Workers’ compensation in North Carolina is intended to cover certain expenses for all work-related injuries suffered by employees. However, if that employee has been drinking on the job, the employer can use this as a defense to argue the injury should not be covered.
Per the 1984 North Carolina Appeals Court ruling in Anderson v. Century Data Sys., Inc., the employer has the burden to prove intoxication pursuant to statute. Being drunk on the job is an effective defense to workers’ compensation claims in North Carolina if:
- Intoxication was not caused by alcohol/ substance provided by the employer or his supervisory agent;
- He or she was under the influence of a controlled substance without a prescription;
- He or she had willful intention to injure or kill himself/ herself or another.
In some cases, impairment may be clear-cut. In other cases, it becomes similar to a criminal DUI case in that the accuser has the burden of proving the claimant was impaired. This can be established by producing police and emergency responder reports, witness statements, medical records and circumstantial evidence.
In the recent North Carolina Court of Appeals case of Diaz v. Spanish Contractors, plaintiff was a subcontractor for defendant in February 2013 and was on the job when he fell off a ladder and suffered numerous serious injuries. He filed a Form 18 notice to accident to employer alleging he suffered a compensable brain injury, broken bones, injuries to his kidneys and an inability to eat and swallow.
His employer responded with a denial of the workers’ compensation claim, arguing first of all that the worker was not an employee and secondly, it had no liability either way because plaintiff was drunk at the time of his fall.
The case went before a hearing with a deputy commissioner, who determined there was an employer-employee relationship at the time of the accident, but that plaintiff’s blood-alcohol level at the time of injury was the proximate cause of his injuries and thus he was not entitled to collect any workers’ compensation benefits.
That decision was appealed to the full commission, which affirmed, and so too recently did the appeals court.
According to court records, the 23-year-old man was working as a framer, constructing and installing wood framing on construction sites. One afternoon, at the end of a work day, plaintiff fell approximately 20 to 25 feet from a ladder, hitting the concrete pad below. No one saw the fall.
A co-worker discovered him soon after and called 911. He thought plaintiff fell because something had broken, as he noted a broken 2×4 near the ladder. He had not seen plaintiff drink that day.
A police officer first to arrive on scene did not see any alcoholic beverages near plaintiff, but other officers who arrived later saw discarded alcoholic beverage containers on site.
At the hospital, the doctor noticed a smell of alcohol on plaintiff. A blood test was drawn, and revealed a blood-alcohol concentration of 0.045. Using a process known as retrograde extrapolation, which is used to determine one’s BAC in the hours prior to the test, toxicologists determined plaintiff’s BAC at the time of the accident was between 0.045 and 0.083, with an 89 percent likelihood plaintiff had a BAC of 0.05 at the time of the accident.
Employer expert witness opined that at 0.05, plaintiff’s faculties would have been impaired.
Plaintiff denied this, and argued he did not drink during the week, though on a weekend day, he would routinely drink between 12 and 24 beers.
The full commission ruled – and the appeals court affirmed – that defendant employer established a rebuttable presumption that claimant was impaired and claimant failed to rebut that presumption. Given that this was more likely than not a causal factor in his accident, the court ruled, the denial for compensation was appropriate.
If you have been injured at work, contact the Lee Law Offices at 800-887-1965.
Diaz v. Spanish Contractors, June 7, 2016, North Carolina Court of Appeals
More Blog Entries:
Gerdon v. Con Paulos, Inc. – Workers’ Comp. for Psychological Injury, June 8, 2016, Charlotte Workers’ Compensation Lawyer Blog