Often, an employer will assert that it should not have to pay Georgia workers’ compensation benefits because an injury occurred as a result of the injured worker’s willful misconduct. Our previous blog posts in this series have provided an overview of the willful misconduct defense and discussed the specific defense of failure to use a safety appliance. In this blog, we will discuss a third type of willful misconduct – intoxication.
Drug and Alcohol Testing After a Work Injury
Whenever a work injury occurs in Georgia, most employers will send you to a medical clinic for evaluation and treatment. The medical staff will almost always perform drug and alcohol testing. This is done because the law in Georgia allows employers to deny benefits when they can prove you are intoxicated. In fact, it is important for you to know that the refusal to submit to a drug test can create a presumption that a work injury was caused by your drug or alcohol use. So, if you do not take the test when asked, you may have to prove that you were not intoxicated.
Proving an Intoxication Defense
If you take the test and the results show drugs or alcohol in your system, it may create a presumption that your injury was caused by alcohol or drug use. However, the employer has to meet some specific requirements to establish this presumption. First, the testing must actually done within a certain time of the accident occurring. Second, the test must show an alcohol level above .08 or the presence of marijuana or another improperly used controlled substance.
Proving Intoxication Did Not Cause Your Work Injury
What happens if the presumption is established? It is important to understand that this presumption is “rebuttable”. That means that it is not the end of your case. You can have a hearing with a Georgia workers’ compensation judge to determine if your injury actually was caused by drug or alcohol use. If you hire an attorney and request a hearing, your employer will have the burden of proving its defense in court.
How An Attorney Can Help
Often, an attorney can help you prove that there was not drugs or alcohol in your system or that they did not cause your injury. You can get a free consultation with one of our workers’ compensation attorneys by calling the phone number or completing the “Need Help” form on the right of this page. Also, be on the lookout for our next blog post in this series where we discuss affirmative defenses associated with injuries arising from the attempt to injure yourself or others.
Jason Perkins is an attorney who specializes in representing injured workers. He regularly blogs about Georgia’s workers’ compensation system and issues that are important to injured workers and their families.
You can subscribe to his Georgia Workers Compensation channel on YouTube.