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Employer’s Failure to Properly Investigate Claims Bars Defense of Employee’s Intoxication

On Behalf of | Mar 6, 2018 | Workers' Compensation Case Law |

If a worker is injured and files a claim for Georgia workers’ compensation benefits, the employer only has a certain amount of time to investigate the claim and contest compensability. In a recent case, an employer was barred from raising a defense that its employee was intoxicated at the time of his injury because it failed to diligently investigate the claim within the allotted time period.

In that case, the employee fell while emptying garbage from a dumpster while he was working at a fish market. He claimed later that he slipped on a piece of fish. The employer was told about the accident that day, but he did not report the accident to his workers’ compensation insurance carrier. The employee fractured his hip, and due to multiple complications he ended up having five surgeries.

The employee filed a claim for workers’ compensation benefits about nine months after the injury, which was the insurance carrier’s first notice of the injury. The employer paid but continued to investigate the claim during the following 120 days it had to do so. But it was not until almost six months after it was notified of the injury that the employer denied that the injury was compensable. The employer claimed that the injury was not compensable because the injury was due to the employee’s intoxication at the time of the injury.


The employee argued that the employer had waived its right to deny compensability under the state’s 120-day rule because it failed to assert the defense within the allotted 120 days after it was notified. The employer argued that it was unable to discover the relevant facts within the 120 days and therefore was still able to assert its defense. The employer explained that it began investigating the claim by requesting records from the hospital, but it could not do so without a signed release from the employee. The employer then requested a signed release, and the employee eventually signed the release about a month and a half later, but the employee did not check off the box that would have allowed the hospital to release information regarding alcoholism or alcohol abuse.

The employer then received medical records from the hospital, but the records were redacted and did not include lab reports or test results, and the hospital refused to produce an unredacted version. The employer also tried to depose the employee three times, but the employee did not attend due to his hospitalizations. The employee was finally deposed after the 120-day deadline had passed and admitted to a history of drinking every day, but he said that he was not intoxicated at the time of the injury. The employer claimed that it was not until after the 120-day deadline had passed that the employee’s co-worker said that he thought the employee was intoxicated when he fell.

The Court’s Decision

On appeal, the court found that the employer did waive its right to contest compensability. The court reasoned that the employer did not explain why it did not contact the employee’s co-worker, who was a witness, immediately before and after the accident, why the employer did not compel the employee to attend a deposition at the hospital, or why it did not compel the production of the hospital records. Therefore, the court found the employer waived its right to deny compensability because it did not do so within the 120-day period required.

Contesting a Claim in Georgia

Under Georgia Code 34-9-221, if an employer pays compensation without an award, it can contest the right to compensation within 60 days of the due date of the first payment of compensation. An employer can also challenge the compensability of a claim based on a change in condition or upon newly discovered evidence.

Contact a Workers’ Compensation Attorney

If you have been injured on the job, you may be entitled to workers’ compensation benefits. The Georgia law office of J. Franklin Burns, P.C. has decades of experience in workers’ compensation claims and provides clients with quality legal representation and responsive client service. Our Atlanta workers’ compensation attorneys are authorities on Georgia’s workers’ compensation law, and as former insurance defense attorneys, we understand the other side’s tactics. For a free consultation, call us at 404-920-4708 or contact us through our online form.