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The Intoxication Defense is Not Always Affirmative

By Claire Meredith

 

Who does not love to grab a glass of wine during happy hour with your co-workers, especially now that the weather is getting nice? However, like in all situations, the employer must act reasonable in order to avoid being liable for any injuries resulting from intoxication. If the employer tolerates and encourages the employee's intoxication that resulted in the injury, they may be barred from raising the intoxication defense.


As you know Labor Code Section 3600(a)(4), states an injury is not compensable when it is “caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.” However, it is not always a slam-dunk defense for defendants.


In a recent case, Brown v. Integrity Flooring, 2019 Cal. Wrk. Comp. P.D. LEXIS 9, the applicant was out to dinner with his boss. The applicant testified that the boss provided him with alcoholic beverages before and during dinner. The boss offered a dollar raise for each alcoholic beverage consumed. The applicant also testified that his boss was too drunk to drive and requested he drive the boss’ motorcycle home. The applicant was injured, and the Board concluded defendant could not assert the intoxication defense because the boss encouraged the applicant to consume alcohol and drive while under its influence.


Here, this is clearly egregious behavior. However, it is a good reminder to be careful when having drinks with your employees. Make sure your supervisors (or people in power) are not engaging in this type of activity. Please note, it is ok to go to drinks with your employees after work. However, the drinking must be reasonable. If the applicant continues to drink in excess after the employer has left, the injury will probably be barred by the intoxication defense. But, if the employer encourages the applicant to consume alcohol in excess, they may be liable for any injuries resulting from the intoxication. Have fun but drink responsibly.



ARTICLES

• RTW Form Not a Basis to Deny Voucher

• The Intoxication Defense is Not Always Affirmative

• King Decision and Exclusive Remedy Rule

• Medical Providers Using New Tactic to Challenge Past Bills

• Risk Factors and Apportionment City of Pealuma (Lindh) v. WCAB

• Dynamex Does Not Actually Apply to Workers’ Compensation… or Does It?

• How and Why to Establish the Validity of a Medical Provider Network at Trial

• Attorney Client Privilege & Work Product Doctrine

• The Demise of Vocational Rehabilitation Reports Post 01-01-2013

• Is The Combined Values Chart Rebuttable?

• Panel Dispute Strategy


• Changes To Utilization Review And Independent Medical Review as of 1-1-18

• Labor Code §4903.8(b) - Lien Litigation

• Res Judicata and Collateral Estoppel

• City of Jackson v. WCAB (Rice)

• Jaime Simmons v. Just Wingin’ It, Inc.

• Maxham v. SCIF

• Senate Bill 11/60/Lien Anti-Fraud Provisions and Utilization Review Changes

• Penalties Assessed Under Labor Code Section 5814

• New California Law Establishes Shared Liability Between Employer & Labor Contractor

• Rulings Concerning Medical Treatment Disputes

• Cannon Appellate Decision and The Cannon Ball Effect It Will Have

• The Beginning and Ending of Temporary Disability

• Medical Provider Network Changes

• New Lien Regulations

• Y&R Prevails Against Lien Claimants

• Want to know what the applicant is really up to?

• New En banc decision from WCAB allows Defendant's more Discovery

• A First-Year Associate's Perspective on Workers' Compensation in California

• An Alternative Strategy for Protection against Illegitimate Treating Practices

• TTD & PD Rates for Seasonal Employees

• Labor Code 4658(d)(3)(A)

• Y&R Obtains Take-Nothing from WCAB

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