Rebuttable Presumption Criteria
A rebuttable presumption is created when all statutory provision conditions are verified. These conditions are:
· BWC receives a positive drug test (for a drug not prescribed for the injured worker and the drug is one specified in the law) or alcohol test or notice that the employee has refused to submit to a drug or alcohol test;
· BWC confirms that specimen collection for the test was obtained within the appropriate time frame (eight (8) hours of time of injury for alcohol, and 32 hours of time of injury for drugs).
The employer verifies that written notice was properly posted in the proximity of the employer’s semi-annual certificate of coverage (most commonly verified with a written statement or affidavit from the employer), which advises employees the results of a positive chemical test or the refusal to submit to a test, may result in the employee’s ineligibility for workers’ compensation benefits. A current certification of coverage must be posted prior to the time of injury for rebuttable presumption to be triggered (although Public Employers do not receive a certificate of coverage, BWC did provide these employers with a notice); and
· The employer documents any of the following to justify post-accident testing occurring: reasonable cause, the ordering of the test by a police officer pursuant to 4511.19 of the Revised Code and/or the ordering of the test by a physician not employed by the employee’s employer.
Without confirmation of these conditions, rebuttable presumption shall not be considered by BWC. In claims where rebuttable presumption has not been documented, the standard is that the burden is on the party alleging that intoxication or under the influence of a non-prescribed controlled substance caused the injury.