Phelps v. Positive Action Tool Co.

Wright, J. Although appellants raise several issues on appeal,1 we decide this appeal on the narrow issue of whether Phelps was so intoxicated, as shown by the evidence, that the court can say, as a matter of law, that the injury arose out of his drunken condition and not out of his employment.2 Unlike workers’ compensation legislation in other states, the Ohio Workers’ Compensation Act does not make intoxication the basis of a [144] separate defense to recovery of an award. R.C. 4123.46 provides in part that “[t]he industrial commission shall disburse the state insurance fund to employees of employers who have paid into said fund the premiums applicable to the classes to which they belong when such employees have been injured in the course of their employment, wherever such injuries have occurred, and provided such injuries have not been purposely self-inflicted * * *.” The purpose of the Workers’ Compensation Act is not to make an employer an absolute insurer of the employee’s safety, but only to protect the employee against risks and hazards incident to the performance of his work. In order for compensation to be denied on the basis that an employee was intoxicated, “the employee must be so intoxicated, as shown by the evidence, that the court can say, as a matter of law, that the injury arose out of his drunken condition and not out of his employment.” Hahnemann Hospital v. Indus. Bd. of Illinois (1918), 282 Ill. 316, 327, 118 N.E. 767, 771; Frith v. Owners of S.S. Louisianian (1912), 2 K.B. 155, 5 B.W.C.C. 410. An employee who drinks intoxicating liquor to such an extent that he can no longer engage in his employment abandons his job and, when injured in that condition, his injury does not arise out of his employment. But intoxication which does not incapacitate the employee from following his occupation is not sufficient to defeat the recovery of compensation although the intoxication may be a contributing cause of his injury. Our statute was not designed to make contributory negligence of the employee, or a defense of that nature, a bar to his recovery under the Workers’ Compensation Act, where his injury arose out of and in the course of his employment. See Hahnemann Hospital, supra, at 771. The parameters of the necessary causal connection between the employee’s injury and his employment were discussed in Highway Oil Co. v. Bricker (1935), 130 Ohio St. 175 [4 O.O. 101]. In that case the employee was injured when a gun he had brought to work, without authorization from his employer, discharged and injured him. In disallowing the benefits, this court at 178-179 stated: “ ‘An injury is received “in the course of” the employment when it comes while the workman is doing the duty which he is employed to perform. It “arises out of” the employment, when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the results and injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises “out of” the employment. But it excludes an injury which cannot fairly be traced to the employment of the contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger * * * must be in [145] cidental to the character of the business and not independent of the relation of master and servant. * * *’ ” (Emphasis added.) The court concluded in Highway Oil Co., supra, that there was no connection between the gunshot injury and the work of the employee. The employee brought the gun to the employer’s premises and “thereby became subject to a danger of his own creation, to which the performance of his duties did not expose him * * *.” Id. at 181-182. Although intoxication alone does not necessarily constitute a departure from employment sufficient to preclude recovery under the Workers’ Compensation Act, voluntary intoxication which renders an employee incapable of performing his work is a departure from the course of employment. See 1A Larson, Law of Workmen’s Compensation (1985), Section 34.00. And when the employee is injured in that condition, his injury does not arise out of his employment. Under the facts of this case, it is apparent that petitioner was incapable of performing the activity incidental to the duties of his employment, that is, driving to the work site. The evidence shows that Phelps was drinking continuously in the same bar from approximately 7:00 p.m. until 12:00 a.m. When he left that bar he stopped at another bar to have another drink. The legislature, on the basis of extensive research into the problem of drunken drivers, has determined and statutorily established that a blood alcohol level of .10 percent has an adverse effect on an individual’s coordination and control and that an individual with that blood alcohol level is incapable of safely operating a motor vehicle. R.C. 4511.19. In this case, the analysis showed that Phelps’ blood contained substantially more than is required to raise the presumption of intoxication. With a blood alcohol level of .21 percent, Phelps was well above the minimum needed to impair his driving ability. Impairment of judgment and sensory perception as well as slowed reaction time are commonly known effects of excessive drinking. The fact that there were no skid marks, indicating that the brakes had not been applied prior to impact, the fact that Phelps was unable to remember how the accident occurred, and the fact that he admitted to his physician that he fell asleep at the wheel militate the conclusion that Phelps in fact was grossly intoxicated at the time of the accident. Thus, we hold that under the facts of this case, Phelps’ voluntary intoxication was tantamount to his abandonment of employment and that his injury was proximately caused by his gross state of intoxication. Our decision is consistent with those of other jurisdictions that have no statutory defense of intoxication but recognize intoxication as a bar to recovery where an employee was so intoxicated that he was incapable of performing the duties of his contract. See, e.g., King v. Alabam’s Freight Co. (1931), 38 Ariz. 205, 220, 298 P. 634, 639; Simpkins v. State Banking Dept. (1935), 45 Ariz. 186, 192, 42 P. 2d 47, 49; Ortega v. Ed Horrell & Son (1961), 89 Ariz. 370, 372, 362 P. 2d 744, 745; Sherrill & LaFollette v. Herring (1955), 78 Ariz. 332, 279 P. 2d 907; Embree v. Indus. Comm. (1974), [146] 21 Ariz. App. 411, 520 P. 2d 324; Hahnemann Hospital v. Indus. Bd. of Illinois, supra, at 771; M & M Parking Co. v. Indus. Comm. (1973), 55 Ill. 2d 252, 256, 302 N.E. 2d 265. Based on the foregoing, this court finds as a matter of law that Phelps’ injury arose out of his intoxicated condition and not out of his employment. Accordingly, the decision of the court of appeals is reversed and final judgment is entered for appellants. Judgment reversed. Locher and Holmes, JJ., concur. Sweeney, J., concurs in the syllabus, but dissents from the judgment. Douglas, J., concurs in judgment only. Celebrezze, C.J., and C. Brown, J., dissent. Footnotes [1] Appellants raise the following propositions of law. “Proposition of Law No. I “An accident occurring while a fixed situs employee is traveling to or from work is not sustained within the course of and arising out of the employment and therefore is not compensable under the worker’s [sic] compensation act. “Proposition of Law No. II “An employee deviates from his employment when he becomes intoxicated so that he is unable to properly and adequately pursue the business of his employer. “Proposition of Law No. Ill “A trial court commits reversible error when it refuses to charge a jury with a requested instruction which has application to the issues and states a correct principle of law. “Proposition of Law No. IV “A Court of Appeals errs when it fails to reverse the decision of a trial court where that decision was unsupported by and against the manifest weight of the evidence. “Proposition of Law No. V “A trial court commits reversible error when, 1). It allows counsel for one of the parties to testify at trial on behalf of that party when that testimony prejudices the other party and, 2). It does not require that counsel for a party withdraw from the case following his testimony on behalf of a party where his withdrawal would not create a substantial hardship for his client.” [2] Appellants contend that the appellee, in going to visit the oil drilling site, was on a mission of his own and that the accident did not arise out of and in the course of his employment. Appellants alternatively argue that the appellee was outside the course of his employment because of his intoxication. Appellee argues that the visit to the oil rig was work-related and that he was subsequently in the course of his employment when the auto accident occurred. He also contends that intoxication is not a defense to a claim for workers’ compensation. We do not decide whether appellee was in the course of his employment, for we think that in any event appellee was so incapacitated at the time of his accident that he was outside the scope of his employment. The trial court refused to instruct the jury regarding the effect of appellee’s intoxication on his claim for workers’ compensation benefits. Further, the jury was instructed to accept as fact appellee’s intoxicated condition.