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Is Forty Years A Long Enough Wait to Strengthen the Intoxication Defense?

By: Jaclyn M. Terranova, Esq.

One of the many defenses employers can raise in a workers’ compensation case is that of employee intoxication.  N.J.S.A. 34:15-7 states that when an injury or death is intentionally self-inflicted, or when it is a matter of intoxication, the employee is not entitled to compensation.  However, the intoxication defense is rarely successful in New Jersey in part because of how the statute is currently written.

New Jersey Senate Bill 1420 proposes changes to N.J.S.A. 34:15-7.  While some of the changes are cosmetic in nature, and largely address grammar or structure, the specific purpose of the bill is to address the role of the intoxication defense in workers’ compensation claims.  If passed, intoxication would be the presumed cause of an accident in which an employee was proven intoxicated. This is a drastic change from the current practice, which requires intoxication to be the sole cause of the accident to be a successful defense.

Tlumac v. High Bridge Stone and the Intoxication Defense

At present, New Jersey Courts follow the interpretation set forth in Tlumac v. High Bridge Stone.  In Tlumac, the petitioner was in a tractor-trailer accident and sought to recover benefits.  The employer asserted the intoxication defense as blood tests indicated the petitioner was likely still intoxicated from the prior evening at the time of the accident.  The Supreme Court of New Jersey held that “the statutory defense of intoxication requires that intoxication be the sole cause of the accident to bar recovery for workers’ compensation benefits.”  Tlumac v. High Bridge Stone, 298 N.J. 567 (2006).  As such, the petitioner in Tlumac was awarded benefits despite his intoxication, as other factors such as the early morning hour or his long work shifts could have contributed to the accident.

In practice, this interpretation of the statute makes it more difficult for employers to claim an intoxication defense and bar an intoxicated employee from recovery.  Currently, if an employee can present other potential contributing factors to the injury he or she will likely be awarded compensation, regardless of their blood alcohol content.

New Jersey Senate Bill 1420

Partially in response to Tlumac, as well as the case law since that time, New Jersey Senate Bill 1420 was sponsored in February 2018 by Senator Christopher J. Connors and was referred to the Senate Labor Committee.  Among other edits, the bill proposes adding a ‘Part B’ to the present statute, which would state “[i]f the employee was intoxicated when the injury or death occurred, it shall be presumed that the injury or death was caused by the intoxication and the employee shall be barred from receiving workers’ compensation.”

A Shifting of Burdens

The Court in Tlumac concluded that the New Jersey Legislature intended for benefits to be “readily and broadly available” to injured employees, and thus placed the burden on the employers to show by a preponderance of the evidence that intoxication was the sole cause of the work related injury.  This interpretation makes it nearly impossible for an employer to deny claims based on employee intoxication, because it is not the blood alcohol level which will bar compensation, but the complete lack of any other potential contributing factor.

Were New Jersey Senate Bill 1420 to be made law, the employer would no longer need to prove that intoxication was the sole cause of the accident because the statute would plainly state a presumption that the injury was caused by the intoxication.  In effect, the burden of proof would shift from the employer back to the employee.  The employer would still bear the burden of showing that the employee was intoxicated at the time of the injury.  However, once intoxication was established, the employee would now need to overcome a statutory presumption that the intoxication was the cause of the accident, instead of simply providing possible alternatives.  While this bill still leaves some room for interpretation with the court, especially as to the extent of the burden of proof and what type of evidence or situation would be required to overcome the new statutory presumption, that shift would give a greater weight to this defense.

Application of New Jersey Senate Bill 1420

As an example, a petitioner has filed a claim petition against a respondent, claiming that the employee was in a motor vehicle accident and struck a pothole, causing the vehicle to flip.  The employee petitioned the courts for workers’ compensation benefits as this accident occurred while working.  The respondent denies the matter, asserting the intoxication defense, as the employee’s blood alcohol content was .13 at the time of the accident.

Under the Tlumac test, the respondent would need to prove that the sole cause of the accident was the petitioner’s intoxication.  If the petitioner showed that the pothole was a contributing factor and was a reason for the accident, the employee would still be awarded benefits under current case law.

If New Jersey Senate Bill 1420 is enacted, the outcome of that case would shift in favor of the respondent.  As soon as the respondent established the blood alcohol content was above the legal limit, it would be presumed that the accident was a result of the petitioner’s intoxication.  The petitioner would now need to prove that their intoxication was not the cause of the accident or be barred from recovery under statute.

How Likely Is This Bill to Become a Law?

Legislative intervention has been a long time coming in regard to this provision of the workers’ compensation statute.  This specific bill, however, is extremely ambitious and, given the nature of the proposed changes, this version of the bill is unlikely to make it out of committee.  In fact, this is the second time it has been proposed in recent history, with the first attempt being in February 2016.  It did not pass then, and it is still unlikely to pass now, as labor unions strongly oppose it.

A change of this magnitude will likely be viewed as too restrictive for a system with the goal of compensating injured employees.

Middle Ground and Compromise

Given that N.J.S.A. 34:15-7 has not been updated since January of 1980, it is definitely time for a change.  However, change comes in small stages, not radical shifts.  While workers’ compensation is based on the law, a lot of this practice is about compromise.

While the statute was created to protect workers’ rights, these laws are also meant to be fair for both parties.  We are more likely to see a law pass that focuses on changing the burden, or the recovery, in small yet impactful ways.  For example, a bill proposing a bar to recovery if intoxication is a substantial cause of the accident, or a bill proposing a decrease in award if the employee was intoxicated, would be far more likely to pass than what is currently proposed.  In either case, the intoxication defense would become something far more reasonable again, instead of a pipe dream for employers to pursue.

Conclusion

New Jersey Senate Bill 1420 would create a powerful shift in how the intoxication defense is litigated in workers’ compensation, but that type of change is unlikely to be approved.  A “substantial cause” bill might be a better alternative.

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