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INTOXICATION
The burden is on the employer to show that intoxication was a proximate cause of the injury. Wyle v. Professional Services Industries, 12 Va. App. 684, 688-89, 406 S.E.2d 410, 412-13 (1991).
Severe intoxication rendering the employee incapable of engaging in his duties removes the employee from the course and scope of the employment. American Safety Razor Co. v. Hunter, 2 Va. App. 258, 343 S.E.2d 461 (1986).
An intoxicated employee being driven home by his employer in accordance with an agreement with his employer to provide him transportation to and from work and whose employer had provided him alcoholic beverages after they had finished their last job of the day, may recover benefits for injuries sustained in an accident on the way home. The employer did not expect the employee to work any more that day after finishing the job and starting to drive back home. Under these circumstances, the principle articulated in American Safety Razor v. Hunter, 2 Va. App. 258, 261, 343 S.E.2d 461, 463 (1986) regarding abandonment of employment because of severe intoxication does not apply. If an employer, as in this case, furnishes an employee transportation to and from work, injuries that occur during such transportation are compensable as arising out of and in the course of employment. Provident Life and Accident Insurance Company v. Barnard, 236 Va. 41, 45, 372 S.E.2d 369, 371 (1988). Employer was acting as the employee's employer and not as a mere friend when he resumed the trip home after a stop to play horseshoes with friends. In taking the employee home, the employer was fulfilling his agreement as the employer to provide transportation to and from work. Cases stating that if an employee so materially deviates from the employment-related purposes of his trip as to constitute a "frolic of his own," any accident occurring at that time is not considered to have occurred in the course of employment, see, e.g., Taylor v. Robertson Chevrolet Co., 177 Va. 289, 295, 13 S.E.2d 326, 329 (1941) are inapplicable. Accordingly, the employee's injuries arose out of and in the course of his employment. Vaughan's Landscaping v. Dodson, Record No. 001740 (June 8, 2001). WP Version.
History of case: Upon rehearing en banc, the judgment of the commission was affirmed without opinion by an evenly divided Court. Accordingly, the opinion previously rendered by a panel of the Court of Appeals on June 29, 1999, see Vaughan's Landscaping & Maintenance v. Dodson, 30 Va. App. 135, 515 S.E.2d 800 (1999), is withdrawn, and the mandate entered on that date is vacated. In Dodson v. Vaughan's Landscaping & Maintenance, VWC File No. 183-34-74 (July 4, 1998) the VWC held that claimant's intoxication did not take the employee outside the scope of his employment. consumed only those alcoholic beverages which were purchased and supplied by his supervisor. We find that claimant had not consumed any alcohol or drugs prior to the start of the work day, nor did he bring any alcohol or drugs to work. At the time of this occurrence, claimant was below the legal drinking age, and his supervisor was aware of that fact. His supervisor was not only the claimant's direct supervisor, but was also the owner and sole proprietor of the business. The VWC found that his supervisor bought wine and beer, and gave it to claimant to consume. He thereby illegally promoted and facilitated the under age claimant's consumption of alcoholic beverages. Having provided the alcohol, the employer obviously encouraged and condoned the claimant's conduct, and will not now be heard to assert the claimant's intoxication as a defense to his claim for benefits. Vaughan's Landscaping v. Timothy Dodson, Record No. 1667-98-4 (June 20, 2000). WP Version.
Summary of Panel Decision: Claimant's severe intoxication had removed him from the course of his employment at the time of his accident. [A]n employee may abandon his employment by reaching an advanced state of intoxication which renders the employee incapable of engaging in his duties. This result is not based upon a special statutory defense of intoxication. Rather, a severely intoxicated employee has removed himself from the scope of his employment. Any injuries thereafter suffered are not "in the course of" the employment. American Safety Razor Co. v. Hunter, 2 Va. App. 258, 261, 343 S.E.2d 461, 463 (1986) (citing 1A A. Larson, The Law of Workmen's Compensation Sec. 34.21 (1985)). A claimant's voluntary intoxication may remove the claimant from the scope of his or her employment at the time of the accident when such condition renders the claimant incapable of performing his or her job duties. Stated differently, although a claimant's state of intoxication might not have contributed directly to an accident, the claimant may remove himself or herself from the course of employment by his or her self-induced intoxication. Claimant had a .21 blood alcohol level approximately five to six hours after he began drinking and approximately two hours after the accident. As a matter of law at the time of the accident, claimant's intoxication rendered him incapable of performing his job duties, assuming he had any duties remaining that day. The totality of the evidence proved that claimant's severe intoxication, resulting from the willing consumption of alcohol provided by his employer, while not engaged in any work-related duty or function, effectively removed him from the scope of his employment hours before the accident. Accordingly, the injury he sustained in the accident did not occur in the course of his employment, and therefore, is not compensable. Vaughan's Landscaping & Maintenance, etc. v. Dodson, Record No. 1667-98-4 (June 29,1999). WP Version.
§ 65.2-306(B) provides: "...if the employer raises as a defense the employee's intoxication or use of a nonprescribed controlled substance identified as such in Chapter 34 of Title 54.1, and there was at the time of the injury or death an amount of alcohol or nonprescribed controlled substance in the bodily fluids of the employee which (i) is equal to or greater than the standard set forth in § 18.2-266, or (ii) in the case of use of a nonprescribed controlled substance, yields a positive test result from a National Institute on Drug Abuse (NIDA) certified laboratory, there shall be a rebuttable presumption that the employee was intoxicated or using a nonprescribed controlled substance at the time of his injury or death." Note: Sec. 54.1-3401 defines "Controlled substance" as "a drug, substance or immediate precursor in Schedules I through VI of this chapter. The term shall not include distilled spirits, wine, malt beverages, or tobacco as those terms are defined or used in Title 3.1 or Title 4.1." Drugs in Schedules I through VI are described and set forth in Sec. 54.1-3444 through Sec. 54.1-3455.Legal Summaries Contents Home Page Contents