CHARLESTON — The state Supreme Court has ruled that in workplace accidents where a blood alcohol concentration test is given within two hours, pending that result, the intoxication is deemed the cause of the workplace injury.
The case revolves around West Virginia code that says if an employee undergoes a blood test within two hours of a workplace accident and the test reveals a blood alcohol concentration (BAC) of 0.05 or above, the employee is deemed intoxicated and this intoxication is deemed the proximate cause of the injury, according to a November 8 memorandum decision.
The central question in this appeal is whether the statutory presumption of intoxication, once established under these conditions, is rebuttable.
Justin Hart was employed by Panhandle Cleaning & Restoration and, on September 13, 2020, he arrived at 7 a.m. at the defendant's Wheeling office and left approximately 20 minutes later with a co-worker and traveled to the Mr. Bee Potato Chip Factory in Parkersburg.
Around 8:30 a.m., Hart began working in a lift at a height of 17 feet. The accident occurred at approximately noon, resulting in severe injuries.
A blood test conducted at the hospital at 12:55 p.m. revealed a BAC of 0.053. Despite being a heavy drinker who admitted to consuming alcohol the night before, Hart denied being hungover during the accident, the decision states.
Hart's application for workers' compensation benefits was denied by the claims administrator, citing intoxication as the cause. The denial was upheld by the Office of Judges and subsequently affirmed by the Workers' Compensation Board of Review (BOR). Hart appealed, arguing that the BOR erred in concluding that the statute barred his claim.
The court applied a de novo standard of review and emphasized the clear and unambiguous language of the statute. According to the statute, if the specified conditions are met, the employee is "deemed intoxicated," and this intoxication is considered the proximate cause of the injury. The court found no language in the statute allowing for the rebuttal of intoxication once established.
Hart argued that the statute is silent on the irrebuttable nature of the presumption and that the term "deemed" is ambiguous. However, the court rejected this argument, emphasizing that a statutory provision that is clear and unambiguous should be given full force and effect.
The court also declined the petitioner's invitation to read a rebuttable presumption into the statute, stating that it is not the court's role to add language that the Legislature intentionally omitted. The court noted that other workers' compensation statutes explicitly include rebuttable presumptions, highlighting the intentional omission in the West Virginia code.
In conclusion, the court affirmed the BOR's order, stating that under the West Virginia code, once the specified conditions are met, the employee is deemed intoxicated, and the presumption of intoxication is not rebuttable. Consequently, the court upheld the denial of the petitioner's workers' compensation claim.
Chris Wallace of the Wallace Law Firm, who represented Hart, said his concern is that the decision establishes a bright line standard for declaring an injured worker intoxicated and that this intoxication is the cause of injury, with no chance to rebut that conclusion.
"This is particularly troubling with the language relating to 'controlled substances,' which includes marijuana," Wallace told The West Virginia Record. "As the statute is now interpreted, if you sit next to someone who is legally smoking marijuana and you get hurt the next day at work, if a blood test is performed within two hours of your time of injury and the test detects any amount of THC, you lose. You have no claim and there is nothing you can do to rebut that finding. It doesn't matter if everyone in the case agrees that you were not impaired. The Employer's insurance company has every right to deny your claim and there is nothing the injured worker can do about it."
Wallace said Hart's blood alcohol level was three one-thousandths of a percentage point over the limit when he suffered injuries.
"There was no evidence that any of his co-workers or supervisors thought he was impaired, even though he interacted with them before getting hurt," Wallace said. "In fact, after speaking with his supervisors, he was assigned to work twenty feet in the air on a scissors lift. Had they even suspected impairment, that never would have happened."
Wallace said the first Administrative Law Judge to hear this case found the result to be "absurd" but legal.
"I was hoping to convince the court that injured workers should at least have the opportunity to argue they were not impaired," Wallace told The Record. "The court decided otherwise."
West Virginia Supreme Court of Appeals case number: 21-0853