Managing Employee Injuries and Disability and Occupational Safety

Ordinarily, in order to rely on this defense, an employer may be required to actually carry out discipline against the employee. If discipline is not carried out, the defense of material deviation may not be available. 21

7. O THER S PECIAL C IRCUMSTANCES OF I NJURY

a. Intoxication An injury is not compensable if it is caused by the intoxication of the injured employee. The key question is one of causation. It is not enough to show that the employee was intoxicated at the time of injury. It must be shown that the injury would not have occurred except for the intoxication. Another problem arises in proving intoxication. The employer must prove that the employee was drinking, that he was legally intoxicated, and that the intoxication caused the injury. Labor Code Section 3600 a(4). b. Self-Inflicted Injury Injuries which are “intentionally self-inflicted” are not compensable. Labor Code Section 3600 a(5). In order to be non-compensable, there must be evidence of a deliberate intent on the part of the worker to cause injury to himself, and not merely a failure to realize the probable consequences of the action. In one case, a police officer was held to have sustained a compensable injury when he struck a wall with his fist upon learning that the District Attorney had declined to prosecute a prisoner he had apprehended. c. Suicide Suicides have traditionally posed problems because they may be viewed as the result of a willful act on the part of the employee, which severs the causal connection between the job related injury and the employee’s death. The Labor Code states that no benefits shall be payable if an employee has “willfully and deliberately caused his own death.” Because the language requires that the employee has formed an intent in order that the injury be deemed non-compensable, recovery is possible where suicide is the result of delirium, an uncontrollable impulse, or an inability to make a conscious rational decision. Thus, benefits would be payable if there were evidence of a mental disorder sufficiently serious to deprive one of volition. Labor Code Section 3600 a(6). Note that there is a presumption that a death is not caused by suicide, and the burden of proving suicide rests with the employer. 22 d. Initial Physical Aggressor An injury is not compensable if it arises “out of an altercation in which the injured employee is the initial physical aggressor.” An altercation is an exchange between two or more individuals characterized by an atmosphere of animosity and a willingness to inflict bodily harm. The difficulty with this section of the code is in determining who the “initial aggressor” is. The term is construed in the context of reasonableness, extent of provocation, human propensities and materiality of the initial aggression to the particular injury. Generally, the “initial aggressor” is the person who first engages in physical conduct which a reasonable man would perceive to be a real, present and apparent threat of bodily harm. Labor Code Section 3600 a(7).

Managing Employee Injuries, Disability and Occupational Safety ©2019 (s) Liebert Cassidy Whitmore 23