Drug and Alcohol Defense to Workers’ Compensation Claims

Drug and Alcohol Defense to Workers’ Compensation Claims

Employers, insurers, and self-insurers are with increasing frequency interposing drug and alcohol defense to Workers’ Compensation Claims. The defense uses the drug and alcohol defenses found in many state workers’ Compensation Statutes.

A typical statue is one found in Oklahoma which provides that:

A. Every employer subject to the provisions of the Workers’ Compensation Act shall pay, or provide as required by the Workers’ Compensation Act, compensation according to the schedules of the Workers’ Compensation Act for the disability or death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault as a cause of such injury, and in the event of disability only, except as follows:

1. An injury occasioned by the willful intention of the injured employee to bring about injury to himself or herself, or another;
2. An injury resulting directly from the willful failure of the injured employee to use a guard or protection against accident furnished for use pursuant to any statute or by order of the Commissioner of Labor;
3. An injury which occurs when an employee is using substances defined and consumed pursuant to Section 465.20 of Title 63 of the Oklahoma Statutes, or is using or abusing alcohol or illegal drugs, or is illegally using chemicals; provided, this paragraph shall only apply when the employee is unable to prove by a preponderance of the evidence that the substances, alcohol, illegal drugs, or illegally used chemicals were not the proximate cause of the injury or accident. For the purposes of this paragraph, post-accident alcohol or drug testing results shall be admissible as evidence;

As you can quickly see, the awkward formulation of the statute leaves much room for contentious litigation by both plaintiff and defense counsel (i.e. was the intoxication the major contributing cause required for causation in these cases.)

As voluntary intoxication can be a complete bar to benefits the stakes can be very high in these all or nothing cases.

Kent Smith, Esq. will be presenting Defending Workers’ Compensation Claims: Drug and Alcohol Intoxication Defense at the SEAK 33rd Annual National Workers’ Compensation and Occupational Medicine Conference to be held on July16-18, 2013 on Cape Cod, MA.

He will discuss whether your drug and alcohol program and pre-employment testing programs are legal. He will explain how to: prepare before the work incident, preserve the evidence, and what steps need to be taken after a positive test for drugs or alcohol. Atty. Smith will offer practical suggestions for retention of an expert witness, taking of the deposition, and for effective use of a drug and alcohol program and defense.

Attorney smith is the managing member of the Des Moines and West Des Moines offices of Scheldrup Blades.  Atty. Smith defends employers and insurance companies in workers’ compensation, civil liability and employment law claims in Iowa and Nebraska. He also speaks regularly at the national and local level to trade groups and associations on workers’ compensation, civil liability and employment law issues. Additionally, Atty. Smith provides in-house consultations to help companies mitigate exposure in workers’ compensation and employment issues. Atty. Smith received his B.A. from Central College in Pella, Iowa, and his J.D. degree and Legislative Practice Certificate from Drake Law School in Des Moines, Iowa.

Atty. Smith is a member of the Iowa State Bar Association (serving on the Membership Committee), Nebraska Bar Association, the American Bar Association, Defense Research Institute and the Iowa Association of Workers’ Compensation Lawyers. Additionally, he has been published in DRI’s For The Defense: The Intoxication Defense in Workers’ Compensation.

For additional information about the SEAK National Workers’ Compensation and Occupational Medicine Conference click here.