Workers' Compensation

California: When Holiday Cheer Spills Over to the Workplace users can link to the citations below.

This is the time of year to eat, drink and be merry, right? Perhaps it is worthwhile to take a moment and consider what happens, from a workers’ compensation perspective, when an intoxicated employee suffers an injury at work. Can that employee recover workers’ compensation benefits?

Labor Code § 3600(a)(4)

Labor Code § 3600(a)(4) provides that liability for an industrial injury shall exist where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.  This is not very difficult to understand: an employee has an industrial injury, it is later determined that he or she was intoxicated at the time of injury. He or she cannot recover benefits, right? Not so fast…

Vasquez Panel Decision

Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed Labor Code § 3600(a)(4). In Elvira Vasquez v. Del Monte Foods and Zurich Insurance, 2012 Cal. Wrk. Comp. P.D. LEXIS 542, applicant sustained an injury to her right hand and fingers while operating a forklift. At the emergency room, the applicant provided a urine sample for a drug screen. The drug screen laboratory report stated that there was “fatal flaw: insufficient specimen volume.” The laboratory report also stated that the applicant tested positive for amphetamines.

The parties selected a panel qualified medical evaluator (PQME) in the specialty of Occupational Medicine. After reviewing the laboratory report, several research studies, and Wikipedia, the PQME concluded the applicant was taking significant amounts of Amphetamine and Methamphetamine at the time of her injury. He concluded the level of drugs in her system would “adversely affect her judgment, coordination, reflexes and injury avoidance”. In subsequent supplemental reports, the PQME continued to express his assessment that applicant’s methamphetamine use impaired her judgment at the time of injury. It was his final opinion that applicant’s drug use “contributed measurably” to the claimed injury.

In analyzing the case, the commissioners first noted that the effect of Labor Code § 3600(a)(4) was to exclude injuries from compensability that resulted from intoxication. The commissioners further noted that § 5705(b) placed the burden of proof on a defendant to show that the intoxication was a material element or substantial factor in bringing about the injury.

In this particular case, the panel found that defendant did not meet its burden of proof to show that applicant’s intoxication was a material element in causing the injury. The panel noted that even if defendant had shown that applicant was intoxicated, defendant did not show that her intoxication was a substantial factor in causing her injury.

The commissioners specifically observed “there is no evidence tying the exact mechanism of the accident to applicant’s alleged intoxication”. The commissioners found that they could not infer, without some additional evidence, that intoxication caused the accident in this particular case. The panel found that the PQME’s opinion that the applicant, because she was intoxicated, “either did something that she normally would not do, and/or did not do something that she needed to do to prevent this accident” was too general and too speculative to establish that intoxication caused the accident.

Accordingly, the panel granted reconsideration, rescinded the WCJ’s decision finding that applicant’s claim of injury was barred by § 3600(a)(4), found that applicant sustained an industrial injury, and that defendant did not meet its burden of proof to establish, pursuant to Labor Code § 3600(a)(4), that applicant’s intoxication was a proximate cause of her injury.

Defendant subsequently filed a petition for reconsideration to the panel’s finding of industrial injury. In a subsequent decision, the same panel of commissioners denied reconsideration. In this brief decision, the panel noted that the drug test by itself was insufficient to establish that applicant’s intoxication caused her injury. The panel noted:

“In Pirelli Armstrong Tire Corp. v. Workers’ Comp. Appeals Bd. (Brinkley) (1999), 64 Cal.Comp.Cases 1311 [writ den.], the fact that applicant tested positive for cocaine, codeine, and methamphetamine after his industrial injury severing his right hand while using a hydraulic machine did not in and of itself establish that applicant was intoxicated or that the intoxication caused his injury. Similarly, in this case, defendant has not offered evidence that applicant was acting in an intoxicated manner prior to her injury or any substantial evidence that intoxication caused her injury.”

Just Proving Applicant’s Intoxication Is Not Enough

Many defendant’s make the mistake of assuming that if they can prove the applicant was highly intoxicated at the time of injury, that they will be able to prevail in asserting the intoxication defense. The panel in Vasquez does an excellent job of explaining why this is untrue. Even if a defendant were able to prove that an employee was “stumbling drunk” at the time of his or her injury, if there is not also substantial evidence that the intoxication caused the injury, the fact of the employee’s intoxication alone is insignificant.

Contrary to what many may think, proving this defense can be very difficult. Defendant must be able to “connect the dots”. The focus in these cases must not be the intoxication itself, but rather, whether the intoxication caused the injury. For example, the claim of a painter who drinks thirty beers throughout the night, right up to the time he is leaving for work the next day, who falls from a ladder within an hour of arriving at work, may not be barred unless there is evidence that his intoxication caused him to fall. The claim of a construction worker who has only three beers at lunch who hits his hand with a hammer may be barred where the evidence is that the lapse in concentration caused by the alcohol caused his injury. Thus, contrary to what many defendants assume, it is not typically the degree of intoxication that matters the most in these cases.

In conclusion, if you are contemplating raising this as a defense in your case, no matter how outrageous the facts might appear, you would be well advised to consider whether the intoxication caused the injury and whether or not you can prove it.

© Copyright 2012 LexisNexis. All rights reserved. This case summary will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).

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