Washington Landscaper Denied Benefits After "Blowing" Twice the Legal Limit
In a decision not designated for publication, an appellate court from the state of Washington affirmed a jury’s determination that an injured worker was intoxicated to such an extent that he had abandoned his employment, rendering him ineligible for workers’ compensation benefits [Gomez v. Department of Labor & Indus., 2020 Wash. App. LEXIS 1211 (Apr. 27, 2020)]. The appellate court noted that the worker had not challenged the court’s instructions to the jury, but had proposed instructions of his own, which were rejected by the court. The worker had contended, inter alia, that the Department bore the burden of proving that he had abandoned the employment, as he could not prove a negative. The appellate court disagreed, holding the worker had been allowed to argue his theory of the case.
Background
Gomez, a landscaping foreman/group leader, sought workers’ compensation benefits following a collision in which he rear-ended another vehicle while driving a company vehicle back to the company’s offices after a landscaping job. The Board found — and Gomez did not object at the Appeals Board level — that on the date of the accident, Gomez consumed alcohol during his lunch break. Just before the collision, a passenger in another vehicle observed Gomez weaving in and out of traffic. Gomez was observed to “cut off” another vehicle, which had to brake quickly to avoid a collision. After the collision, two samples of Gomez’s breath showed he had blood-alcohol concentration measuring .192 and .186, respectively.
The Department denied Gomez’s claim for benefits, concluding he was not in the course of employment at the time of injury. On appeal, an Industrial Appeals Judge (IAJ) affirmed the Department’s order and made findings. The Board of Industrial Insurance Appeals (Board) denied his petition for review, making the IAJ’s proposed decision and order final.
Gomez appealed the Board’s decision to King County Superior Court, which held a jury trial. The jury found the Board was correct in deciding that at the time of the trip between the job site and the employer, Gomez was intoxicated by alcohol to such an extent that he abandoned his employment. Gomez appealed.
Appellate Court Decision
The appellate court initially stressed that Gomez had not challenged the trial court’s instructions to the jury, but had only argued that his own set of instructions should have been given. His version differed in that it would have charged the jury that it was the Department’s burden to prove that he was not in the course and scope of his employment at the time of the accident. The court noted that while the Workers’ Compensation Act was liberally construed in favor of those who come within its terms, that did not mean Gomez did not need to prove his entitlement to benefits and the Board had clearly found that he was not so entitled.
Gomez’s argument that he could hardly prove a negative fell on deaf ears. True, the Act allowed compensation generally without considering fault or negligence on the part of the worker, but here the Department had found and the Board affirmed a finding that Gomez had abandoned that employment by consuming so much alcohol. Nothing in the trial court’s instructions suggested that negligence was a factor for the jury to consider. Furthermore, the trial court’s instructions allowed Gomez to argue his theory of the case — that even though he was intoxicated at the time of the injury, he was performing work for his employer and his claim should be allowed. Gomez just hadn’t prevailed.
Comment
The appellate court was silent with regard to one factor that Gomez seemed intent on minimizing: that his blood alcohol level at the time of the accident was twice the normal limit. This wasn’t a situation in which the worker “blew” just above the 0.08 percent level. The jury found that Gomez was so intoxicated that he was no longer furthering the employer’s interests. It is difficult to see this case being decided differently.