Section 287.120 6.(1) provides in part:
"6. (1) Where the employee fails to obey any rule or policy adopted by the employer relating to the use of alcohol of nonprescribed controlled drugs in the workplace, which rule or policy has been kept posted in a conspicuous place on the employer?s premises, the compensation and death benefit provided for herein shall be reduced fifteen percent if the injury was sustained in conjunction with the use of alcohol or nonprescribed controlled drugs; provided, that it is shown that the employee had actual knowledge of the rules or policy so adopted by the employer and, provided further that the employer had, prior to the injury, made a diligent effort to inform the employee of the requirement to obey any reasonable rule or policy adopted by the employer"
In Tanner v Crest Foam Corporation, 2003 WL 22533648 (Mo. App. S.D. 2003), Court of Appeals reversed an award of death benefits to surviving spouse of employee where the vehicular accident, even though occurring in employee?s sales territory, was the result of an alcohol related social dalliance by employee with friend, and thus proved injury did not arise out of or in the course of employment.
In Aldredege v Gas Distribution Contractors, Inj. No. 00-110534 (LIRC) 2002, reduction of benefits due to alcohol use denied, testimony showing claimant drank beer with his supervisor on a number of occasions, after work, driving home in company vehicles. Commission held employer had actual knowledge of employee?s violation of employer?s alcohol policy and took no disciplinary action. Alcohol policy not enforced in this case. Failure to follow Section 287.120.6(2)(a) removes case from statutory proximate cause analysis. 15% reduction allowed.
In Smith v District II A and B, et. al., 59 S.W.3d 558, (W.D. 2001), a Labor Union employee went to another city on union business, visiting a casino with management representatives to discuss mutual problems. The employee stayed at the casino when the others left, but was held to have returned to scope and course of his employment when he left the casino to return to his hotel. He had BAC (Blood Alcohol Content) of .165 after the accident, but the Court held that he was "not so drunk as to be a "total ___"." The ALJ was reversed, the Commission holding that pain medication would have affected the responses at the E.R., and a later recall of memory could explain it.
In Bowman v Thomas Industrial Coating, (LIRC) 7/24/00 (ALJ Denigan), (On appeal, E.D. 78299), Intoxication defense denied noting lack of blood studies with ETOH level or evidence of intoxication behavior, even though claimant had purchased 30-pack shortly before falling 36 feet.
In Brockmeyer v Stieferman Bros. & Storage, 34 S.W.3d 236 (Mo.App. E.D. 2000), an employee?s employer could assert affirmative defense of alcohol use of driver driving under the influence, even though the posted alcohol policy prohibited alcoholic beverages on the premises, but did not prohibit the use of alcohol while driving the employer?s vehicles. This was in large part based upon claimant?s knowledge of the Department of Transportation (DOT) certification prohibiting driving while intoxicated, which became a condition of the employee?s employment.
(A Federal regulation bolstering prohibition of the use of alcohol, as one sees, can be very important.)
In Higgins v D.W.F. Wholesale Florist Co., 14 S.W.3d 286 (Mo.App. W.D. 2000), claimant, an assistant manager, had an auto accident returning from a business trip, the blood alcohol being .24, causing a citation for driving while intoxicated at the scene of the accident she caused. Claimant admitted the awareness of signing an earlier acknowledgmen