Drinking on the job hardly ever pays off and using any intoxicating substance at work can lead to the loss of workers’ compensation benefits if the injury proves to be caused by such an activity. In the context of a claim petition, the employee bears the burden of proving that they sustained a work-related injury in the course and scope of employment. If an employer wants to assert the intoxication defense, it must plead this in its answer to the employee’s claim petition. The Pennsylvania Workers’ Compensation Act defines the intoxication defense as follows: “In cases where the injury or death is caused by intoxication, no compensation shall be paid if the injury or death would not have occurred but for the employee’s intoxication, but the burden of proof of such fact shall be upon the employer.” See 77 Pa. Stat. Ann. Section 431.

To support its burden of proof, an employer must submit evidence to establish a viable defense. In this regard, testing to substantiate the use of an intoxicating substance will be necessary. While some tests only yield positive results for the presence of a substance, the best evidence is testing that shows blood concentration. Tests with blood concentration confirm the amount of a substance, better permitting the workers’ compensation judge to determine that the substance caused impairment. To explain the significance of blood testing results, the employer will also need to present a toxicologist to provide testimony to establish the efficacy of the particular blood test. Further, the toxicologist must offer an expert opinion on the impact of particular blood concentrations and how the impairment affects an individual’s functional capabilities. Expert testimony from a toxicologist will be essential for an employer to satisfy the ”but for” requirement of the affirmative defense. The employee may also offer counter toxicology evidence to refute such opinions.

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