxication, the employer must only prove the intoxication of the employee was more probable than not a cause in fact of the alleged incident resulting in injury. Diaz v. Spanish Contractors, 247 N.C. App. 899, 788 S.E.2d 683 (2016). An employer is not required to produce evidence disproving all possible causes other than intoxication. Id. Nor does an employer have to prove intoxication was the sole proximal cause of the employee’s injuries. Torain v. Fordham Drug Co., 79 N.C. App. 572, 574, 340 S.E.2d 111, 113 (1986). Expert medical evidence is likely required to demonstrate proximate cause by intoxication/impairment.
In Gratz v. Hill, the Court held the Plaintiff’s fall from a roof was caused by his intoxication and denied compensation. Plaintiff, a roofer, attempted to work on a roof on a cold, windy day, despite his co-workers advising against it. Plaintiff fell off the roof resulting in injuries. His co-workers reported the Plaintiff smelled of alcohol, and they witnessed him drink a beer before starting work. Evidence showed he had a BAC level of 0.11%, and cannabinoids and cocaine were found in his urine. At the time of the fall, expert testimony showed his BAC was likely 0.22%. A co-worker testified he fell from the roof due to consumption of alcohol and would have been safe had he not been drinking. Expert testimony indicated alcohol was clearly a principal factor in his fall, and drugs found in his urine could have also contributed to the alcohol’s effects.
Determining Intoxication or Impairment
In order to determine whether a Plaintiff is “intoxicated” or “under the influence,” blood and other medical tests are used. These tests must be generally acceptable to the scientific community and consistent with State/Federal law. “The effect of alcohol in the bloodstream as shown by proper chemical tests is competent evidence on the question of intoxication.” Robinson v. Live & Cas. Ins. Co. of Tenn., 255 N.C. 669, 672-73, 122 S.E.2d 801, 803 (1961). Whether or not BAC test results are admissible “depends upon a showing of compliance with conditions as to relevancy in point of time, tracing and identification of specimen, the accuracy of analysis, and qualification of the witness as an expert in the field.” Id. The test results create a rebuttable presumption of impairment from the use of alcohol or controlled substance(s).
The party presenting blood test results, or other chemical test results, must do so by first producing an expert witness(es) to explain how the test(s) were conducted, confirm the “scientific reliability” of the test(s), and affirm the test(s) were administered correctly. Id. Toxicologists are commonly used experts in determining whether a Plaintiff is under the influence or intoxicated. Their testimony can include:
- analysis of the facts/evidence presented;
- review of the data/test results and concentration levels;
- physiological effects of intoxicant/controlled substance (ability to make judgments, physical impairments, weight, naiveté, etc.);
- scientific community’s assessment of the type of blood/medical tests used; and
- whether they believed impairment/intoxication to be a proximate cause of injury.
The intoxication/impairment of an employee can be difficult to prove. Tests may not be taken directly after a work-related injury. If tests are run, the evidence may be inconclusive. Some tests do not include concentration amounts and only note a positive or negative result. Experts may prefer one test over another (such as a blood test over a urine test). Additionally, when it comes to controlled substances, many can remain in the blood or urine for long periods after the intoxicating effects have worn off. Experts have testified and provided evidence through scientific articles that, within the scientific community, it is recognized that competently performed forensic urine tests alone are unable to establish impairment. Moore v. Sullbark Builders, Inc., 198 N.C. App. 621, 625, 680 S.E.2d 732, 735 (2009).
It is important to consider what the data (test results, etc.) illustrates regarding the level of alcohol or drugs in the Plaintiff’s system and whether that rises to the level of intoxication. When it comes to drugs/prescription medications, the Court of Appeals in Moore v. Sullbark Builders, Inc., held that, in order to determine impairment, a drug test must provide levels of concentration. In Moore, a toxicologist testified the mere presence of cocaine or marijuana in a urine test does not prove impairment of an employee. Rather, it only indicates that, at some point, the employee used the substance. Thus, a positive urine test without concentration levels is insufficient to prove the impairment of an employee.
With regard to alcohol, N.C. Gen. Stat. § 20-138.1 sets the legal standard for intoxication at .080. Blood tests are a common testing method to determine an individual’s BAC level, however, they are not the only option. In Diaz v. Spanish Contractors, the Court held that, while a BAC of .080 would conclusively show intoxication, the State is not required to establish a BAC of .080 to prove intoxication. Rather, lacking a blood test, the State could “rely on opinion testimony as to whether a defendant was under the influence of alcohol.” Expert witnesses in Diaz used “retrograde extrapolation” to determine that Plaintiff’s BAC was between .045 and .083 at the time of the incident. Specifically, a toxicologist testified that a “scientific consensus” supported “significant impairment” at the level of .050 or greater. The toxicologist testified there was an 88.9% chance the Plaintiff’s BAC level was .050 or greater, and, therefore, Plaintiff was more likely than not under the influence of alcohol at the time of the incident.
When it comes to workers’ compensation claims where intoxication or being under the influence is a suspicion, it is important that employers immediately begin an investigation. The investigation should include interviewing witnesses and obtaining witness statements, as well as obtaining a statement from the injured worker. The more time that goes by before taking the statements, the less likely the witnesses or injured worker will remember the facts of the incident clearly. They may forget important details surrounding the incident regarding whether the employee was impaired/intoxicated. Hearings can also be prolonged for months or even years after the date of the incident. Reliance on a witness’s testimony that far from the date of the incident could result in forgotten details, etc.
Employers should investigate how the individual/employee was acting at the time of the incident. When interviewing co-workers, witnesses, etc. employers should ask questions such as:
- Did you witness the consumption of an intoxicant/controlled substance by the injured worker?
- Was the injured worker acting out of the ordinary?
- Was the injured worker stumbling or unsteady?
- Was the injured worker slurring their words?
- Were the injured worker’s eyes glassy?
- Did the injured worker smell of marijuana?
- Did you smell alcohol on the injured worker’s breath?
Additionally, employers should work to quickly obtain Plaintiff’s complete medical records for treatment immediately following the alleged workplace injury. The results from this treatment could lead to an investigation into Plaintiff’s intoxication/impairment.
Conclusion and Best Practices
Employers should make sure to have employment policies in place detailing the prohibition of alcohol/drugs in the workplace and working under the influence of the same. Encourage employees to report any suspicious behavior witnessed. Early reporting of suspicious behavior by co-workers could greatly help with this type of investigation. Employers should also implement a policy requiring drug/alcohol testing following a workplace injury. Verify that the tests used provide concentration levels for alcohol/drugs found, rather than just a positive test indicating the presence of drugs/alcohol. Ensuring that the above-outlined actions are put in place will greatly help in defending against a claim where intoxication/impairment is suspected.