ADJ14574913 · August 31, 2026

Applicant failed to prove employer negligence; the employer was entitled to a credit for the civil recovery amount because the accident was caused by the speed of the driver, not intoxication or employer negligence.

From the decision · page 5defendant should be precluded from seeking a credit either partially, or in full, due to applicant’s allegation of employer negligence. Applicant argues on reconsideration that employer negligence was proven because the employer was aware of “Thirsty Thursdays” and failed to provide applicant a safe method of transport. (Petition for Reconsideration, p. 6, lines 25-28.) We agree with the WCJ that applicant has not established employer negligence solely based upon these allegations and thus, the employer is entitled to full credit. There is nothing in the record establishing that the male club member who was driving the car at the time of the accident was intoxicated. No police report is in evidence. Applicant did not testify that the driver had been drinking. According to applicant’s testimony the driver’s speed was the cause of the accident. It is unclear what connection “Thirsty Thursdays” has in this case as there is no evidence that intoxication was involved. Next, and even if we assume that the driver was intoxicated, applicant seeks to impart negligence upon the employer based upon the employer’s furnishing of alcohol to the driver. However, such civil liability is generally precluded under California law, and applicant argues no exception to the general exclusion. (Bus. & Prof., § 25602(b).) Accordingly, we deny reconsideration.

Applicant did not prove employer negligence; no evidence of intoxication by the driver was presented.

Favours Defendant prevailed

This fact led to the denial of applicant's claim that employer negligence barred the credit for the civil recovery.

From the decision · page 5defendant should be precluded from seeking a credit either partially, or in full, due to applicant’s allegation of employer negligence. Applicant argues on reconsideration that employer negligence was proven because the employer was aware of “Thirsty Thursdays” and failed to provide applicant a safe method of transport. (Petition for Reconsideration, p. 6, lines 25-28.) We agree with the WCJ that applicant has not established employer negligence solely based upon these allegations and thus, the employer is entitled to full credit. There is nothing in the record establishing that the male club member who was driving the car at the time of the accident was intoxicated. No police report is in evidence. Applicant did not testify that the driver had been drinking. According to applicant’s testimony the driver’s speed was the cause of the accident. It is unclear what connection “Thirsty Thursdays” has in this case as there is no evidence that intoxication was involved. Next, and even if we assume that the driver was intoxicated, applicant seeks to impart negligence upon the employer based upon the employer’s furnishing of alcohol to the driver. However, such civil liability is generally precluded under California law, and applicant argues no exception to the general exclusion. (Bus. & Prof., § 25602(b).) Accordingly, we deny reconsideration.

Labor Code section 5909

Labor Code section 5909

Governs the timing and notice requirements for petitions for reconsideration.

From the decision · page 2Up through July 1, 2024, petitions for reconsideration were subject to former Labor Code section 5909, which provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) During the period from July 2, 2024, through June 30, 2026, petitions for reconsideration were subject to former Labor Code section 5909, which stated in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Civ. Code, § 3517

Civ. Code, § 3517

Prevents an employer from profiting from its own wrong in credit proceedings.

From the decision · page 4(Transcript of Proceedings, February 12, 2026, p. 4, lines 13-21.) Next, we address the question of whether defendant is entitled to a credit in this matter. One of the central objectives in a credit proceeding is “to allocate responsibility equitably between a negligent employer and a third-party tortfeasor, and thereby prevent the employer from taking ‘advantage of his own wrong’ (Civ. Code, § 3517).” (Associated Construction and Engineering Co., v. Workers’ Comp. Appeals Bd. (Cole) (1978) 22 Cal.3d 829, 833, 834 [43 Cal.Comp.Cases 1333] quoting Witt v. Jackson (1961) 57 Cal.2d 57 [26 Cal.Comp.Cases 252] [allowing a negligent employer reimbursement would permit it to profit from its own wrong and should be denied].) In Martinez v. Associated Engineering & Construction Company (1979) 44 Cal.Comp.Cases 1012, 1021-1022 (Appeals Board en banc), we held that a defendant has the burden of proof to establish its right to credit by showing that there was a settlement of a third- party civil case and that it paid benefits.

Bus. & Prof. Code, § 25602(b)

Bus. & Prof. Code, § 25602(b)

Generally precludes civil liability for furnishing alcohol to a driver in this context.

From the decision · page 5defendant should be precluded from seeking a credit either partially, or in full, due to applicant’s allegation of employer negligence. Applicant argues on reconsideration that employer negligence was proven because the employer was aware of “Thirsty Thursdays” and failed to provide applicant a safe method of transport. (Petition for Reconsideration, p. 6, lines 25-28.) We agree with the WCJ that applicant has not established employer negligence solely based upon these allegations and thus, the employer is entitled to full credit. There is nothing in the record establishing that the male club member who was driving the car at the time of the accident was intoxicated. No police report is in evidence. Applicant did not testify that the driver had been drinking. According to applicant’s testimony the driver’s speed was the cause of the accident. It is unclear what connection “Thirsty Thursdays” has in this case as there is no evidence that intoxication was involved. Next, and even if we assume that the driver was intoxicated, applicant seeks to impart negligence upon the employer based upon the employer’s furnishing of alcohol to the driver. However, such civil liability is generally precluded under California law, and applicant argues no exception to the general exclusion. (Bus. & Prof., § 25602(b).) Accordingly, we deny reconsideration.

Martinez v. Associated Engineering & Construction Company (1979) 44 Cal.Comp.Cases 1012

Martinez v. Associated Engineering & Construction Company (1979) 44 Cal.Comp.Cases 1012

Defendant has burden to prove right to credit by showing settlement of third-party civil case and payment of benefits.

From the decision · page 4(Transcript of Proceedings, February 12, 2026, p. 4, lines 13-21.) Next, we address the question of whether defendant is entitled to a credit in this matter. One of the central objectives in a credit proceeding is “to allocate responsibility equitably between a negligent employer and a third-party tortfeasor, and thereby prevent the employer from taking ‘advantage of his own wrong’ (Civ. Code, § 3517).” (Associated Construction and Engineering Co., v. Workers’ Comp. Appeals Bd. (Cole) (1978) 22 Cal.3d 829, 833, 834 [43 Cal.Comp.Cases 1333] quoting Witt v. Jackson (1961) 57 Cal.2d 57 [26 Cal.Comp.Cases 252] [allowing a negligent employer reimbursement would permit it to profit from its own wrong and should be denied].) In Martinez v. Associated Engineering & Construction Company (1979) 44 Cal.Comp.Cases 1012, 1021-1022 (Appeals Board en banc), we held that a defendant has the burden of proof to establish its right to credit by showing that there was a settlement of a third- party civil case and that it paid benefits.

Applicant's testimony that the driver was speeding at 110 miles per hour and no evidence of intoxication was presented.

From the decision · page 5defendant should be precluded from seeking a credit either partially, or in full, due to applicant’s allegation of employer negligence. Applicant argues on reconsideration that employer negligence was proven because the employer was aware of “Thirsty Thursdays” and failed to provide applicant a safe method of transport. (Petition for Reconsideration, p. 6, lines 25-28.) We agree with the WCJ that applicant has not established employer negligence solely based upon these allegations and thus, the employer is entitled to full credit. There is nothing in the record establishing that the male club member who was driving the car at the time of the accident was intoxicated. No police report is in evidence. Applicant did not testify that the driver had been drinking. According to applicant’s testimony the driver’s speed was the cause of the accident. It is unclear what connection “Thirsty Thursdays” has in this case as there is no evidence that intoxication was involved. Next, and even if we assume that the driver was intoxicated, applicant seeks to impart negligence upon the employer based upon the employer’s furnishing of alcohol to the driver. However, such civil liability is generally precluded under California law, and applicant argues no exception to the general exclusion. (Bus. & Prof., § 25602(b).) Accordingly, we deny reconsideration.