(dissenting).
I respectfully dissent.
First, it is questionable whether this employee was voluntarily intoxicated. He was, in effect, ordered to accompany his boss to a tavern where the boss kept him all afternoon, buying him drinks and discussing business. (The Workers’ Compensation Court of Appeals acknowledged that the employer “required that employees be subjected to the use of alcohol in the performance of their employment tasks.”) The law should not be interpreted to apply to the involuntary intoxication of an employee by his employer. This would have the effect of failing to discourage an employer from feeding an employee liquor on the job.
Furthermore, I do not think the court’s finding on proximate cause should be affirmed. The compensation judge awarded compensation on the ground that intoxication was not the proximate cause of the injury. The court of appeals reversed on a split decision, finding that the only reasonable conclusion was that intoxication led to the injury. There is no evidence except for blood tests that employee was intoxicated and there is no direct evidence that the intoxication was the proximate cause of the injury. There could have been a number of causes of the injury, which we will not know because of the lapse of the memory of the injured party due to his injury.
It seems to me that the employer should have the burden of coming forward with evidence to prove that intoxication was the sole proximate cause. In this case, the burden was not sustained. The employer only proved intoxication — proximate cause was presumed on the basis of this fact. I do not think it is consistent with the purpose or the language of the statute for the employer to carry his burden of proof on this issue by such a “presumption” of proximate cause.
Accordingly, I would reverse the court of appeals and reinstate the finding of the compensation judge.