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There is no question that James Tlumac was tired and under the influence of alcohol when his truck ran off Route 31 in Hopewell, N.J., in the predawn hours of March 1, 2004. The question is whether he should receive workers' compensation benefits, since he was hauling a load of masonry for his employer at the time.

New Jersey's Appellate Division so held, and on March 20, the employer tried to get the state Supreme Court to find error. Tlumac v. High Bridge Stone Co. Inc., A-69-05.

"How is this possible?" asked Robert Golden, the employer's lawyer, claiming the Appellate Division ignored more than a century of settled law.

Golden, of Bridgewater, N.J.'s Golden, Rothschild, Spagnola, Lundell, Levitt & Boylan, argued that the award of benefits is essentially a blank check for driving drunk. Toxicology reports showed Tlumac had a blood-alcohol level of between .12 and .18, from which it was estimated that, before going to work, he had drunk about seven, 12-ounce cans of beer.

Justice Barry Albin, noting that workers' compensation statutes do not clearly state that intoxication is a bar to benefits, asked, "What do you take from the legislative acquiescence?"

"They may not have been asked" to make the bar explicit, Golden said.

Justice James Zazzali reminded Golden that the Appellate Division took into account other factors, notably that Tlumac, then 52, was tired from lack of sleep owing to taking care of his ailing wife.

Golden disagreed, insisting that drinking was the proximate cause. "There was a time when people were deemed responsible for their actions," he said. "This conduct was outside the control of the employer."

Tlumac's lawyer said the Appellate Division did not break new ground in deciding that his client deserved workers' compensation benefits. "The ruling is consistent with the social policy of providing coverage," said Craig Voorhees, of Somerville's Lieberman, Ryan & Forrest. "He suffered severe injuries ... while working for his employer."

Justice Roberto Rivera-Soto appeared incredulous, saying, "He was driving under the influence. Is that public policy?"

Voorhees said the accident was likely not caused by Tlumac's prior drinking and that the actual cause was "probably" fatigue.

"'Probably' is too strong a word, Mr. Voorhees," said Zazzali.

Zazzali said that while Tlumac's case appears to be strong under the law, he was concerned that "too many drunken drivers" would benefit if the court upheld the Appellate Division's decision.

Voorhees said he did not believe that would be the tenor of a court ruling in Tlumac's favor. "You have to go back to the narrow construction of the rule and the exception," he said. "Was [drinking] the sole cause of the accident? No."

Voorhees added that Tlumac has run up about $200,000 in medical expenses and has no private medical insurance.