Fox-Gouldv. Brooks Pharmacy, 4215 CRB-2-00-3 (May 23, 2001). The respondents bear the burden of proof when raising the affirmative defense of wilful and serious misconduct or intoxication. Liptak v.State, 176 Conn. 320 (1978); Federchuck v. UTC/Pratt Whitney, 15 Conn. Workers' Comp.Rev.Op. 476, 479, 2298 CRB-2-95-2 (Sept. 16, 1996). In order for the intoxication exclusion to apply, the respondents need not prove that intoxication was the sole proximate cause of the injury, but only that the intoxication was a substantial factor in causing the accident.
"By wilful misconduct is meant either intentional misconduct, that is, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to himself by him who is guilty of it." Federchuck v. UTC/Pratt Whitney, 15 Conn. Workers' Comp.Rev.Op. 476, 479-80, 2298 CRB-2-95-2 (Sept. 16, 1996), quoting Gonier v. Chase Companies, Inc., 97 Conn. 46, 55-56 (1921). This is both a factual matter and an affirmative defense, which must be proven by the party seeking to establish that such misconduct substantially caused the injury in question.
Kish v. Nursing Home Care, Inc., 47 Conn. App. 620, 627 (1998). The trier found that the decedent was intoxicated when he was struck by Mr. Phelan's car. Finding, ¶ D. The respondents bear the burden of proof when raising the affirmative defense of willful and serious misconduct or intoxication. Liptak v. State, 176 Conn. 320 1978);Federchuck v. UTC/Pratt Whitney, 15 Conn. Workers' Comp Rev. Op. 476, 479, 2298 CRB-2-95-2 (Sept. 16, 1996). The respondents met this burden here by providing the results of the toxicological analysis of the decedent's blood which showed his blood alcohol level to be .18%. Respondent's Exhibit 1.
Factual issues in workers' compensation cases are to be decided by the trial commissioner based on her evaluation of the weight of the evidence and the credibility of the testimony, including medical opinions. Federchuck v. UTC/Pratt Whitney, 15 Conn. Workers' Comp. Rev. Op. 476, 479, 2298 CRB-2-95-2 (Sept. 16, 1996); Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). This board has no authority on review to reassess a commissioner's evaluation of the evidence before her.
Finally, the applicability of § 31-284(a)'s prohibition of compensation "when the personal injury has been caused by the willful and serious misconduct of the injured employee or by his intoxication" is an affirmative defense that the employer must establish to avoid liability for a claim. Federchuck v. UTC/Pratt Whitney, 2298 CRB-2-95-2 (decided Sept. 16, 1996). The commissioner specifically found that the respondent had failed to present credible evidence that the claimant was intoxicated at the time of the accident, or that his consumption of "a couple cans of beer" on the morning of the incident caused the tree to fall on him. Although the evidence does show that the claimant had consumed some alcohol that morning, there is simply nowhere near enough evidence in the record to establish either prong of the intoxication defense (i.e. the intoxication itself, and its causal relationship to the accident) as a matter of law.
Willful misconduct is either intentional misconduct, or misconduct of a character evincing a reckless disregard of the potentially harmful consequences. Federchuck v. UTC/Pratt Whitney, 2298 CRB-2-95-2 (decided Sept. 16, 1996). Although the claimant was aware of the rule against picking up supplies for patients, there is no way she should have been expected to foresee in running such an errand the possibility of being struck by a car while walking across the street.