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INTOXICATION
The burden is on the employer to show that intoxication was a proximate cause of the injury. Wyle v. Professional Services Industries, 12 Va. App. 684, 688-89, 406 S.E.2d 410, 412-13 (1991).
Severe intoxication rendering the employee incapable of engaging in his duties removes the employee from the course and scope of the employment. American Safety Razor Co. v. Hunter, 2 Va. App. 258, 343 S.E.2d 461 (1986).
Claimant's severe intoxication had removed him from the course of his employment at the time of his accident. [A]n employee may abandon his employment by reaching an advanced state of intoxication which renders the employee incapable of engaging in his duties. This result is not based upon a special statutory defense of intoxication. Rather, a severely intoxicated employee has removed himself from the scope of his employment. Any injuries thereafter suffered are not "in the course of" the employment. American Safety Razor Co. v. Hunter, 2 Va. App. 258, 261, 343 S.E.2d 461, 463 (1986) (citing 1A A. Larson, The Law of Workmen's Compensation Sec. 34.21 (1985)). A claimant's voluntary intoxication may remove the claimant from the scope of his or her employment at the time of the accident when such condition renders the claimant incapable of performing his or her job duties. Stated differently, although a claimant's state of intoxication might not have contributed directly to an accident, the claimant may remove himself or herself from the course of employment by his or her self-induced intoxication. Claimant had a .21 blood alcohol level approximately five to six hours after he began drinking and approximately two hours after the accident. As a matter of law at the time of the accident, claimant's intoxication rendered him incapable of performing his job duties, assuming he had any duties remaining that day. The totality of the evidence proved that claimant's severe intoxication, resulting from the willing consumption of alcohol provided by his employer, while not engaged in any work-related duty or function, effectively removed him from the scope of his employment hours before the accident. Accordingly, the injury he sustained in the accident did not occur in the course of his employment, and therefore, is not compensable. Vaughan's Landscaping & Maintenance, etc. v. Dodson, Record No. 1667-98-4 (June 29,1999). WP Version.
§ 65.2-306(B) provides: "...if the employer raises as a defense the employee's intoxication or use of a nonprescribed controlled substance identified as such in Chapter 34 of Title 54.1, and there was at the time of the injury or death an amount of alcohol or nonprescribed controlled substance in the bodily fluids of the employee which (i) is equal to or greater than the standard set forth in § 18.2-266, or (ii) in the case of use of a nonprescribed controlled substance, yields a positive test result from a National Institute on Drug Abuse (NIDA) certified laboratory, there shall be a rebuttable presumption that the employee was intoxicated or using a nonprescribed controlled substance at the time of his injury or death." Note: Sec. 54.1-3401 defines "Controlled substance" as "a drug, substance or immediate precursor in Schedules I through VI of this chapter. The term shall not include distilled spirits, wine, malt beverages, or tobacco as those terms are defined or used in Title 3.1 or Title 4.1." Drugs in Schedules I through VI are described and set forth in Sec. 54.1-3444 through Sec. 54.1-3455.
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