Alcohol Use Does Not Bar Kentucky Workers’ Compensation Under KRS 342.610(4), and a Safety Reduction Requires Proof of Hazardous Conduct

Introduction

Safe Zone v. Donnell Perry establishes that alcohol is not among the substances covered by the current version of KRS 342.610(4). Consequently, an employee’s alcohol use—even if potentially impairing—does not invoke that statute’s presumption barring workers’ compensation liability. The Court emphasized that the General Assembly removed the former statutory language encompassing voluntary intoxication generally and replaced it with language limited to illegal, nonprescribed substances and prescribed substances taken in excess of prescribed amounts.

Donnell Perry worked for Safe Zone as a traffic-control flagger. His duties included directing traffic, placing signs and barricades, and receiving assignments through his cellphone. After obtaining his supervisor’s permission, Perry crossed Dixie Highway to buy cigarettes and a phone charger. The charger had a work-related purpose because Safe Zone communicated assignments by cellphone. While returning to the worksite, Perry was struck by a speeding vehicle operating without headlights and suffered severe injuries.

A hospital test showed an ethanol concentration of 47 mg/dL. Safe Zone argued that Perry’s claim was barred by voluntary intoxication or, alternatively, that his benefits should be reduced by fifteen percent because he allegedly violated Kentucky’s pedestrian-safety statute.

Summary of the Opinion

Administrative proceedings

The Administrative Law Judge (“ALJ”) found Perry’s injuries compensable. She rejected Safe Zone’s intoxication and safety-violation defenses, awarded temporary total disability benefits through maximum medical improvement, and awarded permanent partial disability benefits based on an eleven-percent impairment rating. She also found that Perry lacked the physical capacity to return to his pre-injury work and awarded medical benefits, but denied permanent total disability benefits.

The Workers’ Compensation Board affirmed the determinations concerning compensability, intoxication, and safety violations. It remanded only for the ALJ to explain the calculation of permanent partial disability benefits and any applicable statutory multiplier. The Court of Appeals affirmed.

Supreme Court holdings

1. KRS 342.610(4) does not encompass alcohol. Alcohol is neither an “illegal, nonprescribed substance” nor a “prescribed substance” taken in excess of prescribed amounts.
2. Courts may not restore language removed by the General Assembly. The Court could not expand the statute merely because excluding alcohol might appear unwise as a matter of policy.
3. The statutory distinction is not absurd. Legal systems may rationally treat alcohol differently from illegal drugs or prescription-drug abuse.
4. The evidence did not compel a fifteen-percent safety reduction under KRS 342.165(1). Conflicting evidence permitted the ALJ to find that Perry had not been shown to be on the highway under the influence “to a degree which renders himself a hazard” under KRS 189.570(16).

Analysis

I. Statutory interpretation of KRS 342.610(4)

Before 2018, KRS 342.610 relieved an employer from liability when an injury was proximately caused primarily by “voluntary intoxication,” incorporating the broad definition in KRS 501.010. That definition included substances knowingly introduced into the body and therefore encompassed alcohol.

The 2018 amendment removed the reference to KRS 501.010 and replaced it with more specific language. The current statute applies only when a scientifically reliable test detects:

• an illegal, nonprescribed substance; or
• a prescribed substance in excess of the prescribed amount;

and that substance could disturb mental or physical capacities. When those requirements are met, the statute creates a presumption that the substance caused the injury and that compensation liability does not apply.

The Court treated the change in language as deliberate. Alcohol does not satisfy either statutory category. Reading alcohol back into the provision would require the judiciary to add language the legislature chose not to include.

II. Plain meaning and legislative change

Safe Zone argued that the statute’s underlying purpose was to address all substances capable of impairing mental or physical capacity. The Court rejected that purpose-driven interpretation because it would disregard the qualifying words “illegal,” “nonprescribed,” and “prescribed.”

The Court applied the principle that unambiguous statutory text controls. Legislative intent is ordinarily determined from the words enacted, not from speculation about what the legislature may have intended. A court cannot insert omitted terms simply because doing so might seem fairer or more consistent with perceived policy.

The Court also noted that proposed House Bills 402 and 403 sought to amend KRS 342.610(4), but neither proposal added alcohol. Although legislative proposals were not controlling, they reinforced the Court’s insistence that any correction or expansion must come from the General Assembly.

III. The absurdity argument

Safe Zone contended that excluding alcohol while covering illegal or improperly used prescription drugs produced an absurd or arbitrary result. The Court disagreed. An absurd result must be wholly unreasonable or contrary to common sense, not merely debatable or undesirable.

The Court identified legally rational reasons for treating alcohol differently. Alcohol consumption is not unlawful by itself, whereas possession or use of illegal drugs ordinarily is. Other legal regimes, including employment law and the Americans with Disabilities Act, also distinguish alcoholism from current illegal drug use. Therefore, the distinction was not so irrational that the Court could disregard the statutory text.

IV. The fifteen-percent safety reduction

KRS 342.165(1) reduces compensation by fifteen percent when an accident is caused in any degree by an employee’s intentional failure to use a safety appliance or obey a lawful and reasonable safety order or regulation. Safe Zone relied on KRS 189.570(16), which prohibits a pedestrian from being on a highway while under the influence of alcohol to a degree that renders the person a hazard.

Safe Zone bore the burden of proving this affirmative defense. The evidence did not compel a finding in its favor:

• Perry’s measured alcohol level was 47 mg/dL, below the 80 mg/dL driving limit, although the driving limit did not itself determine whether he was a hazardous pedestrian.
• There was no evidence that Perry consumed alcohol during the workday.
• Perry wore required reflective protective clothing.
• He testified that he looked for traffic and saw no approaching vehicle.
• The striking vehicle was operating without headlights.
• The police report described the driver as inattentive and speeding approximately ten to fifteen miles per hour above the posted limit.
• The responding officer did not identify intoxication or hazardous behavior by Perry as a contributing factor.

Dr. Daniel Wolens estimated that Perry’s alcohol level at the time of the accident could have been higher and within a range associated with impairment. Nevertheless, the ALJ was entitled to weigh that opinion against the remaining evidence. Because a reasonable fact-finder could reject Safe Zone’s position, the evidence was not legally compelling.

The Court therefore did not hold that alcohol can never support a safety reduction. Rather, it held that Safe Zone failed to prove the required hazardous conduct and causation on this record.

Precedents Cited

Standards of review and the ALJ’s fact-finding authority

Lexington Fayette Urb. Cnty. Gov't v. Gosper

Established that legal questions and the application of law to facts receive de novo review, while the ALJ has broad authority to determine witness credibility and evidentiary weight.

Letcher Cnty. Bd. of Educ. v. Hall

Defined a clearly erroneous factual finding as one that is unreasonable under the evidence presented.

Special Fund v. Francis

Distinguished appellate burdens depending on which party prevailed before the fact-finder. A party that bore the burden of proof and lost must show that the evidence compelled a favorable finding, not merely that evidence could have supported one.

Whittaker v. Rowland

Confirmed that substantial evidence supporting the ALJ’s decision requires affirmance.

Bowerman v. Black Equip. Co.

Explained that appellate courts may not second-guess an ALJ’s discretionary credibility and evidentiary determinations absent an abuse of discretion.

Vessels ex rel. Vessels v. Brown-Forman Distillers Corp.

Recognized the constitutional right to appeal a final Court of Appeals decision in a workers’ compensation proceeding to the Supreme Court of Kentucky.

W. Baptist Hosp. v. Kelly

Limited Supreme Court workers’ compensation review principally to novel statutory questions, reconsideration of precedent, or constitutional issues. The Court does not simply “third guess” the Board and Court of Appeals.

Earlier interpretations of the amended intoxication statute

Viars v. Cumberland Millwork & Supply, Inc.

An unpublished Court of Appeals decision observing that the amended KRS 342.610(4) appeared to omit alcohol.

MMJ Masonry, Inc. v. Silva

An unpublished Court of Appeals decision holding that alcohol falls outside KRS 342.610(4) because it is neither prescribed nor illegal. The Supreme Court expressly adopted its reasoning, transforming that interpretation into published, statewide Supreme Court precedent.

Safe Zone v. Perry

The Court of Appeals decision under review applied MMJ Masonry, Inc. v. Silva and concluded that alcohol was excluded from the statute. The Supreme Court adopted that analysis as its own.

Rules of statutory construction

City of Somerset v. Bell

Applied the presumption that a material change in statutory language is intentional and designed to change the law.

Eversole v. Eversole

Provided the underlying rule quoted in City of Somerset v. Bell: amended language is not presumed to result from legislative oversight or inadvertence.

Lee v. Dept. of Corrections

Held that courts cannot insert language into an unambiguous statute, even if the addition might appear just or desirable.

Revenue Cabinet v. O'Daniel

Emphasized that plain statutory meaning is presumed to express legislative intent and may be disregarded only to avoid injustice or a ridiculous result.

Bailey v. Reeves

Characterized an absurd statutory result as a wholly unreasonable conclusion.

Hill v. Thompson

Added that an absurd result is one contrary to general common sense.

Rational distinctions between alcohol and illegal drugs

State v. Steimel

Acknowledged that distinguishing alcohol from other intoxicants may initially appear to be a needless refinement.

People v. Ritchie

Supplied the “needless refinement” language quoted through State v. Steimel.

Copeland v. Philadelphia Police Dep't

Supported the rationality of treating illegal drugs more severely because their possession or use is itself unlawful, unlike alcohol consumption.

Mararri v. WCI Steel, Inc.

Illustrated that the Americans with Disabilities Act treats alcoholism differently from current illegal drug use.

Cameron v. Beshear

Reinforced that the wisdom of legislative policy is for the legislature, not the judiciary, to decide.

Safety penalties and compelling evidence

Apex Min. v. Blankenship

Explained that KRS 342.165 promotes workplace safety by encouraging employers and employees to follow safety rules.

Whittaker v. Hardin

Placed the burden of proving the statutory safety defense on the party seeking a reduction of benefits.

Wolf Creek Collieries v. Crum

Required an unsuccessful party bearing the burden of proof to show that the evidence compelled a different result.

REO Mechanical v. Barnes

Defined compelling evidence as evidence so overwhelming that no reasonable person could reach the ALJ’s conclusion.

Complex Concepts Simplified

Rebuttable statutory presumption

A legal assumption that applies once specified facts are proved. Under KRS 342.610(4), qualifying drug-test evidence creates a presumption that the substance caused the injury. The presumption was never triggered here because alcohol is not a qualifying substance.

De novo review

The appellate court independently decides legal questions without deferring to the lower tribunal’s interpretation.

Clearly erroneous

A factual finding is clearly erroneous only when it is unreasonable in light of the evidence.

Substantial evidence

Evidence sufficient to permit a reasonable fact-finder to reach the challenged conclusion.

Compelling evidence

Evidence so overwhelming that no reasonable fact-finder could decide otherwise. This is a more demanding standard than showing that contrary evidence exists.

Affirmative defense

A defense that the employer must prove, such as a claimed safety violation justifying a reduction of benefits.

Maximum medical improvement (“MMI”)

The point at which a worker’s condition has stabilized and further significant recovery is not reasonably expected.

TTD, PPD, and PTD

TTD is temporary total disability; PPD is permanent partial disability; and PTD is permanent total disability.

Impact

The decision supplies binding statewide authority on an issue previously addressed only in unpublished Court of Appeals opinions. Kentucky employers may no longer rely on KRS 342.610(4) to bar compensation solely because an injured employee had alcohol in the employee’s system.

The ruling does not make alcohol irrelevant in every workers’ compensation dispute. Evidence of alcohol use may still bear on factual causation or a properly supported safety-violation defense. However, an employer must prove the elements of the applicable defense; alcohol detection alone is insufficient.

The opinion also has broader significance for statutory interpretation. When the General Assembly replaces broad language with specific categories, courts must respect those categories even when the resulting policy appears questionable. Any restoration of alcohol to KRS 342.610 must come through legislation.

Conclusion

Safe Zone v. Donnell Perry holds that the current KRS 342.610(4) covers illegal, nonprescribed substances and excessive use of prescribed substances—but not alcohol. Courts cannot judicially restore the broader voluntary-intoxication language removed in 2018.

The Court further upheld the ALJ’s refusal to impose a fifteen-percent safety reduction because the evidence did not compel a finding that Perry’s alcohol use rendered him a hazardous pedestrian or caused the accident. The case therefore reinforces both strict adherence to statutory text and substantial deference to an ALJ’s reasonable factual findings.