Workers' Compensation and the Intoxication Defense

If you are injured at work and there is evidence of either on or off the job use of a non-prescribed controlled substance, or if your blood alcohol level is 0.08 percent or more, you could forfeit your rights to workers’ compensation benefits. Refusing to take a post-accident drug test indicates you are intoxicated, which employers will argue is what caused the accident. The intoxication defense is often used tactic by employers and insurers to avoid paying workers’ compensation benefits.

If you have been accused of being intoxicated, whether you were or not, and the work comp insurance company is denying your benefits, there may be hope. Believe it or not, you may have a better chance of beating the accusation that you used drugs, as opposed to alcohol. If your blood alcohol is in excess of 0.08% on a post-accident drug screen, preserving your claim for benefits will be very difficult. You may still receive emergency treatment, but after that, you are on your own.

If you are accused of using non-prescribed or illicit drugs, your case will likely turn on whether or not the employer has a written and promulgated drug use policy, and the way in which the blood, urine, or hair sample forming the basis of the defense was collected. If your employer did not have a written policy prohibiting drug use, or if they cannot prove you received a copy, and if the written policy did not expressly state using drugs or alcohol at work results is a forfeiture of benefits, the insurer does not get the benefit of the presumption of intoxication usually available with a positive drug test result. They may still try to prove intoxication, but they cannot shift the burden to you to prove you did not use the substance--a critical difference.

Secondly, if the sample was not collected using uniform chain of custody procedures, the toxicology results could be subject to exclusion. This means the collection, preservation and transport of the specimen, as well as the testing itself, must conform with established protocols. If the employer and/or specimen handler does not follow the rules, the intoxication defense will be weakened and you may still have a valid claim for benefits.

Contact Our Baton Rouge Workers’ Compensation Lawyer Today

Obviously, it is best to never drink on the job or even before work, and to “just say no” to all illicit or nonprescribed drugs. However, if you find yourself in this predicament, the case may be salvageable. If you are being denied workers’ compensation due to a failed drug test, don’t hesitate to seek advice from a Baton Rouge workers’ compensation attorney who has experience handling intoxication defense cases--such as ours at J. David Smith, Attorney at Law. Our trusted legal team will fight for your rights.

Don’t hesitate to contact us at your earliest convenience by calling (855) 973-1098.

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