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bentsl

Husband was killed working driving a tractor trailer.

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My husband was killed working. He was driving a tractor trailer loaded with 75,000 pounds of coiled steel. The asphalt gave way under the driver side tires and the truck flipped. He was pinned the driver side was crushed. The medical examiner did a tox screen. His alcohol blood concentration (bac) was .086. Is this denial for workers comp death benefits?

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I'm sorry about what happened.

 

"Is this denial for workers comp death benefits?"

Your question is unclear.  Do you mean to say is there something in your unnamed state's workers' comp law by which there'd be an automatic bar to workers' comp?  The answer would be almost certainly "no" even if that BAC level is above your state's legal limit for X/Y charge.

This isn't really something to poke about on the internet; please discuss with a few local workers' comp attorneys.  (One presumes that he wasn't aware of any weight issues with regard to the place where he was driving.  Asphalt giving way and flipping a rig sounds unusual, and wouldn't seem to have anything to do with whether he'd been drinking.  Of course, an employer's insurer will make whatever hay they may out of that, but that doesn't mean his estate oughtn't file a claim.)

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And, by the way, if he was driving w/ tires on edge of asphalt/shoulder when he shouldn't have been, of course that will factor into the fight (and would whether he'd been drinking or not).  Then there's an examination of whether if he was on edge of asphalt and no reason not to be (to position whatever), and no reason for the ground in that area to give way even under 37.5 tons of load (plus its own weight), that's a counter-argument this had nothing to do with his judgment. 

 

In the end, a workers' comp claim is what it is and even if a worker made a mistake they might make at any time, that doesn't mean the claim isn't viable.  Of course, there are exceptions to everything were, say, someone to prove he did it on purpose a la suicide by flipping truck in a situation he knew would be catastrophic so that family would get $$ (a far-fetched prospect)...

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And, by the way, if he was driving w/ tires on edge of asphalt/shoulder when he shouldn't have been, of course that will factor into the fight (and would whether he'd been drinking or not). 

 

The OP said that the asphalt gave way on the driver's side. Assuming that the truck was configured with the standard left hand (port) side of the vehicle used as the driver's side in the U.S., that position would have been on the inside of the road, i.e. towards the center of the road, not close to the edge or shoulder of the road. Thus, it evidently was not a case of the road giving way at the edge or the shoulder of the road. So I'm not seeing why you are making so much of whether the truck may have had tires (which would have been on the passenger side) on the edge or shoulders of the road.

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Your question is unclear.  Do you mean to say is there something in your unnamed state's workers' comp law by which there'd be an automatic bar to workers' comp?  The answer would be almost certainly "no" even if that BAC level is above your state's legal limit for X/Y charge.

 

 

 

I would have written something similar but I did a quick googling and one state came up with a bar to WC benefits with aggravated DUI. I didn't waste time looking further so it becomes imperative for the OP to reveal her state.

 

At the same time I agree that she should be consulting a WC attorney.

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