Here is an article on an employee who was hurt at work - while they had a blood alcohol content.
Answer this question: did the employee have a leg to stand on in appealing the denial?
LINK TO TEXT: http://www.safetynewsalert.com/does-05-blood-alcohol-content-disqualify-employee-from-workers-comp/
A company tried to deny workers? comp benefits to an injured employee, saying he was intoxicated when he was injured. Just what counts as ?intoxicated? when it comes to workers? comp?
Jose Diaz worked for Spanish Contractors in North Carolina as a framer, building the wood framing for walls at a construction site.
One day at work, Diaz climbed a 20 to 25 foot ladder to reach his work area. He fell from the ladder, hitting a concrete pad below. Diaz, 23 at the time, suffered a brain injury, broken bones, kidney injuries, and an inability to eat and swallow. He applied for workers? comp.
Spanish Contractors moved to deny coverage, claiming Diaz was intoxicated when he fell. North Carolina?s workers? comp law says no benefits are provided for an injury if it was ?proximately caused by intoxication.?
A workers? comp judge and the full workers? comp commission denied benefits ruling Diaz was intoxicated. Diaz appealed.
A blood sample was drawn from Diaz a little more than an hour after he fell. His blood alcohol content(BAC) was .045.
When the case came to trial before a state appeals court, two forensic toxicologists testified they applied ?retrograde extrapolation? to calculate Diaz?s BAC when he fell.
One toxicologist put Diaz?s BAC between .045 and .083 when he fell, with a median value of .065. The toxicologist calculated an 88.9% likelihood that Diaz had a BAC of .050 or greater when he fell.
At .050 or higher, the toxicologist said a person may have signs of increased risk taking, divided attention, alteration of balance, slower reaction times, slower information processing and decreased depth perception.
A second toxicologist calculated that Diaz?s BAC when he fell was between .047 and .073. She believed a person with that BAC would be ?under the influence of alcohol.?
Diaz argued applicable state and federal law required the company to prove his BAC was .080 or greater to be considered intoxicated.
North Carolina law sets the legal standard at .080 for intoxication sufficient to convict a person of impaired driving.
However, the state law says DWI can also be proven via testimony when the BAC is unknown or less than .080.
The court said the question wasn?t whether Diaz had a BAC at or above .080. Instead, the question was whether he was intoxicated when he fell.
In making its decision, the court noted that emergency responders smelled alcohol on Diaz. Also, a police officer who responded observed multiple discarded containers of alcoholic beverages at the jobsite.
Add the testimony from the two expert toxicologists, and the appeals court said the company didn?t have to show Diaz?s BAC was at or above .080. The court affirmed the workers? comp commission?s order to deny benefits to Diaz.
Note: Workers? comp law differs from state to state. Different levels of proof of intoxication may apply in different jurisdictions.
(Jose Benito Diaz v. Spanish Contractors, Court of Appeals of NC, No. COA 15-764, 6/7/16)
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Sep 21, 2019EXPERT
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