Phelps v. Positive Action Tool Co.

• Decision Date: 25 August 1986
• Docket Number: No. 85-872,85-872
• Citation: 26 OBR 122,497 N.E.2d 969,26 Ohio St.3d 142
• Parties: , 26 O.B.R. 122 PHELPS, Appellee, v. POSITIVE ACTION TOOL COMPANY; Mayfield, Admr., et al., Appellants.
• Court: Ohio Supreme Court

Page 142

26 Ohio St.3d 142

497 N.E.2d 969, 26 O.B.R. 122

PHELPS, Appellee, v. POSITIVE ACTION TOOL COMPANY; Mayfield, Admr., et al., Appellants.

No. 85-872.

Supreme Court of Ohio.

Aug. 25, 1986.

Syllabus by the Court

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.

Bill G. Phelps, a shop foreman for Positive Action Tool Company ("PATCO"), filed an application seeking compensation from the Bureau of Workers' Compensation for injuries sustained at approximately 2:15 a.m. on February 24, 1981 in a pickup truck accident that occurred when he was driving to work. On February 23, 1981, Phelps worked at the PATCO plant from 8:00 a.m. until 5:00 p.m. Between 7:00 and 8:00 p.m. that evening, Phelps went to the Eagles Club Bar where he socialized and steadily indulged in alcoholic beverages until approximately 12:00 a.m. At that time, he received a call prompting him to return to work. Before returning to work, Phelps stopped at Chardy's Bar for a drink and then went to an oil drilling site, allegedly to talk with a prospective employee. The prospective employee was not at the drilling site but Phelps remained there and socialized for about an hour with the driller who was present. After leaving the drilling site, Phelps proceeded through the township of Wooster toward the PATCO plant. Before he arrived there, Phelps had a vehicle accident in which he drove off the left side of the roadway at a curve, turned his truck over one time and then spun back across the right side of the roadway into a ditch.

An Ohio State Highway Patrol Officer arrived at the scene shortly thereafter and requested that Phelps take a blood alcohol test. The test was taken at approximately 3:20 a.m. and it indicated a blood alcohol level of .21 percent. The trooper's investigation notes in his traffic crash report indicate that no statement was taken from Phelps because Phelps could not remember anything. It was also noted in the report that there were no skid marks. Shortly after the accident, Phelps was taken to Wooster Community Hospital and was attended by Dr. Richard J. Watkins. Dr. Watkins indicated in his history records that Phelps stated he fell asleep while driving. Subsequently, Phelps claimed the accident was the result of a tire blowout.

The Industrial Commission denied Phelps' claim. Thereafter Phelps appealed to the Court of Common Pleas of Wayne County. The cause was tried before a jury that returned a verdict for Phelps and determined that he had a right to workers' compensation benefits. Judgment was entered for Phelps. The court of appeals affirmed.

This cause is now before this court upon the allowance of a motion to certify the record.

M. Blake Stone, Robert N. Gluck, Wooster, for appellee.

Anthony J. Celebrezze, Jr., Atty. Gen., Janet E. Jackson, Richard C. Slavin, Columbus, for appellants.

WRIGHT, Justice.

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 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 , 198 N.E. 276. 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, 198 N.E. 276 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 incidental 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, 198 N.E. 276.

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 & La Follette v. Herring (1955), 78 Ariz. 332, 279 P.2d 907; Embree v. Indus. Comm. (1974) 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...