On occasion, an insurance company will raise the Intoxication Defense (NJSA 34:15-7) to prevent an injured worker from receiving workers compensation benefits.
The proofs necessary to establish that the intoxication is the sole and proximate cause of the injury makes the defense extremely hard to establish. The same standard applies to alcohol intoxication and/or illegal drug use.
An example of how difficult it is to establish the Intoxication Defense is the Warner v. Vanco Mfg. Inc., 299 N.J. Super. 349 (App. Div.), certif. denied, 151 N.J. 72 (1997). In Warner, the injured worker had spent the night before and the morning of his accident drinking alcohol beverages including one-half gallon of vodka. His blood alcohol level was .29 which was almost three times the legal limit to drive in New Jersey. By today’s law, the injured worker’s blood alcohol level is over three times the legal limit of .08
The Workers Compensation Judge however found that the Intoxication Defense did not apply. Co-workers testified that the injured worker was not staggering around on the worksite and that the crane hook which the injured worker was trying to attach when he fell off a scaffolding was not working properly. Thus, the Workers Compensation Judge found that the intoxication was not the sole and proximate cause of the injury and the injured worker was entitle to Workers Compensation benefits.
Another example of how difficult the Intoxication Defense is to establish is the 2006 case of Tlumac v. High Bridge Stone, 187 NJ 567 (2006). A truck driver who had a one-vehicle truck accident and whose blood alcohol level was established to be between .10 and .18 at the time of his accident was found to have a compensable workers compensation case. The New Jersey Supreme Court upheld a Workers Compensation Judge’s decision based upon the fact that other factors may have contributed to the accident including excessive hours of work in weeks prior to the accident and exhaustion from the truck driver repairing his home’s roof the night before the accident. The New Jersey Supreme court upheld the Workers Compensation judge’s decision based on reviewing the Intoxication Defense statutory language which states that the employer must prove that intoxication is the sole and proximate cause of injury or death. Thus, in Tlumac, the injured workers attorney was able to establish through evidence that Tlumac had worked excessive hours in weeks before the accident and had been exhausted from repairing his home’s roof the night before the accident.
The lesson learned when confronted with an Intoxication Defense is to determine whether, in fact, the intoxication is the “sole and proximate cause of injury or death”. If it is not, the injured worker will be entitled to workers compensation benefits even if he/she is intoxicated.