In a previous post, I gave an overview of the problem with the state of the intoxication defense in workers’ compensation law in Texas–that it prevents people from recovery, even when their injury had nothing to do with testing positive for drugs. Again, I want to stress that everyone wants to maintain a drug free workplace. I have lost two family members in incidents caused by a drunk driver — a cousin and an uncle — in separate events. So, I tend to take a hard view towards injuries caused by intoxication. But that doesn’t mean I think insurance carriers should be excused from covering injuries that they have legally contracted to cover.
Currently, the Division of Workers’ Compensation takes the position that the rebuttable presumption shifts the burden of proof in a workers compensation case. This is contrary to the law of rebuttable presumptions found in virtually every other legal context. In fact, it is contrary to the law as set forth by the Texas Supreme Court.