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One of the most anachronistic aspects of New Jersey workers’ compensation law is that employers pay workers’ compensation benefits even when intoxication is a substantial cause of injury. In Diaz v. National Retail Transportation, Inc., A-3927-14T2 (App. Div. November 9, 2016), Antonio Diaz was injured moving a heavy lift which fell over on him. He admitted that prior to work on January 28, 2014, he drank at least two eight-ounce glasses of half whisky and half ice and water. Respondent’s toxicologist testified at trial that petitioner had a blood alcohol level of at least .173 percent. Had petitioner been driving, that percentage would have been more than double the legal limit.
Respondent denied the workers’ compensation claim on the basis that petitioner’s intoxication was the cause of the injury based on the expert testimony of respondent’s toxicologist. Petitioner argued that there was another factor which contributed to the injury, namely a flat tire on the lift. He said that the lift fell over when it “tilted to one side at the same moment” that he was pulling the lift. He noted that one of the tires on the lift was flat.
Respondent produced a forensic engineering expert, who testified that “a flat tire didn’t contribute in any way to this accident.” The expert did concede that a flat tire on the lift could have caused the lift to tilt to one side or the other. The expert conceded that if someone pulled the lift backwards and it had a flat tire, the lift could fall backwards “cockeyed.” The expert said, however, that the lift with a flat tire would tilt only a very small amount, only the one inch that the equipment is off the ground.
Petitioner did not offer expert testimony. Instead, petitioner filed a motion to dismiss the intoxication defense on the basis that under N.J.S.A. 34:15-7, respondent must prove that intoxication is the sole cause in order to defeat a claim. In this case the Judge of Compensation believed that both the petitioner’s intoxication and the flat tire contributed to the cause. Therefore the intoxication was not the sole cause, and petitioner prevailed.
Respondent appealed the dismissal of its intoxication defense. The Appellate Division affirmed the dismissal of the intoxication defense on the grounds that respondent failed to prove that intoxication alone caused the accident. Even if the flat tire contributed in just a small degree, that was enough to permit petitioner to recover workers’ compensation benefits.
The case underscores the onerous burden that employers must meet in New Jersey to defeat a workers’ compensation claim on the intoxication defense. In most states, if intoxication is found to be a substantial cause, that is enough to defeat the claim. In some states, merely a contributory case is enough. But in New Jersey the legislature requires the employer to prove that there was no other factor which contributed to the happening of the accident. Sole cause means sole cause, which is why there have only been a couple of reported cases over many decades where the intoxication defense succeeded.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at firstname.lastname@example.org.