Generally speaking, when an employee in Pennsylvania is injured while performing the duties of his or her job, the employee is entitled to PA workers’ compensation benefits. One of the exceptions to this rule, however, is when “the injury or death would not have occurred but for the employe’s intoxication.” This is one of the “affirmative defenses” available to a PA workers’ comp insurance carrier. The defendant bears the burden to prove that the intoxication caused the injury.
Recently, the Commonwealth Court of Pennsylvania dealt with whether the defendant’s medical expert had to actually state that the injury would not have occurred “but for” the intoxication. In Thomas Lindstrom Co., Inc. v. Workers’ Compensation Appeal Board (Braun), the employee fell off a steel beam, six to eight inches wide, and suffered very serious injuries, including severe head trauma.
A Notice of Temporary Compensation Payable (TNCP) was issued, and workers’ comp benefits were started. However, when lab results showed that the injured worker had a blood alcohol level of around .28 at the hospital (Far beyond the .08 level which constitutes drunken driving in PA), the claim was then denied by issuance of a Notice of Denial (NCD).
Claimant filed a Claim Petition, for the injury itself, and a Petition to Reinstate, alleging the TNCP was not revoked in a timely fashion. The parties agreed that the work injury happened, and that the injured worker was totally disabled as a result of the injury. Only two issues remained for decision: whether the claim was barred due to intoxication, and whether the revocation of the TNCP, and the issuance of the NCD, was timely.
The Workers’ Compensation Judge (WCJ) credited the testimony of defendant’s medical expert, who stated, “without question, that this person was severely intoxicated by alcohol and that level of alcohol was a major and very substantial contributing factor to his unfortunate accident.” Based on this testimony, the WCJ denied the Claim Petition. The Petition to Reinstate was also denied, as the WCJ found the revocation timely.
On appeal, the Workers’ Compensation Appeal Board (WCAB) agreed the revocation of the TNCP was timely (and that the Petition to Reinstate was properly denied), but reversed with regard to the intoxication defense. The WCAB stated that the proper standard for this affirmative defense was to prove the injury would not have happened “but for” the intoxication, and defendant’s medical expert did not give this opinion.
The Commonwealth Court of Pennsylvania, however, reversed the WCAB, and agreed with the WCJ that the Claim was barred by intoxication. The Court found that, in Pennsylvania workers’ compensation cases, there has never been a need for the use of “magic words,” and that the testimony of defendant’s expert, when viewed as a whole, met the standard required to prove that the intoxication was, in fact, the cause of the injury.
As to the Petition to Reinstate, the Court affirmed the WCAB and the WCJ, finding that a denial of the Petition was appropriate. The Pennsylvania Workers’ Compensation Act requires that a TNCP must be revoked no later “than five (5) days after the last payment.” The term “last payment” though, said the Court, does not mean the date the check was received. Rather, that term means “within five days of the end of the last payment period.”
Here, the last workers’ compensation check was received by the injured worker on February 11, 2003, but the check was for the two-week period ending on February 20, 2003. Though the TNCP was revoked on February 21, 2003, more than five days after the injured worker received the last workers’ comp check, the revocation was within five days of the last day of the pay period, so the revocation and denial was timely.