WCDefenseCA

When your humble blogger was in law school, he was automatically enrolled in a class called Torts.  His dreams were hopelessly dashed when he discovered that, not only did the class have nothing to do with pastries, but the course was also to be taught in Latin (at least in part).  In fact, some of the Latin taught to this humblest of bloggers was “Res Ipsa Loquitor,” or the thing speaks for itself.

The case was an old one about a man walking down the street past a warehouse where workers were loading barrels out of the 2nd-floor storage onto trucks below.  Suddenly, a barrel rolled off the second floor and hit the man walking on the street, causing serious injury.  The court found liability because the facts established the outline of the fact-pattern, and the rest could be assumed as the natural course of events given the circumstantial evidence.

Your humble blogger feels a bit cheated – it turns out this doctrine has no effect in California Workers’ Compensation law, at least when the issue of an applicant’s intoxication is before the bench.

The recent panel decision in the case of Elvira Vasquez v. Del Monte Foods comes to mind.  Applicant was barred from recovery after sustaining an injury to her right hand because the workers’ compensation Judge found the claim barred by the intoxication defense of Labor Code section 3600(a)(4).

Applicant, a front-runner for the Darwin Award, decided that the best possible course of action was to take amphetamines and methamphetamines, prior to operating a forklift.  WCDefenseCA obtained exclusive footage of the event.

Applicant was taken to the emergency room where she provided a urine sample for a drug screening.  The safety coordinator overheard applicant ask her daughter to bring a clean urine sample, and told the nurse, so a second urine sample was taken and tested.  The panel QME found that those levels of Amphetamine and Methamphetamine in applicant’s blood were “certainly significant, and [were] very high, supporting a conclusion of a high probability of impairment.  This degree of impairment is sufficient to describe as performance impairing.” “Very high” is right.

So why is the defendant on the hook?

The Workers’ Compensation Appeals Board cited Pirelli Armstrong Tire Corp v. Workers’ Comp. Appeals Bd., a 1999 writ-denied panel case for the proposition that the burden remains on the defendant to show (1) applicant was intoxicated; and (2) the intoxication caused the applicant’s injury.

Your humble blogger respectfully disagrees – at a certain point we must respect an implied citation to common sense.  If applicant was seen eating a sesame seed bagel prior to being struck by lightning, and the autopsy showed signs of opium, perhaps there would be a real question of fact as to the intoxication defense (everyone knows that Zeus prefers blueberry bagels instead).  But, instead, in this case you have an applicant testing positive for Amphetamine and Methamphetamine right after the injury… and she tried to get her daughter to provide clean urine to conceal the fact.

Absent a confession, what evidence could the defense put on?  By interpreting the law to impose an unreachable standard upon the defense, isn’t the WCAB effectively overruling a state law?  Hopefully applicant can walk away from this experience with the lesson that work comes before play, and operating heavy machinery comes before hitting the friendly neighborhood meth lab.