Home > Uncategorized > Drunk Driving Injuries Not Compensable For Bus Boy’s Post-Shift Drinking

Drunk Driving Injuries Not Compensable For Bus Boy’s Post-Shift Drinking

Not too long ago, your humble blogger had the privilege of representing an entity where a workers’ compensation claim had a civil component as well.  The applicant/plaintiff attorney for the case had a bit of workers’ compensation experience, but was primarily a civil attorney.  After the case was resolved, I never expected to see him again – after all, once people get a taste of workers’ compensation, that’s usually enough to send them running for the hills.

Lo and behold when I saw this gentleman at the Board again just recently, I asked him if he hadn’t had enough last time.  He said his client was a bouncer who got hurt on the job by a “bad guy,” and the “bad guy” didn’t have any money, so it was back to the bottomless well of workers’ comp.

Sure enough, in California, the employers and their insurers often serve as the proverbial whipping boys – whether at fault or not, injured workers (and sometimes, not uninjured workers too!) will squeeze and squeeze to hopefully take a mouthful away from the business and line their pockets.

Recently, the Court of Appeal denied applicant’s petition for a writ of review in the case of Carrillo v. LLG Corporation.  Therein, applicant as a bus boy who got sent home due to a slowdown at the restaurant.  He later came back in his personal clothes (and not the bus boy uniform he was wearing at work) and decided to “hang out” and drink.  He eventually got rowdy to the point where his co-workers asked him to leave, and on the drive elsewhere he got into a single-car collision.  His co-workers found a hole in his windshield and him 20-30 feet from his car, still breathing, with a BAC of 0.16%.

Now, in such a situation, some people might blame themselves for driving drunk. Some people might even be grateful that they did not kill themselves or some hapless third-party.  Of course, others will blame the employer and seek workers’ compensation benefits.

Applicant argued that drinking had been so encouraged and common place at the workplace that neither the intoxication defense or a challenge to AOE/COE should be sustained.

Fortunately for your humble blogger’s sanity, common sense ruled the day.  The WCJ ruled that there was no evidence of a special event or any particular requirement or encouragement on the part of the business to get applicant to drink.  In fact, the owner was not even there that day!

Applicant simply returned to a restaurant that was open to the public, and his presence there (and his drinking) had nothing to do with his job duties or work.

The WCAB adopted and incorporated the WCJ’s opinion and the Court of Appeal denied review.  But, of course, before we got to this wonderful result, the employer and its insurer had to bear the cost of the defense.  The fact-driven inquiry probably drained several hours of work from various employees to attend depositions or give live testimony.

Not only did the employee decide to risk his life and the life of third-party drivers and pedestrians, he continued to inflict damage on his employer with what is, in your humble blogger’s opinion, baseless and frivolous litigation.

And, for all the talk we hear every few years of reform, there seems to be no remedy or protection afforded to the defendants in cases like this – escape liability the defendant might, but scorched Earth is still scorched.

Categories: Uncategorized Tags:
  1. No comments yet.
  1. No trackbacks yet.