Under the Influence and Rebuttable Presumption
R. Abrams, Chief Operating Officer
purpose of this policy is to ensure BWC staff knows how to evaluate evidence
and determine a claim when the evidence includes a positive chemical test for
alcohol, a controlled substance that was not prescribed by a physician, or
policy applies to claims services staff.
of proof: The
responsibility of a party to prove or disprove a disputed fact.
of the evidence: A
standard of proof which is met when a party’s evidence on a fact indicates that
it is “more likely than not” that the fact is as the party alleges it to be.
basis for an individual of ordinary care and prudence to believe and conscientiously
entertain suspicion based on observable facts; as further defined by R.C.
4123.54(C)(2): evidence that an employee is or was using alcohol,a controlled
substance or marijuana, drawn from specific, objective facts and reasonable
inferences drawn from these facts in light of experience and training.
A conclusion as to the existence or nonexistence of a fact that is drawn when
certain evidence has been introduced and admitted as true, but that can be
contradicted by evidence to the contrary.
A. Application of
1. It is the policy of BWC
to apply rebuttable presumption and presume that intoxication, being under the
influence of a controlled substance not prescribed by a physician, or under the
influence of marijuana is the proximate cause of an injured worker ‘s (IW)
a. When the employer has
complied with R.C. 4123.54(B) as indicated in section IV.A.3 below;
b. The IW has tested
positive on a properly requested chemical test or has refused to be tested; and
c. The presumption has not
been rebutted with credible, persuasive evidence that meets the preponderance
of the evidence standard.
2. When the employer has
complied with R. C. 4123.54(B) and rebuttable presumption applies, the burden
of proof shifts to the IW to prove that the intoxication, being under the influence
of a controlled substance not prescribed by a physician, or being under the
influence of marijuana did not cause the accident.
3. It is the policy of BWC
to require the following from the employer to show compliance with R.C.
a. Positive chemical test
results or written documentation of the IW’s refusal to submit to a chemical test
following the injury to the IW;
b. Documentation showing
that the specimen collected for the chemical test was obtained within the
appropriate time frame, which is:
i. Within eight (8) hours
of injury to determine alcohol concentration levels; or
ii. Within thirty-two (32)
hours of injury to determine levels of controlled substances not prescribed by a
physician or marijuana.
c. Verification that the
employer had a written notice posted prior to the date of injury notifying
employees that the results of, or the employee’s refusal to submit to, a chemical
test may affect the employee’s eligibility for workers’ compensation benefits.
i. Such notice must be the
same size or larger than the proof of workers’ compensation coverage notice furnished
by BWC; and
ii. Must be posted in the
same location as the proof of workers’ compensation coverage notice or the
certificate of self-insurance.
d. Documentation that the
post-accident chemical test was conducted at the request of one of the
i. The employer, with
reasonable cause to suspect that the IW was intoxicated,under the influence of
a controlled substance, or under the influence of marijuana at the time of the
a) The documentation must
include a description by the employer of the facts and behavior supporting the
b) See section IV.A.5
below for a description of facts and inferences that may support reasonable
ii. A police officer
pursuant to R.C. 4511.191, Traffic Laws-Operation of Motor Vehicles and not at
the request of the employer; or
iii. A licensed physician
who is not employed by the IW’s employer and who did not conduct the test at the
request of the IW’s employer (e.g., an emergency room physician).
4. The employer’s
participation in a drug free workplace program alone is not sufficient to show
compliance with R.C. 4123.54(B).
5. Reasonable cause,
documented by the employer, may include, but is not limited to, the following
facts and inferences:
a. Observable phenomena,
such as the direct observation of:
i. Use, possession, or
distribution of alcohol, a controlled substance or marijuana;
ii. Physical symptoms of
being under the influence of alcohol, a controlled substance or marijuana, such
a) slurred speech;
b) dilated pupils;
c) odor of alcohol, a
controlled substance or marijuana;
d) changes in affect; or
e) dynamic mood swings.
b. A pattern of abnormal
c. Erratic or aberrant
d. Deteriorating work
performance that appears to be related to the use of alcohol,a controlled
substance or marijuana and not attributable to other factors. Deteriorating
work performance may be exhibited by:
i. Frequent absenteeism;
ii. Excessive tardiness; or
iii. Recurrent accidents.
e. The identification of
the IW as the focus of a criminal investigation into unauthorized possession,
use or trafficking of a controlled substance or marijuana;
f. A report of use of
alcohol, a controlled substance or marijuana provided by a reliable and
g. Repeated or flagrant
violations of the safety or work rules of the employer:
i. That are determined by
the IW’s supervisor to pose a substantial risk of physical injury or property
ii. That appear to be
related to the use of alcohol, a controlled substance or marijuana; and
iii. That do not appear
attributable to other factors.
6. It is the policy of BWC
to presume that:
a. The chemical test was conducted
at a laboratory certified by the United States Department of Health and Human
Services or a laboratory that meets or exceeds the standards of that department
for laboratory certification; and
b. Positive test results
were determined as being at a level equal to or in excess of the cutoff
concentration level for the particular substance, as provided in 49 C.F.R
c. A positive test result
for barbiturates, benzodiazepines, or methadone was at a level established by
the certified laboratory.
7. BWC will find the IW
was intoxicated/under the influence of alcohol, for purposes of this policy,
when the IW is determined to have an alcohol concentration level equal to or in
excess of the levels established in divisions (A)(1)(b) to (i) of section
4511.19 of the Revised Code.
B. For a claim that does
not meet the standards outlined above in section IV.A, it is the policy of BWC
to still consider whether the injury was proximately caused by alcohol use,use
of a controlled substance not prescribed by a physician, or use of marijuana.
1. If BWC determines that the
alcohol use,use of a controlled substance not prescribed by a physician, or use
of marijuana was the proximate cause of the injury, BWC will deny the claim.
2. BWC will consider a
positive chemical test, along with all the other evidence in a claim, in
determining the proximate cause of an injury.
BWC staff may refer to
the corresponding procedure for this policy entitled “Intoxication, Under the
Influence and Rebuttable Presumption” for further guidance.