Paganelis v. Industrial Commission

JUSTICE RYAN, concurring:

I concur with the decision of the majority. However, in my opinion, whether the employee was in the course of his employment when he was injured was, in this case, a question of law and not of fact. The opinion notes Professor Larson’s statement that “[v]oluntary intoxication which renders an employee incapable of performing his work is a departure from the course of employment.” (1A A. Larson, The Law of Workmen’s Compensation §34.00, at 6 — 64 (1985).) This rule has been accepted by this court, which has stated that intoxication which does not incapacitate the employee from following his occupation is not sufficient to defeat recovery. District HI, International Association of Machinists & Aerospace Workers v. Industrial Comm’n (1980), 79 Ill. 2d 544, 558 ; M & M Parking Co. v. Industrial Comm’n (1973), 55 Ill. 2d 252, 256 .

I have no quarrel with the application of this rule to the usual employment activities. If the employee could perform the work associated with his duties, then, under the rule, recovery is and should be allowed, even though the employee had consumed a considerable amount of alcohol. However, when the legislature has enacted a statute making it illegal to drive an automobile with an alcohol concentration in the blood above a certain level, and the employee had an alcohol concentration in his blood above that, and was driving an automobile as a part of his employment, then I would hold that the employee had departed from the course of his employment. He could no longer legally perform his duties of driving an automobile. I would, therefore, hold that he was legally incapacitated.

It is a Class A misdemeanor to drive a motor vehicle with an alcohol concentration in one’s blood of 0.10% or more. (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501.) Artiele V of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 500 et seq.) and article II of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 6 — 201 et seq.) express a strong public policy of this State against driving a motor vehicle with alcohol concentration in one’s blood in excess of 0.10% or driving a motor vehicle while under the influence of alcohol. Conforming to this public policy, I would hold that a person who, while in the course of his employment, operates a motor vehicle in violation of these statutory provisions, and is injured in an accident while doing so, has departed from the course of his employment and is not entitled to recover under the Workers’ Compensation Act.