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At least once a week this practitioner gets a call from an employer or adjuster asking whether New Jersey has a defense to accidents where the employee is found to be heavily intoxicated or under the influence of illegal substances. The response is always the same: yes, there is technically a defense, but unfortunately the way the statute is written, it is almost impossible for an employer to prevail.
New Jersey is one of a few states in which the employer must prove that intoxication or the use of controlled dangerous substances is the sole cause of the injury. It is not enough for an employer to prove that intoxication is the main cause or a substantial cause: it must be the sole proximate cause. If any other factor is involved, the employer loses. In most states employers win if they can prove intoxication was a substantial or contributing cause. How weak is the New Jersey defense? There is really only one published case in the last 50 years in which an employer has won on the intoxication defense in New Jersey!
If the employee can show that some other factor besides intoxication contributed in some way to the injury – like bad weather, a slippery floor, exhaustion from working too hard – the employer’s defense fails. Frankly, it is almost impossible to exclude all other causes. That point was driven home by the New Jersey Supreme Court in Tlumac v. High Bridge Stone, 187 N.J. 567 (2006). At the end of the opinion the Supreme Court expressed its own frustration with the regrettable language contained in the New Jersey statute.
In Tlumac the employee’s wife admitted that her husband usually drank 10 beers every weekend. On the day of the accident, petitioner arose at 2:15 a.m. to begin his drive. He drove 30 miles south on Route 31 with 77,000 pounds of Belgian block in his truck and then blacked out. His tractor-trailer traveled 180 feet off the road, jumped the curb and traveled 66 feet on the shoulder, hit the guardrail and rubbed against it for 247 feet, struck a parked truck and then struck a utility pole. The officer on the scene noticed an odor of alcohol, and petitioner admitted to drinking the night before. An expert for the employer extrapolated that petitioner’s blood alcohol level was between .10 and .18 at the time of the accident, well above the legal limit.
The employer denied the claim based on intoxication being the sole cause of the accident. The Judge of Compensation, Appellate Division and the Supreme Court all ruled against the employer and in favor of the petitioner on compensability because the employer could not prove the sole cause defense. Other factors may have played a role in the accident, such as petitioner’s exhaustion from working too many hours in the days prior to the accident. He had worked over 200 hours in the prior two week period of time. He also testified to exhaustion from repairing the roof of his home the night before the accident. Justice Wallace, who wrote the decision, conceded that the New Jersey statute “may no longer comport with current policies at deterring the dangers of drinking and driving. Nevertheless, any change in that interpretation must come from the Legislature.”
Twelve years after the Tlumac decision, nothing has been done by the Legislature to address the situation that Justice Coleman addressed, namely deterring the dangers of drinking and driving. As hard as it is for employers to win on an intoxication defense, it is even harder for employers to win when illegal drugs are found in the employee’s system because it is scientifically impossible for an employer to pinpoint exactly when the illegal substances were used. Many drugs, like marijuana, remain in the system for days, if not weeks.
One must wonder what the social policy was that the Legislature was trying to promote many decades ago when the sole cause language was written into law. A cynic might conclude that the purpose was to sanction the practice of employees coming to work somewhat inebriated. The truth is that intoxicated employees not only risk injury to themselves but may also imperil the lives of others. Yet as of 2018 heavily intoxicated employees who are injured at work or those under the influence of illegal substances remain eligible for workers’ compensation, even if the use of alcohol or drugs was the major cause of the accident. The reason is that the major cause is not the same as the sole cause.
A change in the law to “substantial cause” instead of “sole cause” would benefit all New Jersey residents and would send the correct message that employees must keep alcohol and illegal substances out of the workplace. The present statute was written at a time when the two martini lunch was perhaps considered socially appropriate. But those days should be long gone.
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.