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|RE:||Legal Actions Available to Seek Work Comp benefits in Massachusetts|
Legal Actions Available to Seek Work Comp benefits in Massachusetts
Can employee receives work comp benefits, if he suffered injuries during course of employment and, his BAC level is .792?
Client fell from a roof while welding on the second floor of a new building. He suffered serious injuries. We filed a work comp claim, and the employer is claiming that the employee (Juan) was intoxicated. He admits that he’d had a lot to drink the day before, but he claims that he had nothing that day, and he fell at about 8:36 AM, after reporting for work at 7 AM. The hospital records show a BAC (Blood Alcohol Content) of .792 at the time of his admission. Can he still receive work comp benefits? Does his BAC test bar him?
What is the standard of BAC in Massachusetts?
Standard Research Memo
- Highlighted Copies of Key Cases.
- Summaries of Key Cases.
Can employee receive work comp benefits, if he suffered injuries during course of employment and, his BAC level is .792?
Massachusetts statutes and case laws
Massachusetts workers compensation law does not define the term “intoxication”. However, certain types of conduct do preclude a successful claim for benefits and intoxication may fall within the scope of these other conditions. In workers compensation cases, it is crucial to ascertain whether intoxication was an important factor that resulted in an injury. The research will revolve around drawing an analogy from drunk driving (OWI/DUI) standards to workers compensation cases. Other precedents that may limit a claimant’s recovery will be addressed.
Mr. Dupuis' drinking did not arise in the context of the workplace. He arrived at the workplace inebriated, and therefore, I find that under Section 27, he bears the consequences of that action. It was agreed by all that both the employee's and the insurer's packet of medical and hospital records would be admitted into evidence.’ A person is ‘under the influence of alcohol’ (intoxicated) when one or more of the following are true:
- The person's reason or mental ability has been affected
- The person's judgment is impaired
- The person's emotions are visibly excited
- The person has lost control of bodily actions or motions
Statutes governing workers compensation law in Massachusetts do not define the term “intoxication”. However, a claimant’s blood-alcohol level revealed by chemical testing provides important evidence for adjudicating a claim. “Serious and willful misconduct” is much more than mere negligence or even gross or culpable negligence. It involves conduct of a quasi-criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences.
The state supreme court in Irwin v. Ware, 392 Mass. 745 (Mass. 1984) wrote:
BAC slightly higher than 0.16%, it would be expected that person would have been impaired by alcohol and that this impairment would have been a significant factor in the accident. Present Massachusetts limit is maximum BAC of .08 or higher.
We cannot say as matter of law that the board was not warranted in finding that the injury arose out of and in the course of the employment even if the deceased fell from the roof at a place twenty-three feet from the stairway. We cannot say that the board has drawn inferences, which no reasonable man could draw, and for that reason we cannot set aside its findings. Whether or not a blood alcohol test is admissible depends upon a showing of compliance with conditions as to relevancy, tracing and identification of specimen. A foundation must be laid before this type of evidence is admissible.
The employer is not required to come forward with evidence disproving all possible causes other than intoxication. The employer only needs to demonstrate that it is more probable than not that intoxication was a cause in fact of the injury.
In the case of Symonds v. 1114 Ave. of the Ams., LLC, 7 Misc. 3d 1008A (N.Y. Misc. 2005) we find:
Defendant Penava, upon whose opposition papers the other opponents of this motion rely, also provides the affidavit of its toxicologist, Jesse Bidanset, Ph.D. regarding the results of Bellevue's alcohol analysis. Dr. Bidanset, after adjusting the serum value of 105 mg/dl to its whole blood equivalent of 89 mg/dl and after making several assumptions about when the drinking started and ended and plaintiff's weight, concludes that plaintiff had to have consumed more than 3.0 ounces of pure ethanol, i.e. the equivalent of more than six standard size drinks, a drink being defined as a 12 once portion of domestic beer, 5-6 ounces of wine or 11/4 ounces of 80 proof liquor. Dr. Bidanset then, making the assumption that plaintiff ate a heavy lunch, concludes that plaintiff's blood alcohol level was greater than .07% at the time of his fall. Plaintiff, who did not remember at his deposition what he had eaten for lunch, claims for the first time in his reply papers to have eaten a sandwich and two beers. He also claims for the first time in his reply papers (to which the defendants had no opportunity to respond) that he took only a 30 minute lunch break which began "shortly after" noon. Dr. Bidanset asserts that a blood alcohol concentration (BAC) of .07-0.8 % "can" produce a significant degree of impairment of central nervous system function. He then opines to a reasonable degree of toxicological certainty that the effects of such a BAC include a difficulty in seeing clearly, uninhibited behavior willing to take risks with disregard for personal safety, deficits in balance and coordination which "would" contribute to this accident, slowed reflexes and cognitive response and impaired judgment. Dr. Bidanset states that this concentration of ethanol "would" produce central nervous system depression. Dr. Bidanset further maintains that the entries in Bellevue's chart, e.g. "under influence of alcohol,” support his conclusion. Dr. Bidanset concludes that plaintiff was intoxicated at the time of his accident. Those opposing plaintiffs' motion claim that it must be denied since there is an issue as to whether plaintiff's intoxication was the sole proximate cause of his accident.
In the present query Juan’s BAC on the day of his accident was elevated to the point where an expert could argue that Juan was intoxicated. However, this does not prove that he has had alcohol above the limits defined if Massachusetts drunk driving standards apply to industrial establishments. If not barred per se, then Juan will have an opportunity to present evidence indicating that his behavior that day did not reflect intoxication and that his blood alcohol was not a causative factor in his injury.
More than standard level (BAC 0.8) of blood alcohol content is sufficient to deny a worker’s claim for compensation in Massachusetts. Applying the settled principles of law, the court may find that an employee may be prohibited from receiving benefits if the employer proves that claimant's ability to perform his job would have been impaired by the level of alcohol in his blood based on the medical reports and based upon his actions on site.
1. Highlighted copies of Key Cases.
2. Summaries of Key case.
3. Referred Statutes.
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