THE INFORMATION ON THIS BLOG IS WRITTEN BY AN ATTORNEY LICENSED IN CALIFORNIA. The validity of information outside of California has not been verified. THE INFORMATION ON THIS WEBSITE IS NOT MEANT TO CREATE A LEGAL RELATIONSHIP. David Nitka will only acknowledge an attorney-client relationship with those persons who have a signed retainer agreement with David Nitka or his law office.

Thursday, January 21, 2010

Extending the boundries of "Work"

Did you know if you are injured at a work function out of the office, you may be compensated. If you are injured coming and going from the work function, you may be compensated. "Injured at work" has a much broader meaning than just within the four walls of the office.

Under the law there is the Subjective/Objective test which relates to work injuries that occur out of the office. The test reads like this: Did the injured worker SUBJECTIVELY believe they were obligated to attend the event? AND Was this belief OBJECTIVELY reasonable to an outside observer?

In regular person speak this can be explained as follows. This is a two part test where both parts must be met. The first part relates to the belief of the injured worker. Did the injured worker believe they had to attend the work function. Imagine an office holiday party held at an restaurant. If a person is injured at the office holiday party are they entitled to compensation? The first question is whether the injured person believes they were obligated to attend. How is this proven? Simple the injured worker need only testify under oath, "I believe I was obligated to attend the office holiday party."

Now comes the second part of the test. Would an outside observer consider the beliefs of the employee reasonable. This is proven by showing that the surrounding circumstances proves the employees belief that they were expected to attend the work event. Surrounding circumstances in our office holiday party example may include: Did the supervisors "require" attendance, was business going to be conducted at the party, would clients be in attendance, did the whole office go or only some people, was the invitation sent via company email or personal email, was the party paid for with company funds, how many supervisors/managers attended. All of these facts would go the outside observer(the judge) determining whether the employee was reasonable in thinking that they were obligated to attend the event.

If both parts of the test are proven, then the injury at the office holiday part is compensable. As I previously discussed, depending on the facts of the injury the injured person may also have a right for a second lawsuit against the third party responsible.

Tuesday, January 5, 2010


Drinking on the job is bad. I don't encourage it. I don't recommend it. At the same time, Drinking on the job is not a bar to a workers' compensation claim.

If an employee alleges a work accident, the employer may raise a defense that that the injured worker was intoxicated. If the employer prevails, the employee takes nothing. The employer has a rather high bar to meet though.

1. In order to succeed the employer must prove two things. Labor Code Section 5705 (B) says that the intoxication must have CAUSED the injury. First the employer must prove the employee was intoxicated. Most employers don't have a breathalyzer in the office. So the judge will have to weigh the evidence and decide the issue of intoxication.

If the judge decides the employee was intoxicated. Then the second issue must be decided, CAUSE. Its not enough to show the employee was intoxicated. The employer must show that intoxication CAUSED the injury. If an employee is intoxicated at work and injured because a box falls on them. The intoxication did not cause the injury, rather it was the falling box. On the other hand if an employee is intoxicated at work and slips and falls, the intoxication may have caused the fall thus the employee will take nothing.

For both parts of the California Court of Appeals in Smith v. WCAB 123 Cal.App.3d 763 (1981) ruled that "We conclude that the California employer is required to establish that intoxication is a proximate cause or substantial factor in bringing about an accident resulting in death..."

In this instance, having a lawyer who can protect your interests and is aware of the two part test can go a long way in helping you prove your case.

2. What if drinking is part of your work? Put simply the affirmative defense in 5705 is greatly reduced or nullified. The case of McCarty v WCAB 12 Cal.3d 677(1974) was decided by the Supreme Court and involved a worker driving home drunk who struck a pole with his car and died. His widow applied for death benefits and was denied. The court ruled the widow could receive benefits because of the following facts:

McCarty was an employee of Apartment Plumbers, Inc., a corporation owned and managed by Alan McGowan and Robert Schlossberg. The company's normal working day ended at 4:30 p.m., but employees, including McCarty, frequently remained at the company office after that time to discuss business and social matters, drink beer and liquor, play poker, and shoot craps. The owner-managers participated in these activities, and often purchased the refreshments with company funds. Employees stored beer in the refrigerator at the office; McCarty, who preferred bourbon, kept a half pint of Jack Daniels on a shelf. McCarty's wife testified that he would come home from work late, with evidence of drinking, about 75 percent of the time. The owners knew that McCarty drank alcoholic beverages and that relatively little alcohol affected his behavior.

Aside from sounding like an awesome place to work, the take away lesson here is that if your employer provides you with alcohol, that does not preclude the filing of a workers' comp claim.
This would be especially true if you are injured at a company in the alcohol business, (Bartender, Sommelier, Liquor Sales, etc) or if you are injured at a company function where alcohol is served like a company party or special event. This would also permit recovery.

If you are involved in an alcohol related accident at work or as a result of work or as a result of consuming alcohol at work, you may be entitled to compensation.

One final note, most of the case law about people who drink at work usually end up with the drunk person dead. Keep that in mind when you decide to drink at work, the money isn't worth it when you die.