65.2-306 - When compensation not allowed for injury or death; burden of proof.
§ 65.2-306. When compensation not allowed for injury or death; burden ofproof.
A. No compensation shall be awarded to the employee or his dependents for aninjury or death caused by:
1. The employee's willful misconduct or intentional self-inflicted injury;
2. The employee's attempt to injure another;
3. The employee's intoxication;
4. The employee's willful failure or refusal to use a safety appliance orperform a duty required by statute;
5. The employee's willful breach of any reasonable rule or regulation adoptedby the employer and brought, prior to the accident, to the knowledge of theemployee; or
6. The employee's use of a nonprescribed controlled substance identified assuch in Chapter 34 (§ 54.1-3400 et seq.) of Title 54.1.
B. The person or entity asserting any of the defenses in this section shallhave the burden of proof with respect thereto. However, if the employerraises as a defense the employee's intoxication or use of a nonprescribedcontrolled substance identified as such in Chapter 34 of Title 54.1, andthere was at the time of the injury an amount of alcohol or nonprescribedcontrolled substance in the bodily fluids of the employee which (i) is equalto or greater than the standard set forth in § 18.2-266, or (ii) in the caseof use of a nonprescribed controlled substance, yields a positive test resultfrom a Substance Abuse and Mental Health Services Administration (SAMHSA)certified laboratory, there shall be a rebuttable presumption, whichpresumption shall not be available if the employee dies as a result of hisinjuries, that the employee was intoxicated due to the consumption of alcoholor using a nonprescribed controlled substance at the time of his injury. Theemployee may overcome such a presumption by clear and convincing evidence.
(Code 1950, § 65-35; 1968, c. 660, § 65.1-38; 1991, cc. 166, 355; 1994, cc.600, 804; 2002, c. 636.)