Page 19 - WorkersCompensationGuide

You may have been negligent, but the accident would nonetheless be
compensable.

§3.3 Failure to Use a Safety Device
In some instances, the failure to use a safety device may prevent
an employee from receiving workers’ compensation benefits. For an

employer to prevail under this defense, the employer must show: (1) the
employer provided a safety device or appliance; (2) the device or
appliance was accessible to the employee; (3) the employee was aware of

the availability of the device or appliance; (4) the employee was
instructed to use the device or appliance; (5) the employee knew of the

danger of failing to use the safety device or appliance; (6) the employee
willfully refused to use the appliance or device rather than simply neglect
to do so or fail to do so because of inadvertence; and (7) an emergency

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situation warranted use of the appliance or device.
§3.4 Intoxication
Under Georgia law, an employee may be denied workers’
compensation benefits if the employee (a) improperly ingested alcohol,

marijuana, or a controlled substance; (b) causing intoxication; (c) at the
time of the accident; and (d) the accident was proximately caused by the

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employee’s intoxication. If a chemical analysis of an employee’s
blood, urine, breath, or other bodily substance shows an alcohol content
of .08 grams or greater, there is a rebuttable presumption that the

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accident and injury were caused by intoxication. If a chemical analysis

38 See Liberty Mutual Ins. Co. v. Perry, 53 Ga. App. 527 (1936). See also
Herman v. Aeta Cas. & Sur. Co., 71 Ga. App. 464 (1944).
39 See O.C.G.A. §34-9-17.
40 See O.C.G.A. §34-9-17(b)(1).
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