GRSLL&B Attorney’s Persistence Spurs Introduction of Bill Changing Workers’ Compensation Law Concerning Intoxicated Employees

 On July 19, 2006, the State Supreme Court upheld the award of Workers’ Compensation benefits for a trucker hurt when driving while intoxicated in Tlumac v. High Bridge Stone.

The New Jersey Workers’ Compensation Act, N.J.S.A. 34:15-1 to -128, requires employers to compensate employees for accidental injuries “arising out of and in the course of employment.” However,  when the injury or death is the result of intoxication, benefits are not allowed.  In reaffirming the Appellate Division’s decision, the Court relied upon a 70 year old case citing a 96 year old law stating that the intoxication must be the “sole cause” of the accident. This view was expressed by the Court of Errors and Appeals in Patton v.American Oil Co., 13 N.J. Misc. 825 (Sup.Ct. 1935), denial of compensation after retrial sustained, 15 N.J. Misc. 564 (Sup. Ct. 1937).  In that case, the testimony indicated that the workman “was intoxicated and that such intoxication was the sole and proximate cause of the accident.”  Ultimately it was held that compensation should be denied.  

In the Tlumac case, on February 28, 2004, the petitioner installed shingles on the roof of his home. The next day, he consumed beer while continuing to work on the roof. While the petitioner did not recall how much he drank that day,  his wife testified that he usually consumed about ten beers on a weekend day. After completing the work on the roof, petitioner showered and had a beer. He did not eat dinner before going to bed at around 8:00 p.m. He awoke at around 2:15 a.m., had coffee, made a sandwich for lunch and left for work.   After inspecting his truck, he left with a load of 77,000 pounds of belgian block for Virginia at 3:30 a.m.  Approximately 30 minutes later, the accident occurred. The investigating police officer noted in his report that the tractor-trailer traveled 180 feet off the road, contacted the curb for eighty feet, jumped the curb and traveled sixty-six feet on the dirt shoulder, hit and rubbed against the guardrail for 247 feet, struck the front bumper of a parked truck, and hit a utility pole before resting against a tree. At the trial, an expert for the respondent employer testified that based on the blood samples taken from the petitioner several hours later at the hospital, his blood alcohol level would have been between .10 and .18.  The legal limit for a drunk driving conviction is .08.  Tlumac was charged, and plead guilty to driving while intoxicated.

In the Court’s ruling, it was noted that the petitioner had worked for 12 straight days before he had the weekend off, and was also caring for his wife, who had recently suffered a fractured hip.  Under the Court’s rationale, there was sufficient credible evidence in this case for the compensation judge to conclude that intoxication was not the sole cause of the employee’s accident.

Bob Golden, attorney for the respondent was outraged. “ This is a guy who was home all weekend and he came to work drunk.  In my view, the Legislature needs to take a very strong look at this”, said Golden, who called the ruling "an unfortunate extension of a trend that relieves individuals for responsibility for their own actions."  He indicated that this could be a pyrrhic victory, since Justice Wallace acknowledged that the rule "may no longer comport with current policies aimed at deterring the dangers of drinking and driving. Nevertheless, any change in that interpretation must come from the Legislature."

After the petitioner was successful at the trial level and the Appellate Division, it was requested that the Supreme Court review this matter.  It too decided unanimously to uphold the trial court’s ruling that the petitioner was entitled to benefits under Workers’ Compensation.  

As a direct result of the persistence in litigating this case by the Respondent counsel, Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan, legislation has now been introduced in both houses of the New Jersey State Legislature concerning the awarding of Workers’ Compensation benefits in cases where intoxication played a contributing role in the injury, with 13 co-sponsors. (S2166; A3481) The significant changes to the current law being sought are that intoxication need only be a material contributing factor to the injury or death rather than the sole cause, and a shifting of the burden of proof to the employee by presuming that the intoxication was the cause, thus barring receipt of Workers’ Compensation benefits.

In summary, while losing the battle in this case, hopefully the war will be won for employers, and society as a whole, in recognizing that there should be no “award” of benefits for one who is injured when driving while intoxicated at work.

-Daniel L. Maisel, Esq.