CREATIVE MANUFACTURING, INC.; JOSEF ARMRUSTER, individually and as MANUFACTURING, INC., UNINSURED EMPLOYERS BENEFIT TRUST FUND, BALDOMERO NAVA, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIABALDOMERO NAVA, Applicant,vs.CREATIVE MANUFACTURING, INC.; JOSEF ARMRUSTER, individually and asMANUFACTURING, INC., UNINSURED EMPLOYERS BENEFIT TRUST FUND, Defendant(s).Case No. ADJ4603604 (LAO 0727680)OPINION AND ORDER GRANTING RECONSIDERATION AND DECISION AFTER RECONSIDERATION Applicant seeks reconsideration of the Finding and Order of August 20, 2009, in which the workers’ compensation judge (WCJ) found that applicant’s claim is not compensable because he was intoxicated at the time of the injury. Applicant contends, in substance, that defendant cannot establish the affirmative defense of intoxication because its evidence is inadmissible under Labor Code section 5402, that defendant’s assertion of the defense is precluded by its prior stipulation to industrial injury, that even in absence of the stipulation and the presumption of compensability under Labor Code section 5402, defendant’s evidence does not establish the intoxication defense, and that in denying applicant’s claim, the WCJ acted without authority. The Uninsured Employers Benefits Trust Fund (UEBTF) filed an answer. The WCJ submitted a Report and Recommendation. We adopt and incorporate the “Statement of the Case” in the Report, which describes the relevant facts. We do not adopt or incorporate the remainder of the Report. The “Stipulations and Issues” of the trial hearing of July 21, 2009 reflect that applicant claims he sustained industrial injury on August 7, 1995 to his right hand, right shoulder, arm, , neck, back, internal system and psyche. The record also includes a notation that “the injury did occur; however, the defendant is raising an intoxication defense.”1 Relevant to the intoxication defense, the applicable legal principles
