Alcohol Alone Doesn’t Bar Kentucky Worker from Benefits Under Statutory Presumption

Case File

While a Kentucky worker had alcohol in his system at the time of an on-the-job accident, he wasn't barred from recovering workers' compensation benefits.

Case

Safe Zone v. Perry, No. 2026-SC-0141-WC (Ky. 09/24/26)

What Happened?

A traffic control flagger reported to his employer for work at 7 a.m. and worked at three locations during the day in question. At the third site, the flagger received permission to go to a convenience store to purchase a phone charger and cigarettes. The flagger had to keep his phone charged because he received work communications from the employer.

As the flagger was crossing the road to return to the worksite, he was struck by a car that was operating without headlights and sustained injuries.

At the hospital, the flagger underwent a blood alcohol test, which showed 47 mg/dL of ethanol in his system. He underwent surgery and received two screws in his left ankle and a rod in his left leg and had a small portion of his intestines removed.

A doctor diagnosed a work-related right lung pneumothorax and left tibia comminuted and segmental fracture. He further noted that the work accident required two small bowel enterotomies.

The doctor assessed an 11% impairment rating for the left ankle and tibia conditions, placed the flagger at maximum medical improvement, and opined that the flagger could not perform his pre-injury work and recommended restrictions.

Another doctor reviewed the records and noted:

+ Kentucky law sets ethanol concentration for driving under the influence at 80 mg/dL.

+ The flagger drank a six-pack of beer per day and had smoked cannabis and used cocaine the day before the work accident.

+ The flagger had an estimated blood alcohol level between 56.7 and 68.3 mg/dL at the time of the accident, a level where physical impairment and mental function were expected.

The employer argued that the flagger's claim was barred because he was voluntarily intoxicated.

An administrative law judge conducted a Benefit Review Conference and found that the flagger sustained compensable work-related injuries in the accident. The ALJ determined that the flagger's average weekly wage at the time of the accident was $569.55 and awarded temporary total disability benefits at the rate of $379.70 along with medical benefits for treatment of the left lower extremity.

On review, the Board upheld the ALJ's rulings on work-relatedness, and the Court of Appeals affirmed the Board's decision.

The employer appealed to the Kentucky Supreme Court.

Rule of Law

KRS 342.610(4) creates a rebuttable presumption that certain illegal, nonprescribed substances, or prescribed medications taken in excess of prescribed amounts, caused the injury when scientifically reliable testing detects them at levels capable of impairing mental or physical capacity.

What the Kentucky Supreme Court Said

The Kentucky Supreme Court adopted the reasoning of unpublished Court of Appeals' decisions interpreting the KRS 242.610(4) to exclude alcohol because it is neither "an illegal non-prescribed substance" nor "a prescribed substance," effectively making that interpretation controlling authority statewide.

In the court's interpretation, "'voluntary intoxication' encompasses only 'illegal, nonprescribed substance or substances' or 'prescribed substance or substances in amounts in excess of prescribed amounts[.]' As alcohol is neither a prescribed nor an illegal substance, it does not fit within the purview of KRS 342.610(4)."

The court concluded that the Kentucky General Assembly chose specific categories of substances for the presumption and did not include alcohol among them. Therefore, the judiciary could not expand the statute to include alcohol.

Verdict: The Kentucky Supreme Court affirmed the Court of Appeals' decision.

Takeaway

Kentucky employers cannot rely on KRS 342.610(4)'s voluntary-intoxication presumption solely because an injured worker had alcohol in his or her system. The statutory presumption applies only to illegal, nonprescribed substances and prescribed medications taken in excess of prescribed amounts. However, employers may still attempt to prove intoxication or misconduct through other available defenses where supported by the facts.

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