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Commission Proposes Rules Regarding Intoxication Defense

By Christopher S. Crawford

The Illinois Workers’ Compensation Commission recently filed proposed rules in connection with the new intoxication defense under the Illinois Workers’ Compensation Act. The rules speak to the handling of blood and urine samples. The rules model U.S. Department of Transportation regulations. Appropriate chain of custody must be observed. The employee must be notified of any planned testing in a timely manner. Any devices used must be tested on a regular basis. Given the proposed rules, it is clear that employers will need to observe strict rules in testing their employees when drugs or alcohol are believed to have played a role in an accident.

The proposed rules do not speak as to how the intoxication defense is being applied. I have been asked whether the intoxication defense should be used in defense of simple shoulder or back strains. The Act provides that there shall be a rebuttal of presumption that intoxication was the proximate cause of an injury if a person’s blood alcohol level is greater than .08 or if blood samples indicates intoxication as a result of taking an illicit drug. If intoxication is the proximate cause of the injury, then the case is not compensable. The Act does not make any distinction between whether the injury was serious or minor. Therefore, I am of the opinion that intoxication should be used as a defense regardless of the severity of the injury.

Originally published in the Summer 2012 edition of Quinn Quarterly.