As we discussed back in October 2016, Section 11 of the Act provides, in part, that there is a “rebuttable presumption that an employee was intoxicated and that the intoxication was the proximate cause of the injury if at the time of the injury the employee refuses to submit to testing of blood, breath, or urine. However, the rebuttable presumption may be overcome by the preponderance of the admissible evidence that the intoxication was not the sole proximate cause or proximate cause of the accidental injuries.” This very issue was at the heart of a case recently tried by Colin Mills.
While it was not disputed that the claimant slipped and fell on ice injuring his back and head while taking out trash during his shift, the claimant refused a drug test after he presented to the Emergency Room immediately following the incident. The Emergency Department records reflected that “there was neither drug use nor alcohol use involved in the accident,” and that on physical examination the claimant had “a normal level of alertness and no evidence of intoxication.” However, these notations were made before being advised of the need for the drug test. After being notified of the need for the drug screen, the Emergency Room notes indicate that the claimant then became anxious and insistent that the drug screen was not necessary. In fact, the claimant went so far as to change the insurance information that he provided to the Emergency Department (to Medicaid) so that no drug screen would be required for treatment. In addition, when questioned about the refusal to submit to screening during cross-examination at trial, the Arbitrator astutely noted that the claimant was evasive in his answers.
After considering the Emergency Room records and the claimant’s testimony, the Arbitrator was not persuaded that the claimant had rebutted the presumption of intoxication by a preponderance of the evidence and, as such, the Arbitrator found that the claimant failed to meet his burden of establishing that he sustained accidental injuries which arose out of and in the course of his employment with the insured.
Congratulations to I&F Partner Colin Mills for another outstanding result.
