HENNESSY & ROACH QUARTERLY NEWSLETTER
By Bridget A. Zeier
Q: If an Employee tests positive for drugs, can the employer deny or limit benefits for a workers’ compensation claim?
Short Answer: Yes, if the employer can show that the employee was intoxicated at the time of the injury and that the intoxication was the proximate cause of the injury.
Intoxication is one of the affirmative defenses recognized by the Indiana Worker’s Compensation Board. Affirmative defenses tend to be disfavored by the Board and the burden is on the employer to establish all of the elements of the affirmative defense.
In Indiana, a positive drug test alone will not provide a defense to a worker’s compensation claim. Once the employer determines through a drug test that the employee was intoxicated at the time of the incident, the employer must then prove that the intoxication was the proximate cause of the injury. Willfulness is not required in order to successfully assert the intoxication defense.
As far as paying medical benefits, Indiana Code §22-3-2-8 requires the employer to pay worker’s compensation benefits unless the employee’s accident was caused by intoxication. A positive drug screening may show the presence of an intoxicant, but does not necessarily demonstrate that an employee was 1) intoxicated at the time of the accident or 2) that the intoxication caused the injury. Therefore, the employer may still have to pay for medical treatment even after a positive drug test if the injury is deemed compensable by the Board.
The answer to the question as to whether TTD benefits should be paid in the event that plaintiff has a positive drug test, even if the intoxication is not the proximate cause of the injury, is more complex. If an employee tests positive for drugs, the employer has the right to terminate that employee. As discussed in the last newsletter, there is currently no case law directly on point in Indiana as to whether TTD must be paid when an employee is fired for cause prior to a full duty release to work. However,, it is reasonable to interpret IC 22-3-3-7(c)(5), which states that TTD benefits may be terminated when the employee is unable or unavailable to work for reasons unrelated to the compensable injury, to mean that if the employee is terminated for a reason unrelated to the worker’s compensation injury, (i.e. testing positive for drugs) then it is reasonable to not commence or to terminate TTD benefits when an employee is working light duty and subsequently fired for cause. Even if the injury is found compensable by the Board, there is still a strong argument to be made to the Board that TTD benefits are not owed as the plaintiff made himself unavailable for work reasons unrelated to his employment (fired for cause).
It is also important to note that the intoxication defense can be successfully asserted when the employee’s drug test comes back positive due to a prescribed controlled substance. See Jones ex rel. Jones v. Pillow Express Delivery, Inc., 908 N.E.2d 1211 (Ind.Ct.App. 2009), where the Court concluded the definition of “intoxication” as used in Indiana Code § 22-3-2-8 includes intoxication by a prescription medication and it was determined that the claimant was not entitled to worker’s compensation benefits.
Unfortunately, even in cases where a drug test shows that a plaintiff was clearly intoxicated, sometimes in order to successfully assert the intoxication defense an expert witness is needed to establish that the employee was actually intoxicated at the time of the injury and the intoxication was the proximate cause of the injury as seen in the following cases.
In Dane Trucking v. Elkins, 529 N.E.2d 117 (Ind.Ct.App. 1988), even though the employee had a BAC of .17% 2 hours after the work injury, the Court found that there was no evidence that the intoxication was the proximate cause of the accident. The plaintiff was entitled to worker’s compensation benefits.
In NAPA/General Automotive Parts v. Whitcomb, 481 N.E.2d 1335, (Ind.Ct.App.1985), even though the claimant had a BAC of .13% at the time of the accident, his BAC level did not, standing alone, mandate denial of compensation, unless the employer satisfied its burden of proving that the death was due to or proximately caused by his intoxication.
In conclusion, when an employee tests positive for drugs, the best course of action is to deny the claim by filing State Form 53914, Notice of Denial of Benefits, denying payment of all medical and TTD benefits. The employer should also take disciplinary action against the employee, and in many situations it is best to terminate the employee. However, the employer should be on notice that their assertion of the intoxication affirmative defense will only be successful if it can be shown that the intoxication was the proximate cause of the injury. If proximate cause is not shown, the employer will be required to pay for all medical treatment until the employee reaches maximum medical improvement. However, if the employee has been terminated due to the positive drug test, the employer has a strong argument that TTD benefits are not owed as the employee made himself unavailable to work for reasons unrelated to the injury.
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