Thought Leadership

On June 8, 2021, at approximately 4 a.m., Mr. Willis was involved in single-vehicle accident when his work truck struck a guardrail. The accident occurred in Maryland, although he had left Delaware and had been driving for a while at the time it happened. 

Police officers found the claimant wedged between the driver and passenger seats of his semi-truck. He needed assistance getting out. When approaching the truck, the officers witnessed the claimant throw three cans of light beer out the truck window, two of which were empty and one was one quarter full. They were cool to the touch. There was an unopened can of beer in a cooler in the cab. The claimant had defecated on himself, and he could not remember how he got in the accident when he spoke to the officers. 

He later told the medical providers he had swerved to avoid a deer. The claimant admitted he had consumed three light beers while in the truck. He reported that he usually packs a cooler to celebrate the end of his shift and drinks the beers on the way home, after finishing his work. On this day, he started drinking beer early. 

The claimant refused to undergo a field sobriety test and was arrested on suspicion of DUI. He pled “not guilty, agree statement of facts” and was sentenced to probation before judgment. There was an audio recording of the conversation between the claimant, counsel and the judge when he entered the plea deal. 

The claimant filed a Petition to Determine Compensation Due alleging the motor vehicle accident was a compensable work accident. At the hearing, the employer argued Mr. Willis was not within the course and scope of his employment because he violated the employer’s drug alcohol policy, which said one cannot drink at work. The employer also claimed Mr. Willis forfeited his right to benefits based on Section 2353(b) because the injury was due to his intoxication and/or reckless indifference to danger. 

Part of the evidence presented at the hearing was the entirety of the police body camera footage, which was over 90 minutes long; however, there were audio issues that cut the sound out for portions of the footage. The employer wanted to also admit the audio recording of the criminal plea hearing, but this was denied based on a hearsay objection. The employer wanted to admit results from a breathalyzer test taken hours after the accident, which were signed by both an alcohol technician and the claimant. However, the Industrial Accident Board excluded the breathalyzer test results because they were not properly authenticated by a witness to explain what the test is, how it is performed and what the results mean—despite the toxicology.

After consideration of the evidence, the Board granted the claimant’s petition in part and reject the employer’s course and scope and forfeiture arguments. 

The Board cited Larson’s treatise for the proposition that violating the employer’s drug alcohol policy did not take the accident outside the course and scope of employer. 

Next, the Board held the employer failed to meet its burden to prove the claimant was intoxicated or that the intoxication was the proximate cause of the accident. The Board reasoned the brand of light beer consumed by the claimant had a low alcohol content, no one saw the claimant drink the beers and the drive was two hours long. Therefore, the Board was unable to determine when Mr. Willis drank the beers and over how long a duration. No expert linked alcohol consumption to an inability to function. The police body camera footage did not correlate with the officers’ testimony about apparent intoxication. The employer’s own witnesses testified about the difficulty of driving the truck, and the claimant was driving for some time when the accident occurred, which, according to the Board, was evidence he was not intoxicated. 

The Board similarly held the employer did not carry its burden to prove the claimant’s reckless indifference to danger.

The employer appealed this decision to the Delaware Superior Court and advanced multiple arguments. The court first held the Board did not abuse its discretion when it excluded the breathalyzer test results and the related testimony regarding the toxicology report from evidence because there was no witness presented to authenticate the evidence. The court further reasoned someone needed to testify that the alcohol technician followed standard procedures in administering the test in order to establish the evidentiary foundation for admissibility. The court did note, if admitted, the test results from several hours after the accident would show BACs of .19 and .181—more than twice Delaware’s legal limit.

However, the court next held the Board abused its discretion by refusing to allow cross-examination of Mr. Willis by using an audio recording of prior statements he made during the Maryland proceeding. The court explained the Board’s decision to sustain the claimant’s hearsay objection was incorrect as Mr. Willis’ own statements, as an opposing party, are not hearsay. The court emphasized the significant probative value of the evidence as it pertained to issues such as the claimant’s physical state, level of intoxication and causation—whether he said anything about a deer causing him to swerve. 

Next, the court held the Board erred as a matter of law in finding that Mr. Willis was acting within the course and scope of his employment. A deviation from company policy does not remove an employee from the course and scope on its own, but the Board had taken that general rule and expanded it too far in this situation. The court cited the Larson’s workers’ compensation treatise to emphasize that voluntary intoxication that renders an employee incapable of performing work is a departure from the course of employment. Mr. Willis’ conduct was not just a violation of the employer’s drug and alcohol policy, it was manifestly unreasonable and unexpected for him to drink and drive while operating a semi-truck on a public highway. The court held this constituted reckless indifference to danger and was the epitome of the “I don’t care attitude” that is part and parcel of that analysis.

The court next addressed the section 2353(b) forfeiture contentions of reckless indifference, including the requirement that the injury was proximately caused by the intoxication. The court explained, the burden of proof for this forfeiture is a preponderance of the evidence, and the Board held the employer to a higher burden of proof when it required the employer to “clearly establish that actual intoxication caused the accident.” This was an error of law.

The court next held that substantial evidence established the employer proved both intoxication and that Mr. Willis acted deliberately and recklessly. The court described “overwhelming evidence” to support the fact that the claimant’s intoxication and reckless indifference to danger proximately caused the accident. 

The Board had already rejected the argument that a concussion accounted for Mr. Willis’ presentation in proceedings below, and that intoxication was the best explanation for the lack of use of Mr. Willis’ physical and mental faculties. The court criticized the Board’s decision to speculate about light beer’s impact on intoxication. The Board disregarded trained police officers’ account of their first-hand experience with the claimant and, instead, relied upon their own view of the video with incomplete audio. The court held there was an abuse of discretion because a reasonable mind would not have concluded that Mr. Willis was sober at the time of the accident or that his conduct was not recklessly indifferent.

Lastly, the court held the Board abused its discretion by applying the wrong causation standard and inserting its own speculative theory regarding the cause of the crash. The Board had reasoned that if Mr. Willis swerved the truck to avoid hitting deer, it would have resulted in an accident regardless of intoxication. This was the wrong analysis because (1) it implicitly required intoxication to be the exclusive cause rather than the proximate cause and (2) the factual speculation did not outweigh substantial evidence to the contrary in the record. 

Ultimately, the court determined the Board’s decision exceeded the bounds of reason in view of the circumstances. The Board erroneously relied on its own speculation instead of the substantial evidence in the record. It applied the wrong burden of proof. It abused its discretion by finding that no causation was established. According to the court, the Board’s decision would set a dangerous precedent, that employees can get away with driving impaired on the job—”as long as it’s light beer”—despite overwhelming evidence to the contrary. 

_{What’s Hot in Workers’ Comp, Vol. 29, No. 1, January 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}