Recently, I won a workers compensation jury trial on whether or not my client was intoxicated at the time of his injury. Intoxication cases are extremely difficult to win due to both the definition of intoxication and the way that the Division of Workers Compensation decides intoxication cases. There is a strong public policy in favor of maintaining a drug free workplace. However, the Texas Constitution guarantees all persons the right to seek legal remedies for injuries that were not their fault. This is the first of a few posts I plan on making which point out that in our rush to crack down on drugs, the Division and even the courts of the State of Texas have failed to follow the law.

The definition of Intoxication found in the Texas Labor Code, reads as follows:


(a)  In this subtitle, “intoxication” means the state of:

(1)  having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code; or

(2)  not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of:

(A)  an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code;

(B)  a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code;

(C)  a dangerous drug, as defined by Section 483.001, Health and Safety Code;

(D)  an abusable glue or aerosol paint, as defined by Section 485.001, Health and Safety Code; or

(E)  any similar substance, the use of which is regulated under state law.

(b)  The term “intoxication” does not include the loss of normal use of mental or physical faculties resulting from the introduction into the body of a substance:

(1)  taken under and in accordance with a prescription written for the employee by the employee’s doctor; or

(2)  listed under Subsection (a) by inhalation or absorption incidental to the employee’s work.

(c)  On the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.

It is this last paragraph, in particular the words I have bolded, “rebuttable presumption,” that I want to address. According to the Division of Workers Compensation, rebuttable presumption means that the burden of proof shifts to the claimant to prove that they are not intoxicated at the time of injury. This creates a significant hurdle for the injured worker. Now, before you rush to judgment and say that the workers gets what they deserve for using drugs, keep this in mind: the injured worker loses if they test positive for drugs whether or not the drugs had anything to do with the injury or not! For instance, we won a case where a husband and father of three kids was killed in an automobile collision on the job. However, he had been feeling sick that morning and had taken one of his wife’s prescription medications to help him feel better. The collision was not his fault, yet initially, his widow was denied benefits since he had tested positive for a prescription narcotic for which he didn’t have a prescription. In this system, the worker loses every time unless he or she can afford to hire an expert witness to say the workers wasn’t intoxicated at the time of injury.

Almost always, the injured worker will lose a case where the carrier is claiming intoxication unless the claimant can hire an expert to defeat the intoxication claim. This is because when the Division of Workers Compensation was interpreting the Labor Code, they read this “rebuttable presumption” to mean a shifting of the burden of proof. As a result, they require the injured workers to proof that they were not intoxicated at the time of injury. This is extremely difficult to do without an expert witness. Expert witnesses don’t come cheaply. Thus, for an injured worker who is presumed to be intoxicated to prevail on their claim, they must go to the burden of hiring an expert witness.

In future posts, I’ll explain why this reasoning by Workers Comp is wrong. I’ll also explain how the current state of the law is unconstitutional. Meanwhile, if you’ve been injured on the job and the carrier is claiming you were intoxicated, call a lawyer for help, immediately.