Virginia Employer Proves Employee Was Intoxicated, But Still Loses Case

The Court of Appeals of Virginia recently reiterated that in order to defeat a claim for workers’ compensation benefits, it is not enough to show that an employee was intoxicated at the time of his or her injury; the employer also bears the burden of proving that the intoxication caused the accident resulting in injury [see Andersen Interior Contr. v. Nimmo, 2017 Va. App. LEXIS 49 (Feb. 21, 2017)]. Accordingly, where expert testimony established that blood tests taken some six hours after the employee’s fall from a ladder indicated the employee likely had a blood alcohol content (BAC) between 0.09 and 0.17 at the time of the fall, there arose a rebuttable presumption under Va. Code Ann. § 65.2–306(B) that the employee was intoxicated. There was nevertheless sufficient evidence in the record to support the Board’s finding that the employer failed to meet the burden of showing that the actual fall was caused by the employee’s intoxication. The employee had performed his job on the ladder successfully for some period of time before his fall. No other employee or supervisor witnessed the fall and the Commission found that the claimant’s fall was caused by the inherent dangers posed by working on ladders. Lifetime medical benefits were appropriately awarded, held the Court.


At the time the employee was hired, he attended an orientation program and subsequently signed an acknowledgement regarding the employer’s “Zero Tolerance” policy regarding reporting for duty while under the influence of alcohol or drugs. The employee admitted he had been drinking during the evening prior to his fall and injury. He denied drinking the morning of his injury, indicating that he had consumed some coffee and no food that morning.

Following his fall, the employee was taken to the hospital, and upon release, was taken to an occupational health center for blood and urine samples. He was not tested on site due to the severity of his injuries, which required immediate medical care. Based on the lab report, the employee had a BAC of at least 0.02 at the time his blood was drawn. Based on evidence provided by employer’s expert toxicologists, the deputy commissioner concluded that the employee’s BAC at the time of the accident was between 0.09 and 0.17 and that the presumption of Va. Code Ann. § 65.2–306(B) applied. The employee terminated the employee later that day.

While the employer’s experts could not state definitively that the employee’s intoxication caused the fall, both testified that that the employee’s level of intoxication prevented him from being “able to safely climb a ladder” and that the employee’s fall from the ladder was likely caused by his intoxication.

No one witnessed the fall. A supervisor indicated the floor near the ladder was level, clear, and dry. In fact, the work was being performed in a “clean room,” within which extra precautions were taken to maintain cleanliness, including the use of boot scrapers and covers with traction on the bottom, and ensuring all tools were clean prior to entry.

Deputy Commissioner’s Findings

The deputy commissioner accepted the employer’s evidence and found that the employee was intoxicated at the time of the fall. The deputy commissioner added, however, that she also accepted the employee’s explanation that he had encountered no difficulties maneuvering on the ladder for some time prior to the fall. She awarded lifetime medical benefits and some temporary total disability benefits.

Commission’s Findings

The Commission essentially affirmed, finding that falls from ladders were common in the workplace and occur in the absence of intoxication, citing OSHA regulations, data compiled by the CDC, NIOSH, and the Court of Appeals’ decision in Basement Waterproofing & Drainage v. Beland, 43 Va. App. 352, 597 S.E.2d 286 (2004). The Commission agreed that the employer legitimately terminated the employee for his wrongful act, and therefore, he was not entitled to continued wage benefits during the period of his partial disability.

Court of Appeals Decision

The Court acknowledged that the Commission found that the employer had proven that the employee was intoxicated at work, that employer had a safety rule, known by the employee, prohibiting employees from being at work while under the influence of alcohol, and that the employee willfully violated that safety rule. All of these findings were supported by credible evidence in the record, and therefore, were binding on appeal.

The Court added, however, that under the plain language of Va. Code Ann. § 65.2–306(A), the employer had to establish that the intoxication/willful violation of the safety rule caused the employee’s injuries—in this case that his intoxication was a proximate cause of his fall from the ladder. As the trier of fact, the Commission was entitled to weigh all of the evidence, including the employee’s testimony, the experts relied upon by the employer, the testimony of the project’s safety manager and the project foreman, the inherent risks posed by ladders, and the fact that the employee had performed his job on the ladder successfully for some period of time before his fall.

Here the Commission found that claimant’s fall was caused by the inherent dangers posed by working on ladders, concluding that the employer did not prove by a preponderance of the direct and circumstantial evidence that intoxication or violation of the employer’s safety rule caused the employee’s fall and injuries. Because there was evidence in the record that would allow a rational factfinder to reach such a conclusion, the Commission’s determination was binding on appeal.

Burden of Production versus Burden of Persuasion

The Court added that there was no question that the employer’s evidence satisfied the burden of production. The Court stressed, however, that just because the evidence was sufficient to allow the Commission to reach a conclusion did not mean that the Commission was required to reach that conclusion. “Simply put, it was employer’s burden to convince the Commission that the claimant’s fall from the ladder was proximately caused by his intoxication, and employer failed to do so” [2017 Va. App. LEXIS 49].

Takeaway: This Decision is Not an Outlier

I suspect that there are a number of employers who, when they read this case, determine that it is an outlier. It is not. As we note in Larson’s Workers’ Compensation Law, § 36.03, in virtually all jurisdictions, in order to defeat an injury claim, it is generally insufficient to show that the employee was intoxicated; the employer must causally connect that intoxication to the accident and injury. The Georgia statute, O.C.G.A. § 34–9–17(b), is pretty typical. No compensation is allowed “for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a controlled substance.” In a long line of cases, most notably, General Accident Fire & Life Assurance Corp. v. Prescott, 80 Ga. App. 421, 56 S.E.2d 137 (1949), Georgia courts have stressed that it isn’t enough to show intoxication; the employer must prove that intoxication was the proximate cause of injury or death.

Would the Employer’s Blanket Post-Injury Drug Test Policy Be Allowed Under New OSHA Rule?

In the instant case, the employee’s drug test was performed pursuant to an employer policy that required “post-accident/post-incident” drug testing. In this case, because of the seriousness of the employee’s injuries, the test was performed some six hours after the fall. Nevertheless, in spite of the passage of time, it still showed some alcohol still within the employee’s blood stream.

Yet, as I noted in an earlier post, blanket post-accident drug testing programs are in OSHA’s crosshairs [see [OSHA, “Improve Tracking of Workplace Injuries and Illnesses,” 81 Fed. Reg. 29624 (May 12, 2016)]. OSHA has taken the position that blanket post-injury drug testing policies deter proper reporting of injuries. OSHA also contends that significant data supports its position that many workers have been deterred from reporting injuries because of their employer’s post-injury testing policy.

The agency goes on to explain that appropriate post-injury drug and alcohol testing policies must be limited to situations in which (a) there is reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury, and (b) for which the drug test can accurately identify impairment caused by drug use.

The employer’s blanket drug test policy would appear to violate the new OSHA rule. If this sort of ladder fall were to happen today, would post-accident testing have been allowed on a case-by-case basis for this injury? It is difficult to say. Several supervising witnesses testified that after the fact, they thought that the employee may have been intoxicated. Still, as pointed out by the Commission, no one mentioned this to the employee before his fall. He had successfully maneuvered on the ladder for several hours before the fall. The Commission stressed that the fall was unwitnessed. It is difficult to see how an unwitnessed fall could provide the employer with evidence that the fall was caused by intoxication.

One suspects that employers are going to test the limits of OSHA’s rule. Might an employer do away with its “blanket” drug test policy, but nevertheless take the position that falls from ladders, ledges, or other heights “might” have been caused by intoxication and, therefore, require the test on an “individual” basis? We’ll have to see.

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