Nearly half of Texas employers, however, do not subscribe to state workers’ comp, and a non-subscribing employer can be sued in civil court for medical bills, lost income, and pain and suffering resulting from a work injury. To prevail and receive compensation, the injured employee must prove that the employer’s negligence was the cause of the accidental injury. An employer found even one percent liable for a work injury bears 100 percent of the responsibility for the expenses resulting from that injury. There are, however, some defenses that the employer can raise to avoid paying damages.
Potential Defenses Available to Employers
A non-subscribing employer can avoid paying damages for your work injury by providing one of several defenses:
- Your own negligence was the sole proximate cause of your injury.
- You caused your own injury by ignoring a known hazard in the workplace.
- Your injury resulted from a pre-existing condition.
- You lost your right to sue by signing a post-injury waiver.
- The actions that led to your injury were not within the scope of your employment.
- You injured yourself intentionally.
- You were intoxicated (under the influence of drugs or alcohol) at the time of your accident.
An employer hoping to raise the employee intoxication defense will generally require you to take a drug test as soon as possible after your accident. If you test positive for drugs or alcohol, your employer will claim that your intoxication, not the employer’s negligence, was the cause of your accidental injury.
Your Options If You Test Positive
If you submit to a test for intoxicating substances, any beer, wine, or liquor you consumed three to four days prior to your injury can still show up in your bloodstream long after the alcohol’s effects have worn off. Marijuana can result in a positive test up to 30 days after you’ve smoked it. Opiates and cocaine can cause you to test positive up to four days after they’ve been ingested.
A positive drug test damages your case regardless of whether you were still intoxicated at the time of your accident. A jury is apt to take a dim view of your drug or alcohol use and rule against you even if you were clearly no longer under the influence when you were injured. If you refuse to take a drug test, however, your refusal will be used by the employer as evidence that you were intoxicated; otherwise, you would have taken the test. You should, therefore, submit to the drug test requested by your employer and rely on a work injury attorney to help you convince the jury that you were not intoxicated when you were hurt.
How a Lawyer Can Help
An experienced work injury attorney can help you overcome the stigma of a positive drug test by soliciting the sworn statements or testimony of:
- Co-workers who saw you on the day of your accident and can testify that you showed no signs of intoxication
- Medical experts who can testify that intoxicating substances show up in a drug test long after the effects of the intoxicants have worn off
- Any manager or supervisor who interacted with you on the day of your accident
If you were intoxicated, your supervisor should have realized that you were and sent you home for reasons of safety and company policy. Failure to do so would be negligence on the part of the supervisor.
Your lawyer can argue that either your boss negligently overlooked your condition or you weren’t intoxicated. This strategy puts your employer in a no-win position and helps your case by making the company look bad in front of the jury. Your lawyer can also consult with your doctors to obtain evidence of your current and projected future medical expenses, calculate the value of your case, and make a reasonable demand for compensation from your employer.