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Proof that an employee was intoxicated at the time of his or her injury is not sufficient to defeat the claim, held a Virginia appellate court recently; the employer must also prove that the intoxication caused the accident resulting in injury. Where an employer introduced expert testimony that established that an injured employee’s blood alcohol content was most likely greater than 0.09 percent at the time the employee fell from a ladder, such evidence was sufficient to invoke the rebuttable presumption of intoxication under Va. Code Ann. § 65.2–306(B). The Commission was still within its discretion to find that the intoxication did not cause the accident and injury where evidence clearly indicated the employee had maneuvered on the ladder for several hours prior to his fall and there were no witnesses to the accident. The evidence supported the Commission’s finding that the accident was caused by the inherent dangers posed by working on ladders.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance.
See Andersen Interior Contr. v. Nimmo, 2017 Va. App. LEXIS 49 (Feb. 21, 2017)
See generally Larson’s Workers’ Compensation Law, § 36.03.
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law
For a more detailed discussion of the case, see