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Intoxication as a Defense in a North Carolina or Virginia Workers Compensation Case



If you are found to be legally intoxicated at the time you were injured on the job, that finding can utterly destroy your workers compensation case, in both Virginia and North Carolina. Even if blood alcohol testing appears to reveal levels below the legal limits, you case may still be tossed out.

This article explains how and why that can happen.

Of course, the most common type of intoxication is Alcohol.

Why is alcohol dangerous?

According to Alcohol Rehab Guide, more than 5.2 million people die worldwide each year due to alcohol-related injuries; 3.2% of all deaths are caused by alcohol. “Alcohol accounts for 10-18% of emergency room visits; a majority of these visits are for head injuries.” Yearly, over 210,000 ER visits in America are alcohol-related. “An average of one-third of fatal and nonfatal falls involve alcohol (though any fall has the potential to be fatal for the elderly).”

Alcohol is a leading cause of vehicle accidents. The more alcohol in a person’s blood, the more likely the person is to be injured. Many victims of drunk driving accidents fail to wear seatbelts or use a helmet. Many acts of violence, including violence at the workplace, are due to alcohol.

According to Alcohol Rehab Guide; alcohol use is generally higher in garbage collection, mining, construction work, food service work, and customer service – than in other jobs. “High levels of stress or physical demand and drinking cultures may contribute to rates of alcohol abuse in these sectors.” “As much as 16% of workplace injuries involve alcohol; 15% of victims of job-related deaths have tested positive for blood alcohol.”

A Typical Scenario that can Catch You Off Guard

So, you tied one on last night, staying up till 4:30am drinking with your buds. You need to get up at 5am and be on the job before your 7am construction job.

You drank a lot and you really don’t even have time to get to sleep. You catch maybe 30 minutes of sleep and you’re barely able to drag yourself out of bed at 5am, you are still buzzed and on top of that, you’re hurting pretty bad. But you can’t be late and now you’re running late. So, you don’t shower, but you get dressed, and grab a beer and suck it down quick on the way out to steady yourself.

Let’s say you have a ride/carpool to work with your boss and a co-worker, which is fairly common. Of course, you reek of liquor and beer, but at 5:30 am, you don’t really care, you just want to start your day and get to work. I mean, everybody drinks, right? Of course, your boss and co-worker notice that you reek, but don’t say anything because that’s a common thing on any construction job. You get to the jobsite and at clock-in, and another one of your co-workers comments that you smell like a brewery, you exchange some choice words, and although you don’t notice it at the time, some of your words may have come out a little slurred.

You’re not worried because you’re used to this. You work hard. You play hard. So does everyone on this job.

You have a roofing job and on this particular day, while you’re up on the roof, although you’re tied off, you miss your footing on a toe board, and off the roof you go. Although you get caught by the safety line and don’t’ make it all the way to the ground, you’re slammed into the building and suffer really severe injuries.

You are taken by ambulance and at the hospital, and after a couple of hours, they take blood which ends up showing a .07 alcohol level.

You find out about the results, and figure you’re OK, because the legal limit in VA and NC is .08 and you were under it, right? Of course, your injuries are pretty bad and you can’t work.

You then find out that the WC insurance company has DENIED your claim due to WILLFUL intoxication.

What the heck is going on?

A BAC Finding Below the Legal Limits of Intoxication can Still Kill Your Case

So let’s first answer the obvious question: Why does our severely injured roofer get denied his benefits if he’s only a .07 BAC when he’s tested at the Hospital?

There are a couple of answers.

The first is that in Virginia, we have discussed in a video and article that a claim can also be knocked out due to a willful violation of a safety rule. Intoxication is listed in the same list as that law or statute. And it says that if there is a level of alcohol or non-prescribed substance in excess of the intoxication standard listed in the criminal statute, that creates a PRESUMPTION that the employee was, in fact, intoxicated and his claim is knocked out.

But wait, we said he was only .07 and we know the minimum in Virginia and North Carolina as well is a .08 BAC?

Unfortunately, I left out one key element. When is the intoxication measured as far as workers comp law is concerned? The answer is: AT THE TIME OF THE INJURY.

So, we said in our case of the injured roofer that his blood was not taken until about 2 hours after the injury and it was a .07 then. So, all the defense has to do is get a toxicologist to come in to talk about the rate a person of your height and weight would metabolize alcohol and a couple of other things and boom! You are well over .07 if we wind back the clock two hours until the time of your fall and your case is over. These toxicologists are well known and frequently testify in workers compensation and other alcohol or substance impairment related cases.

Now of course you may come in and try to rebut that presumption and say you were not intoxicated, that you had stopped drinking the night before, etc. But that’s where your co-workers who smelled alcohol on your person and heard your slurred speech that morning are going to chime in. And there goes your case.

I should also mention that the Virginia Criminal Statute also makes it illegal to drive and gives legal limits for cocaine, PCP and crystal meth as well, either by themselves or in combination with alcohol. So if you can be said to be over the legal limit on any of those at the time of the work accident, your case is probably sunk as well.

Now North Carolina has a slightly more liberal statute on intoxication on a workers comp claim. If you watched my video on violation of safety rules, we said that unlike Virginia, North Carolina will not knock out your claim if you willfully violated as safety rule and got hurt because of it. What will happen is you will lose 10% of your weekly comp checks. But the claim goes forward.

That unfortunately is NOT the case with intoxication in North Carolina. If the defense can prove that you were intoxicated at the time of your injury, your case is over.

But North Carolina law says to be “intoxicated” or “under the influence,” the employer has to show that “you have consumed a sufficient quantity of intoxicating beverage or controlled substance to cause [you] to lose the normal control of your bodily or mental faculties, or both, to such an extent that there was an appreciable impairment of either or both of those faculties at the time of injury.”

Again, that part sounds like a little harder standard to reach, but it also has that sticky language “at the time of injury,” which tells us that even if your blood test came back a bit under the legal limit, they can still wind the clock back to the time of accident and say it was over the limit then.

That’s because the law also says like Virginia that a result of a blood test consistent with being over the legal limit from either alcohol or non-prescribed narcotics, creates a rebuttable presumption of impairment. And again, they can wind back that clock with an appropriate expert, to the time of the accident, even if your blood test didn’t’ quite reach the legal limit of .08 at the time it is drawn.

So in many ways, that’s like Virginia Law.

The Intoxication Must Have Caused Your Injury

But we do have to consider one other clarification here. So you may be asking:

If you are found to have been intoxicated on the job, and something just falls on you out of nowhere, or someone else messes up and you are hurt, is that the end of your case?

And the answer is NO, we are not saying that. Why? Because both in VA and NC, the injury must be CAUSED by the intoxication. In other words, the defense must be able to prove that were it not for your intoxication, the injury would not have occurred.

So you happen to have been drunk on the job, let’s say you are riding as a passenger in a work truck on the way to a site and the truck crashes. In such an instance, your being intoxicated had ZERO to do with the crash. So, in that instance, the intoxication would be irrelevant.

Or let’s say you’re on your job site doing what you are supposed to do and someone drops a piece of equipment on you without warning and you’re hurt bad as a result. Unless they can show you were warned and failed to respond appropriately by getting out of the way, or that you were not where you were supposed to be due to your intoxication, your being drunk has nothing to do with something falling on you at work.

Where you usually see the intoxication causing an issue is where you are engaged in your job at the time of your injury and that job depends on your balance, coordination, and attention, such as falling off of a roof, operating machinery, or driving. If the defense can prove you were over the legal limit at the time of the accident—and remember—that is the important time, NOT when your blood is drawn at the hospital, then they are probably going to be able to knock out your claim.

So the bottom line, and my considered advice to everyone out there who is thinking of getting wasted on a work night: If at all possible, if you are still buzzed when you get up, or even if you don’t feel buzzed, but you know you stopped drinking or using drugs pretty close to the time you have to get up and go to work, call in sick!!!

It’s not worth it if you get severely injured. As we’ve just discussed, there is a good chance you will not recover anything, no matter how badly you are hurt.

And that is NOT a place you want to be, with what could be hundreds of thousands of dollars in medical bills hanging over your head, not to mention the loss of income from being unable to work due to your injuries.

North Carolina and Virginia lawyer Joe Miller understands what steps employees must take to file a workers’ compensation claim after an accident, what medical treatments are usually required, what benefits the worker or the family members can claim, and what defenses the insurance companies are likely to assert, including those of intoxication.

At Joe Miller Law Ltd., our North Carolina and Virginia workers’ compensation lawyer has helped thousands of injured and ill employees obtain just recoveries including temporary and permanent disability benefits. To assert your rights to compensation if an employee is injured or a loved one dies while working, call attorney Joe Miller Law Ltd., at 888-667-8295 or use my online contact form to schedule a free consultation.

Our law firm does have a way for you to provide your details of your accident and injuries if you simply want to do that electronically from the comfort and safety of your home at any time of day or night. To utilize this service, simply click here to get to our New Electronic Case Review. We’ll get back to you, typically within 24 hours, to provide our response as to whether your situation is one where we can provide you with legal representation. If we require more information in order to make that determination, we’ll contact you and ask for more information. If we ultimately determine that we cannot represent or assist you, we will not leave you high and dry. We’ll provide you with other resources to assist you.

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If you are looking at this site, you or a loved one has probably been hurt. If that's true, you've come to the right place. Helping people who have been hurt is what we do. In fact, it is all we do. Joe Miller Law is a law firm concentrating exclusively on representing people who are injured by the carelessness of others or those hurt on the job. We provide the highest quality legal services to people who have been seriously injured. We practice Personal Injury law and Workmens' Compensation law in both Virginia and North Carolina.