What Do You Think?
Kentucky employers should think twice before trying to avoid paying a claim merely based on alcohol intoxication. A case involving a road safety worker who had alcohol in his blood when he was injured crossing a street is a case in point.
The claimant liked a beer now and then – six a day, to be exact. But that didn’t keep him from setting up safety zones to safeguard road workers on traffic-filled streets. One day while working on a busy street in 2023, he crossed Dixie Highway to go to a convenience store. Returning from the store, the claimant looked both ways, he said. Still, a speeding driver struck and severely injured him.
The company denied the claim. It pointed out that the hospital found alcohol in his blood after the accident at a level of 47 mg/dL, which would have made him mildly impaired. Safety Zone had a doctor review the hospital records. The doctor said the claimant’s blood alcohol level was likely 56 to 68 mg/dL at the time of the accident. That would have moderately impaired his judgment and ability to react, the doctor said.
An ALJ and the Workers’ Compensation Board found the claim compensable. Safety Zone appealed, arguing that the claimant’s intoxication caused the accident. It cited KRS 342.610(4), which limits an employer’s liability if an employee voluntarily consumes an illegal intoxicant.
In Kentucky, up until 2018, there was a presumption under KRS 342.610(4) that if an employee voluntarily takes a substance that tends to cause intoxication, the intoxication caused the injury.
The legislature changed the law in 2018. The new rule is that if an employee takes an illegal, non-prescribed substance or a legal substance in excess of prescribed amounts, it’s presumed that this caused his injury.
Could the employer avoid the claim based on claimant’s blood alcohol level?
A. No. The law in effect in 2023 didn’t address alcohol.
B. Yes. He was impaired by alcohol at the time.
If you selected A, you agreed with the court in Safe Zone v. Perry, No. 2024-CA-1299-WC (Ky. Ct. App. 03/06/26, unpublished), which found the current law inapplicable.
The court pointed out that the change in the law meant that an employer could no longer avoid liability merely based on the use of an intoxicating substance. Instead, it must be an illegal, non-prescribed substance or a prescribed substance used in excess of prescribed amounts.
“Alcohol is not an illegal, nonprescribed substance, nor is it a prescribed substance,” the court said.
The employer’s argument that the statute was absurd didn’t help its case. The court pointed out that the law had been around for eight years and the legislature had not revised it. The court, for its part, had no power to alter the rule. Further, no other provision in the statute addressed intoxication as a defense to a worker’s compensation claim.
As a result, Safe Zone could not escape the claim by relying on the claimant’s alleged alcohol intoxication The court affirmed the compensability of the claim.
