Issue link: http://www.e-digitaleditions.com/i/83215
3. 4. 5. 6. The employee's intoxication; The employee's willful failure or refusal to use a safety appliance or perform a duty required by statute; The employee's willful breach of any reasonable safety rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee; or The employee's use of a nonprescribed controlled substance identified as such in Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1. In considering this defense, there are a few key facts of which you must be mindful. a) Virginia Workers' Compensation Commission Rule 1.10 requires the employer to give the employee notice of its intent to rely upon a willful misconduct defense under Section 65.2-306 of no less than 15 days prior to the hearing. This notice must also be filed with the Commission in the same timeframe. The notice must set forth the specific act relied upon as showing willful misconduct (i.e. it is not enough to simply state "the injury was caused by employee's willful misconduct"). b) It is also key in raising this defense to prove that the alleged offense (e.g. intoxication, misconduct, or violation of a statute) was a cause of the injury. Absent proof that the injury was caused by the alleged offense, the defense will fail. c) If dealing with an intoxication defense, steps must be taken immediately to preserve evidence. There is a presumption of intoxication created by Virginia Code Section 65.2-306 in certain factual situations. The testing to prove this, however, must be conducted by a Substance Abuse and Mental Health Services Administration (SAMHSA) certified laboratory if illegal drugs are at issue as opposed to alcohol. We encourage you to call counsel immediately upon learning that an employee sustained injury when intoxicated, or if intoxication is suspected. Many hospitals routinely destroy blood and alcohol samples and are not SAMHSA certified. Those samples must be preserved in order to mount this defense and a Motion to Preserve the Evidence must be filed with the Commission to accomplish this in many cases.