January 1, 1900

by Kenneth W. Thayer

The New Jersey Workers’ Compensation Act states that an employer holds a defense to the payment of benefits if the cause of the employee’s injury was due to the employee’s intoxication. More specifically, the Act states that “compensation benefits are required in cases of personal injury or death, arising out of the course of employment … except when the injury or death is the intentionally self-inflicted, or when intoxication or the unlawful use of controlled dangerous substances … is the natural and proximate cause of the injury or death.” New Jersey courts have interpreted the statute as requiring the intoxication to not only be the “natural and proximate cause” of the injury, but to be the “sole cause” of the accident in order for the employer to benefit from the defense.

Recent Case Law

The most recent case to examine this issue is the matter of Tlumac v. High Bridge Stone. In Tlumac, the employee was hired as a tractor trailer driver for the employer. The employee claimed that he fell asleep at the wheel of his truck, causing the truck he was driving to veer off the road and strike a utility pole. The police officer who investigated the accident claimed that he detected the smell of alcohol on the employee. The employee was questioned as to whether he had been drinking, but stated that he had been drinking the night before and rather that his falling asleep at the wheel was the cause of the accident. Emergency medical treatment was provided, where blood samples were drawn at the hospital. The employee suffered serious injuries and subsequently filed a workers’ compensation claim.

A trial was held in which the employer presented evidence that the employee was intoxicated at the time of the accident and therefore was barred from pursuing and subsequently collecting compensation benefits. The employer presented medical evidence that, at the time of the accident, the employee’s estimated blood alcohol level was between .10% and .12%, well above the legal limit. The employee testified that he had been drinking the night before, however, fell asleep at the wheel due to lack of sleep because of long work hours and added family obligations. On these facts, the trial judge concluded that the employee’s intoxication was not the “sole cause” of the accident. The trial judge stated that the intoxication may have been one of many contributing factors leading to the cause of the accident, but was not the “sole cause” of the accident.

The matter came before the New Jersey Supreme Court, which agreed with the trial judge and affirmed the decision granting benefits to the employee. The Supreme Court held that “unless the employer shows by a preponderance of the evidence that the employee’s work-related injuries were caused solely by intoxication, the employee is entitled to recover workers’ compensation benefits.” Contributory factors such as an employee’s home life stresses, excessive work hours, and prior activities will be examined in determining whether the intoxication or the combination of the intoxication and other factors lead to the cause of the work place accident. The burden is upon the employer, not the employee, to show by way of greater evidence that the intoxication was the only cause of the accident.

 Possible Eradication of the Defense

The Tlumac decision is cause for concern for all employers in the State of New Jersey. Under the rationale of this case, the intoxication defense seems to no longer exist in the State of New Jersey, since the standard set by the Supreme Court is such a lofty one that few, if any, fact patterns could adequately fit to establish a successful defense. An employee can freely admit to being intoxicated at the time of the work place accident and still receive benefits as long as a contributory factor existed which led up to or caused the accident. An extreme example would be if the intoxication contributed to 99% of the cause of the accident and that 1% as attributed to outside factors. Per Tlumac, an intoxication defense by the employer would fail and benefits would be forthcoming. On the other hand, the same fact pattern presented in a municipal criminal matter could expose the intoxicated employee to various fines, penalties, and incarceration while barring civil recovery. Where the criminal statutes and courts have deterred and punished such behavior, the workers’ compensation act and the current holding in Tlumac have rewarded.

The responsibility for any change currently resides with the Legislature. Currently, a proposed bill (S2166) is pending which would bar a worker from receiving benefits if intoxicated at the time of injury or death. Until the time such legislation is enacted, employers must be made aware that an intoxicated employee who is injured in the course of employment may still be entitled to temporary disability benefits, medical treatment and a functional loss disability award, when the intoxication is not the sole cause of the injury.

The attorneys of Hill Wallack LLP stand ready to assist any employer or insurer faced with issues of Workers Compensation insurance coverage, including those posed by the intoxication of an injured employee at the time of his or her injury.

Kenneth W. Thayer, III is an associate of Hill Wallack LLP where he is a member of the Litigation Division and Workers’ Compensation Practice Group