Employers who don’t drug or alcohol test cannot prove that an employee’s injury was caused by his intoxication if a drug test is not offered.
In the case of McKinley v. Klein Steel, Inc., No. 09-CA-930 (La.Ct. App. 03.23.10), the Louisiana Court of Appeal upheld the award of temporary total disability benefits, attorney’s fees and penalties.

The summary: while carrying a stair railing at work, the employee stumbled and hit his head. The employer sent him to a nearby hospital where he was treated for a scalp laceration and released without a drug test and the employer made no effort to have him tested. He later underwent two spinal surgeries as a result of the accident. The employer’s insurer refused to pay workers’ compensation benefits, claiming the employee was intoxicated at the time of the accident, that he refused a drug test and provided false information to the hospital. The Court of Appeals upheld the award of benefits, finding that the employer failed to reasonably controvert the claim. It also awarded the employee penalties and attorney’s fees.

The court explained that a presumtion of intoxication arises when an employee affirmatively refuses a drug test. But because the hospital never offered a drug test, and one was never required by the employer, there was no opportunity for the employee to refuse one, nor was any other evidence of intoxication presented. The court also rejected the contention that the employee gave false information to the hospital to prevent them from verifying his workers’ compensation status. The employee correctly identified his employer to hospital staff but gave the incorrect contact name and number for the employer, being unaware that the individual no longer worked for the employer. Source: www.riskandinsurance.com

This court case emphasizes how important it is to have a drug testing policy which also includes post accident testing. If the employer could prove the employee was in fact intoxicated, they would have saved a lot of money.