Employee misconduct is immaterial in workers' compensation law unless it constitutes a deviation from the course of employment, or unless it fits the statutory defenses of 85 O.S. §312; [Act §11A]. See Larson's, Workers' Compensation, Chapter 32.
The statutory defenses of intentional injury and failure to use a safety device contain the element of willfulness which has been discussed by the Oklahoma Supreme Court:
The willfulness contemplated amounts to more than a mere act of the will, and carries with it the idea of premeditation, obstinacy, and intentional wrongdoing.
Wick v. Gunn, 1917 OK 607, 169 P. 1087.
These are affirmative defenses which require notice of the defense to the employee and place the burden of proof on the employer. Wick v. Gunn, 1917 OK 607, 169 P. 1087; Ashley v. Monsanto, 2000 OK CIV APP 43, 4 P.3d 48.
1. Intentional Injury
An injury occasioned by the willful intention of the injured employee to bring about injury to himself or herself, or another. 85 O.S. §312(1); [Same as the Act §11A(1)].
"[A]n intentionally violent act that produces a self-injury which the claimant expected or should have expected does not result in a compensable 'accidental injury' under the Oklahoma Workers' Compensation Act." Washington v. Anderson Wholesale, 2000 OK CIV APP 15, 996 P.2d 497 (evidence arguably established Claimant intentionally struck a glass door with her hands or fists injuring herself in a fit of rage).
In addition to the statutory defense, suicide presents the question of whether the death arises from the employment as a consequence of the original injury, and it may result in a compensable death claim under certain circumstances.
Mere suspicion that an employee intended to injure himself is not sufficient to sustain the burden of proving the affirmative defense of intentional injury. Claimant had asked a co-worker whether employer had workers' compensation. The co-worker also testified that the claimant was inside employer's warehouse while it was still dark, and claimant told her "if he fell off a stool he was going to sue." Denial of compensability by the trial court was reversed by the COCA holding "it is impermissible to ignore testimony that is consistent with itself, is not inherently improbable, and is unimpeached by other direct or circumstantial evidence." Pham v. Wuu Jau Company Inc., 2006 OK CIV APP 139, 146 P.3d 868.
2. Failure to Use Safety Device
An injury resulting directly from the willful failure of the injured employee to use a guard or protection against accident furnished for use pursuant to any statute or by order of the Commissioner of Labor. 85 O.S. §312(2); [Same as the Act §11A(2)].
In the case of Ashley v. Monsanto, supra, the worker was injured when he failed to use a mandatory lockout procedure and a valve crushed his arm. The COCA reiterated the long-standing rule that willfulness is "more than a mere act of the will, and carries with it the idea of premeditation, obstinacy, and intentional wrongdoing." Further, "Contributory negligence and willful failure to use a safety appliance must not be confused. The mere voluntary failure to use the same would constitute contributory negligence and to hold that such failure in itself barred relief would, in effect, preserve a defense abrogated by the act."
Momentary forgetfulness, inattention or bad judgment will not support an affirmative defense under this section. Cox Communications v. Williamson,2008 OK CIV APP 83, 194 P.3d 778.
3. Voluntary Intoxication
An injury which occurs when an employee's use of illegal drugs or chemicals or alcohol is the major cause of the injury or accident. The employee shall prove by a preponderance of the evidence that the use of drugs, chemicals or alcohol was not the major cause of the injury or accident. For the purposes of this paragraph, post-accident alcohol or drug testing results shall be admissible as evidence. A public or private employer may require an employee to undergo drug or alcohol testing if the employee has sustained an injury while at work. For purposes of workers' compensation, no employee who tests positive for the presence of substances defined and consumed pursuant to Section 465.20 of Title 63 of the Oklahoma Statutes, alcohol, illegal drugs, or illegally used chemicals, or refuses to take a drug or alcohol test required by the employer, shall be eligible for such compensation.
85 O.S. §312(3).Law in effect before 08/26/11.
An injury which occurs when an employee is using substances defined and consumed pursuant to Section 465.20 of Title 63 of the Oklahoma Statutes, or is using or abusing alcohol or illegal drugs, or is illegally using chemicals; provided, this paragraph shall only apply when the employee is unable to prove by a preponderance of the evidence that the substances, alcohol, illegal drugs, or illegally used chemicals were not the proximate cause of the injury or accident. For the purposes of this paragraph, post-accident alcohol or drug testing results shall be admissible as evidence. 85 O.S. §11A(3).
When the defense of intoxication is raised as an issue, the trial court must make an appropriate finding of fact "on which to predicate an order awarding or denying a claim for compensation." Flint Construction Company v. Woods, 1967 OK 51, 425 P.2d 995.
Alcohol withdrawal seizure is an idiopathic condition that standing alone does not come within the 85 O.S.2001 §11(A)(3) intoxication defense. Pemberton Chevrolet, Inc. v. Harger, 2005 OK CIV APP 70, 120 P.3d 892.
Newquist v. Hall Building Products, Inc., 2004 OK CIV APP 92, 100 P.3d 1060 (alleged marijuana use with discussion of statute).
Gilley v. Central Distributors, Inc., 1999 OK CIV APP 120, 993 P.2d 140.
Bayard Drilling v. Martin, 1999 OK CIV APP 67, 984 P.2d 530.
3.1. Admissibility of Test Results
Estes v. ConocoPhillips, Co., 2008 OK 21, 184 P.3d 518 (wrongful termination case discussing the Oklahoma Standards for Workplace Drug and Alcohol Testing Act).
Bell v. J.H. Rose Trucking Company, 1969 OK 38, 452 P.2d 141 (proof of intoxication in death case).
4. Horseplay
Except for innocent victims, an injury caused by a prank, horseplay, or similar willful or intentional behavior. 85 O.S. §312(4); [Same as the Act §11A(4)].
This defense has the effect of denying that the injury arose in the course of employment.
5. Injuries After Quitting
An injury occurring at a time when employment services were not being performed before the employee was hired or after the employment relationship was terminated. 85 O.S. §312(5).
For injuries occurring on or after 08/26/11, this new provision of the Code repeals a prior line of cases that created a narrow exception for employee injury after quitting.
6. Outside Course of Employment
An injury which occurs outside the course of employment. Employment shall be deemed to commence when an employee arrives at the employee's place of employment to report for work and shall terminate when the employee leaves the employee's place of employment, excluding areas not under the control of the employer or areas where essential job functions are not performed; provided, however, when the employee is instructed by the employer to perform a work-related task away from the employee's place of employment, the employee shall be deemed to be in the course of employment when the employee is engaged in the performance of job duties directly related to the task as instructed by the employer, including travel time that is solely related and necessary to the employee's performance of the task. Travel by a policeman, fireman, or a member of a first aid or rescue squad, in responding to and returning from an emergency, shall be deemed to be in the course of employment. 85 O.S. §312(6).