In Jarred Brown v. Integrity Flooring, Southern Insurance Company, 2019 Cal.Wrk.Comp.PD Lexis 9, the WCAB analyzed the interplay and statutory construction between LC section 3600(a)(4) defense of injury caused by intoxication, LC section 3600(a)(8) defenses of injury caused by illegal activity, and LC section 3600(a)(9) defense of injury caused by off-duty recreational activity.

The WCAB first addressed whether the defense of off-duty recreation was established by the Defendant.

LC section 3600(a)(9) provides that for injuries caused by off-duty recreational, social or athletic activities are compensable only if the activities are a reasonable expectancy of the employment or are expressly or impliedly required by the employment.

The WCAB referenced to seminal case: Ezzy v Workers Comp Appeals Bd (1983), wherein the Court of Appeal created a 2 prong test for determining whether participation in an off-duty activity is a reasonable expectation of employment. The elements:

1. Whether the employee subjectively believes that the employer expects participation in an activity, and
2. Whether that belief is objectively reasonable

The WCAB panel considered the facts of record which were limited to the applicant’s unrebutted testimony.

The applicant testified that he was a probationary employee. He subjectively believed he was required to join his employer and co-workers to a restaurant off-duty, as the applicant believed he would be paid his weekly wages there. The applicant testified to having felt pressured to consume alcohol by his employer, and that the employer supplied drinks to the applicant and other employees. The applicant also testified that the employer, who was too drunk to drive, either allowed or requested that the applicant drive the employer’s motorcycle despite the applicant’s probable state of intoxication. The applicant was driving the employer’s motorcycle when the injury occurred.

The WCAB assessed that the applicant had established he subjectively believed the off-duty activity was expected as part of his employment. The applicant was a probationary employee and was thus vulnerable to pressure from the employer. The duty to pay and the right to receive compensation was noted as an integral part of the contract of employment. The WCAB concluded that based on the record- the applicant’s belief that his employment required theses off-duty activities was objectively reasonable.

The WCAB next turned to the defenses of LC section 3600(a)(4) and LC section 3600(a)(b).

LC section 3600(a)(4) – provides that an injury is not compensable if an injured worker’s intoxication is a proximate cause or substantial factor in bringing about the injury. LC 3600 section (a)(8) provides that an injury is not compensable if it is caused by an injured workers’ commission of a felony or crime, or crime, which is punishable as specified under Penal Code section 17(b), and the worker has been convicted of that felony or crime.

In assessing the defense of intoxication, the WCAB considered that, under McCarty v Workmans’ Compensation Appeals Board (1974) the Supreme Court held that an employer is estopped from raising the defense of intoxication when the employer tolerates and encourages drinking.

The WCAB opined that, while the evidence supported a determination that the applicant was intoxicated at the time of injury, his intoxication caused the injury, and that the applicant’s injury resulted from the crime of driving while under the influence of alcohol, the WCAB also found that the employer was estopped from asserting the defense of LC 3600 sections (a)(4) and (a)(8), based on the record.

The Panel assessed that, because the employer had encouraged the applicant to consume alcohol and drive while under the influence of alcohol, the employer/defendant was estopped from asserting the affirmative defense of intoxication and was also estopped from asserting the defense that the applicant’s injury was caused by the crime of driving under the influence of alcohol.

The practice point here is that, while defendant asserted three viable and potentially determinative defenses, the defendant failed to produce witness testimony or other evidence establishing the off-duty activity was not a reasonable expectation of employment. Defendant also failed to produce evidence that employer did not encourage the applicant to drink and drive.

Defendant could have further developed the record and secured the asserted defense. For instance, this case may have had a different result if the defendant had used investigators to secure statements from witnesses that could have been used to rebut the applicant’s testimony. Investigation could have been conducted regarding the applicant’s history of drug or alcohol abuse, which should have been explored and confirmed. Defense counsel should have also assessed whether the employer had a policy of overlooking drugs or alcohol in the workplace. The result of this case was fact driven and the outcome may have been different had defendant properly developed the record.