Workers’ Compensation Wage Loss Benefits Suspended Where Claimant Working and Under the Influence of Alcohol

The Commonwealth Court recently discussed the issue of an injured workers’ bad faith where she was terminated from her light duty employment after a night of drinking in the case of BJ’s Wholesale Club v. WCAB(Pearson), No. 2010 C.D. 2011 (Pa. Commw., May 10, 2012).   Claimant suffered a left foot injury while working for the Employer.  Shortly after the injury, Employer provided her with a light duty job.   On June 28, 2008, Claimant was working when her manager asked her if she had been drinking and requested she submit to an alcohol test.  Claimant had been drinking the night prior to returning to work.   The Employer’s substance abuse policy indicated that any employee who is under the influence of alcohol while on the job will be subject to disciplinary action which included termination of employment.   When her blood alcohol content was determined to be .108, she was terminated from her job.

Claimant then filed a claim petition seeking total disability wage loss benefits following her termination.   The Workers’ Compensation Judge awarded benefits, despite these facts and the Workers’ Compensation Appeal Board affirmed.   However, the Commonwealth Court reversed and denied benefits.  The Court held that Claimant’s “disability” or loss of earning power was not related to her work injury but rather related to a violation of the Employer’s substance abuse policy of which the Claimant was well aware.   The Court stated Claimant’s conduct amounted to a lack of good faith and her termination for such conduct barred her from receiving wage loss benefits.

When discussing the definition of “under the influence of alcohol”, the Court cited to the Legislature’s determination that anything over .08 constituted being “under the influence”  Claimant’s level was .108, obviously in excess of that established limit.   Secondly, the Court indicated that the WCJ found the testimony of Dr. Pieretti was credible where he testified that any person with a blood alcohol level of .108 is under the influence of alcohol and impaired.

Interestingly, it was not Claimant’s actual conduct while on the job which caused her termination.  Rather, the amount of alcohol which she imbibed the night before she was scheduled to work led to the determination that she was still under the influence when she went to work the following day.

Also, the finding of bad faith does not effect her entitlement to medical benefits arising from this work injury.

If you are receiving workers’ compensation benefits and told to return to work before you believe you are ready to, contact our office and speak to an attorney.   You need to know your rights and the law.

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