What Do You Think: Did Prior Night’s Drinking Bar Benefits to Worker who Plummeted from Lift? 

30 Nov, 2023 Chris Parker


Wheeling, WV (WorkersCompensation.com) -- In West Virginia, there is a presumption that a worker’s injury was caused by intoxication if his blood is promptly tested, and his blood alcohol content exceeds a certain limit. 

But what if, despite exceeding the limit, the worker shows that another factor, such as faulty equipment, was the actual cause of his injury?  

Consider the case of an employee for a cleaning and restoration company who arrived at his jobsite at around 7:30, spoke to two supervisors, and took part in a group meeting. He admitted that he was a heavy drinker and had been drinking the night before. But no one thought he was impaired or smelled of alcohol. He also said he wasn’t hungover at the time. 

The employee was assigned to work in a lift that was 17 feet above a concrete floor. At noon, while working, his safety harness turned out to be too short at one point. He had to unclip it and reclip it to move. While doing so, he fell to the floor and suffered multiple severe injuries. 

At 12:55 p.m., his blood was tested at the hospital. The blood alcohol content was .053. 

The claims administrator denied the claim on the basis that the injuries were caused by intoxication. 

The worker, on other hand, claimed that he successfully showed that, while he drank the prior night, his intoxication did not cause the fall. 

An employee may not obtain workers’ compensation benefits for an injury caused by his own intoxication, the Supreme Court of Appeals of West Virginia explained. 

Further, under West Virginia Code § 23-4-2(a): an employee is presumed intoxicated, and the intoxication is deemed to be the proximate cause of the injury, if: 

(1) The employee is given a blood test within two hours of a workplace accident; and 
(2) The blood test reveals a blood alcohol concentration of .05 or above. 

Did intoxication cause worker’s fall? 
A. Yes. The fact that he was not noticeably intoxicated and the fact that the harness was too short overcame the statutory presumption that intoxication caused his fall. 
B. No. The company successfully met the two requirements under the statute. 

If you chose B, you sided with the court in Hart v. Panhandle Cleaning and Restoration, Inc., No. 21-0853 (W. Va. 11/08/23), which held that the statute did not allow the worker to try and argue that his fall wasn’t caused by his intoxication. 

The court explained that the statute’s language is clear; once intoxication has been established, the statute provides two mandatory directions: 1) the employee is deemed intoxicated and 2) the intoxication is the proximate cause of the injury. 

There is no language in this statute permitting a claimant to rebut intoxication once it has been established, the court wrote. 

The fact that the legislature explicitly included rebuttable presumptions in a number of workers' compensation provisions, the court observed, showed that its decision to omit the opportunity for rebuttal from § 23-4-2(a) was intentional. 

The court thus affirmed the denial of the claim. 

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