Both the Workers’ Compensation Board and the Appellate Division agreed that the injuries did not “arise out of and in the course of employment.” See Workers’ Compensation Law § 10. Whether a particular activity is compensable is a factual issue for the Board to resolve (See Matter of Pedro v. Village of Endicott, 762 N.Y.S.2d 177 , lv. dismissed 775 N.Y.S.2d 242, , lv. denied 780 N.Y.S.2d 312  ), “with the test being whether the activity is both reasonable and sufficiently work related under the circumstances” (Matter of Marotta v. Town & Country Elec., Inc., 857 N.Y.S.2d 340 ; Matter of Pedro v. Village of Endicott, 762 N.Y.S.2d 177; Matter of Grady v. Dun & Bradstreet, 696 N.Y.S.2d 258 ).
Although the employer did not raise a defense of ‘intoxication,’ our review of the case does not indicate that such a defense would be successful. An employee is not entitled to benefits if his injuries are caused solely by his intoxication. This defense is largely illusory, though, because of the word ‘solely.’ If the claimant can show another contributing factor – any contributing other factor – the injuries will be found compensable. For example, if the claimant can show the intoxication along with another factor, such as fatigue caused the injury, the fact that the claimant was drunk at the time of the accident will not be a bar to compensation – the claimant will likely be successful arguing that the fatigue contributed tot he accident and resultant injury and the matter will likely be found compensable. In fact, there is a statutory presumption that the intoxication was not he sole factor in any injury.
In this case, there was eyewitness testimony that Maher drank “five beers over four hours” – not enough to establish her intoxication. However, diligent investigation should have obtained the blood-alcohol results from the Emergency Room visit so that the defense could have been explored.
Case: Maher v. NYS Div. of Budget, — N.Y.S.2d —-, 2010 WL 1610380, App. Div. 3 Dept. Decided April 22, 2010.