HENNESSY & ROACH QUARTERLY NEWSLETTER

January 2017

By Paul Berard

Issue

Under Illinois Law, if an employee tests positive for drugs, can the employer deny or limit benefits of his or her workers’ compensation claim?

Answer

Yes. In Illinois, an employer can deny all medical, temporary total disability and permanent partial disability benefits based on a positive drug test. The case should be denied if: (1) the injured employee’s blood alcohol level is 0.8 or higher; (2) there is any evidence of impairment due to the unlawful or unauthorized use of cannabis, a controlled substance or intoxicating compound; or (3) the employee refuses to take a test.

Drug intoxication creates a rebuttable presumption that the employee was intoxicated and that the intoxication was the proximate cause of the employee’s injury. Drug intoxication is not a per se bar to workers’ compensation benefits being awarded by the Commission. An employee may overcome the rebuttable presumption by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries.

Illinois Law

Under the Illinois law, 820 ILCS 305/11, no compensation shall be payable if:

  • The employee’s intoxication is the proximate cause of the employee’s accidental injury; or
  • At the time the employee incurred the accidental injury, the employee was so intoxicated that the intoxication constituted a departure from the employment. Admissible evidence of the concentration of:
    1. alcohol;
    2. cannabis as defined in the Cannabis Control Act;
    3. Controlled substance listed in the Illinois Controlled Substances Act; or
    4. Intoxicating compound listed in the Use of Intoxicating Compounds Act in the employee’s blood, breath, or urine at the time the employee incurred the accidental injury shall be considered in any hearing under this Act to determine whether the employee was intoxicated at the time the employee incurred the accidental injuries.

If at the time of the accidental injuries, there was 0.08% or more by weight of alcohol in the employee’s blood, breath, or urine, or if there is any evidence of impairment due to the unlawful or unauthorized use of: (1) cannabis as defined in the Cannabis Control Act; (2) controlled substance listed in the Illinois Controlled Substances Act; (3) intoxicating compound listed in the Use of Intoxicating Compounds Act; or if the employee refuses to submit to testing of blood, breath, or urine; then there shall be a rebuttable presumption that the employee was intoxicated and that the intoxication was the proximate cause of the employee’s injury. A rebuttable presumption creates a “prima facie case” that Petitioner’s intoxication was the proximate cause of the accidental injury. The employee may overcome the rebuttable presumption by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries. If the employee is unable to overcome the presumption, no compensation is payable.

In order for any testing to determine whether the employee was intoxicated at the time of injury to be admissible, the testing must be performed by an accredited or certified testing laboratory. In 2012, the Illinois Workers’ Compensation Commission adopted rules on sample collection and testing for alcohol and drugs necessary to implement these changes to Section 11 of the Illinois Workers’ Compensation Act. See: 50 Ill. Adm. Code 9140.5 to 9140.80.

Illinois Discussion

In Montez Webster v. Singley Construction, Inc. 11 IL.W.C. 02534 (Ill.Indus.com’n), 14 I.W.C.C. 0662, 2014 WL 4425525 (2014) the employee was injured while moving a concrete form in December 2010. The employee alleged injuries to his back. He was taken to an occupational health clinic and tested positive for low levels of marijuana and cocaine. A L5-S1 surgery was eventually recommended. The employer denied benefits. The employer obtained an opinion from an occupational medicine physician that the employee had some level of intoxication from marijuana and cocaine use hours or even days prior to his accident that would have left him with the symptoms of fatigue, lethargy, and depression. The employer’s physician opined that the employee’s fall may have been made more likely due to the use of these substances possibly days before. The employer’s physician never opined that the employee’s use of these substances was the proximate cause of his work injury. At trial, the employee testified that he had used these drugs two weeks prior at a party. The Commission found that the employee’s level of drugs and effect from them did not remove him from the protection of the Illinois Workers’ Compensation Act.

In Perry Pearce v. City of Chicago, 14 IL.W.C. 06049 (Ill.Indus.Com’n), 16 I.W.C.C. 0190, 2016 WL 2599824 (2016) the employee, a truck driver, felt both of his shoulders pop while pulling open a rear gate of his truck in February 2014. The employee was taken to the hospital and an alcohol test found him to have alcohol concentration more than .08.   The employer denied all benefits of the employee’s claim. At trial, the employee testified that he had ingested breath freshener with alcohol in it for his bad breath immediately prior to his alcohol tests. The Commission denied the claim and found that the employee was intoxicated and that his injury arose out of his intoxication and not his employment. The Commission held that the employee’s self-serving testimony was not sufficiently reliable or persuasive to overcome the presumption that his work injury was caused by his intoxication.

In summary, cases in this area, as in most “arising out of” cases, are very fact specific. The facts are often subject to more than one interpretation. It is the Commission’s duty to resolve disputed factual questions, draw reasonable inferences and conclusions, and judge the credibility of witnesses. The Commission’s findings will not be reversed on appeal unless they are against the manifest weight of the evidence.

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