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 marijuana.
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
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
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
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:
eight (8) hours of injury to determine alcohol concentration levels; or
thirty-two (32) hours of injury to determine levels of controlled substances
not prescribed by a physician or marijuana.
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’
must be the same size or larger than the proof of workers’ compensation
coverage notice furnished by BWC; and
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
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 injury;
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 cause.
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:
possession, or distribution of alcohol, a controlled substance or marijuana;
symptoms of being under the influence of alcohol, a controlled substance or
marijuana, such as:
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
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:
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;
of use of alcohol, a controlled substance or marijuana provided by a reliable
and credible source;
g. Repeated or flagrant
violations of the safety or work rules of the employer:
determined by the IW’s supervisor to pose a substantial risk of physical injury
or property damage; and
appear to be related to the use of alcohol, a controlled substance or
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
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
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.