Workers' Comp Benefits for Injured Impaired Employees - Sacks Tierney, PA, Attorneys - Scottsdale Arizona Law Firm providing legal services in real estate, business and corporate law, construction, employment, family law, immigration and civil litigation

EMPLOYMENT LAW

September 2005

Workers' Comp Benefits for Injured

Impaired Employees

The Arizona Supreme Court strikes down a law that denied benefits for injured workers who were under the influence of alcohol or illegal drugs

The Arizona Supreme Court has settled the confusion over whether employees who are injured on the job while drug impaired or intoxicated may recover workers’ compensation benefits. The problem for employers is that the Court did not resolve the issue as employers or insurers wanted or, some argue, in a manner consistent with public policy.

For the last few years, Arizona law has provided that, if an employee gets hurt on the job and he or she tests positive for drugs or alcohol, the workers’ compensation insurer could deny benefits unless the employee could show that the drugs or alcohol did not contribute to the accident. Consistent with that exclusion, employers could earn a small discount on their workers’ compensation premiums if they had an acceptable drug testing program. The seemingly fair law gave employees another incentive to stay drug- and alcohol-free at work.

However, the Arizona Supreme Court struck down the law after ruling that it was unconstitutional as it applied to the facts of two cases involving injured workers.

Eligibility. To recover workers’ compensation benefits, an injured employee must show that a work-related risk caused the injury. Consequently, if an employee suffers a heart attack while at work, and the job had nothing to do with the heart attack, the employee cannot recover workers’ compensation benefits. If the job partially caused the heart attack because, for example, the employee was engaging in strenuous physical work at the time, the employee can recover benefits. Thus, if an injury has two causes – one work related and one not – the employee can recover workers’ compensation benefits.

That right is protected by the Arizona Constitution, and the law – A.R.S. § 23-1021(D) – that the Supreme Court just struck down was found to have run afoul of that right.

In one of the cases (Komalestewa v. Industrial Commission), an employee tried to repair a conveyor belt. His arm became entangled in the conveyor and was severely injured. His blood test revealed a blood alcohol content of 0.176%. The Court found that, while one cause of the injury (i.e., being under the influence of alcohol) was not work-related, the other cause (i.e., being required to crawl under the conveyor in order to repair it) was work-related, and, thus, he should be entitled to workers’ compensation benefits.

In the second case (Grammatico v. Industrial Commission), performing his job required the worker to walk on 42-inch drywall stilts. On the day of his injury, he worked most of his shift, walking on the stilts and navigating his way through a cluttered job site. Near the end of his shift, he fell and injured his wrist and knee. He tested positive for marijuana, amphetamine and methamphetamine.

The Court found it significant that he was able to work most of his shift without injury and concluded that the drug use was a comparatively minor cause of the fall. The fall was clearly related to the particular risks of the employment: walking in stilts in a cluttered work area.

Fault. The Court also discussed the concept of “fault” in the context of workers’ compensation; that is, that there is no concept of fault in workers’ compensation law.

Much like in divorce, the proof of fault, or the lack of it, has nothing to do with the recovery of benefits. Therefore, even if it was the employee’s “fault” that he or she was injured on the job because of alcohol impairment, he or she is still eligible for workers’ compensation benefits.

The “no fault” concept is a difficult one because much of our legal system is based on a concept of negligence, in cases ranging from automobile accidents to product liability. While it seems fair to place blame on someone who is so foolish as to work while impaired, blame is entirely contrary to the entire construct of workers’ compensation law. The Court noted that many work-related injuries are caused by cell phone use while driving, yet the legislature did not seek to deny workers’ compensation benefits for such conduct.

Drug testing. In light of this ruling, an employer might wonder whether there is any point to having drug and alcohol testing programs?

The answer is “yes.” Even if the workers’ compensation insurer has to pay benefits to the drug-impaired injured worker, the employer can still terminate the employee for violating company policy. The employer simply must have and enforce a clear policy that provides for termination in such instances. Otherwise, the terminated employee could have a claim that he or she was terminated in retaliation for filing a workers’ compensation claim.

These materials are designed to provide general information prepared by professionals in regard to the subject matter covered. It is provided with the understanding that the author is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, these materials should not be utilized as a substitute for professional service in specific situations. If legal advice or other expert assistance is required, the service of a professional should be sought.