Those of us who defend claims are familiar with most of the defenses based on the “conditions of compensation” found in Labor Code Section 3600, such as “initial physical aggressor”, injury occurring during commission of a felony, etc. In other words, a claim is not compensable if it fails one of these “conditions of compensation.”
LC 3600(a)(4) provides as follows: “Where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee.” The definition seems simple enough. However, there are several pitfalls and situations that have to be considered when advancing this defense.
The “intoxication defense” has been interpreted by the courts to mean that “…the California employer is required to establish that intoxication is a proximate cause or substantial factor in bringing about an accident…” (Smith v. WCAB (1981) 123 Cal. App. 3d 763, 773). In order to prove the intoxication defense, the employer must establish that applicant was intoxicated by alcohol or the unlawful use of a controlled substance and that the intoxication was a proximate cause or substantial factor in the injury as outlined above.
How is the Smith court criteria satisfied?
Unlawful use – The substance itself has to be identified. Once identified, confirmation is warranted to determine if the controlled substance was prescribed. If the substance was not prescribed, the drug is unlawful to possess or use per Health and Safety Code Section 11377. The unlawful use standard has been met.
Scientific evidence that the use of the substance caused intoxication – A positive test result as to the existence of a substance is insufficient to demonstrate scientific evidence of intoxication; there has to be a measurement listed. See Calko Transportation v. WCAB (2000) 65 CCC 917 (read: level measurement required). Additionally, an expert opinion (medical/legal evaluator) is warranted to determine if the measured level of the substance would result in intoxication.
Intoxication was the proximate cause or substantial factor of the accident– In the relatively recent California Supreme Court case of South Coast Framing v. WCAB (2015) 61 Cal. 4th 291, the court opined: “California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations.” We turn to the “but for” test.
The claim is not compensable if the aforementioned criteria are met.
What if the facts support a compensable injury but there is involvement of intoxication? Consider if the intoxication contributed to the severity of the injury. If so, arguably apportionment is warranted.
In such situation, the same analysis for the intoxication defense is recommended. Additionally, the expert should provide a discussion as to whether the intoxication contributed to the overall impairment, and if so, what percentage should be apportioned as non-industrial.
Our community tends to interpret the intoxication defense in terms of alcohol or illegal drugs. As a result, opportunities are missed to advance the intoxication defense. LC 3600(a)(4) provides us with the roadmap to defeat compensability and/or mitigate exposure; become familiar with the roadmap.
Written by Jeremiah Brasher, Associate Partner in our Stockton Office, September 2018.