Arizona Supreme Court: Workers’ Compensation Covers On-The-Job Injuries
Even When Drugs Or Alcohol Are At Play
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The Arizona Supreme Court last month decided the long-anticipated case
Grammatico v. Industrial Commission, 117 P.3d 786, 458 Ariz. Adv.
Rep. 40 (2005). The Court analyzed a pair of Arizona statutes that provide
that a worker who tests positive for illegal drug use or alcohol impairment
and who is injured on the job may be denied workers’ compensation benefits.
The Arizona Court of Appeals previously issued contradicting opinions on
these statutes in Grammatico v. Industrial Commission, 208 Ariz.
10, 90 P.3d 211 (Ct.App. 2004), and Komalestewa v. Industrial Commission,
209 Ariz. 211, 99 P.3d 26 (Ct.App. 2004). The Supreme Court set out to resolve
the contradiction by consolidating the two cases.
|“... the constitutional system
for workers’ compensation requires the payment of benefits if a
necessary risk or danger of employment partially caused or contributed
to an industrial accident, without consideration of any fault by
the injured employee.”
The Supreme Court struck down both Arizona statutes as unconstitutional,
effectively eliminating drug and alcohol use as a factor that may be considered
to deny workers compensation benefits.
The On-the-Job Injuries
David Grammatico installed metal trim on buildings while standing on
forty-two inch stilts. He was injured on the job when he fell off the stilts
into a cluttered area on the job site. He broke his wrist and knee. Grammatico
admitted that he had smoked marijuana and ingested methamphetamines on the
two previous days, and a post-accident drug test confirmed the presence
of illegal drugs in his system.
Austin Komalestewa was injured on the job when he crawled under a broken
conveyer belt to try to fix it. His arm was caught in the drum and was seriously
injured. Blood tests at the hospital revealed the presence of alcohol in
his system, and a doctor later testified that his blood alcohol content
at the time of the accident was around 0.176 percent. Komalestewa admitted
that he had been drinking the night before the accident.
A.R.S. § 23-1021(D) provides that if an employer maintains a certified
drug-testing policy, “an employee’s injury... shall not be considered a
personal injury by accident arising out of and in the course of employment
and is not compensable... if the employee fails to pass... a drug test for
the unlawful use of any controlled substance,” unless the employee proves
that the use of an unlawful substance “was not a contributing cause of the
The Industrial Commission in Grammatico held that this provision
barred Grammatico’s claim because he failed to prove that his unlawful use
of drugs was not a contributing cause of his injuries. The Court of Appeals
set aside the decision and ruled that A.R.S. § 23-1021(D) violated the Arizona
Constitution because it attributed fault for an injury to the employee.
The Constitution, the Court held, established a strict “no fault” workers’
A.R.S. § 23-1021(C) provides that “An employee’s injury… shall not be
considered a personal injury by accident arising out of and in the course
of employment and is not compensable... if the impairment of the employee
is due to the employee’s use of alcohol... and is a substantial contributing
cause of the employee’s personal injury.”
In Komalestewa, the Industrial Commission denied the workers compensation
claim because the evidence showed that Komalestewa’s intoxication had contributed
to the accident. The Court of Appeals affirmed the claim denial, and rejected
the constitutional arguments that another panel of the court had adopted
The Supreme Court’s Ruling
The Supreme Court combined Grammatico and Komalestewa to
resolve the dispute. It focused on Article 18, Section 8 of the Arizona
Constitution, which established a “no-fault” system for workers’ compensation.
The Court determined that Article 18, Section 8 prohibited the legislature
from injecting fault into the workers’ compensation system.
According to the Supreme Court, an on-the-job accident that is truly
an accident (i.e., is not intentional) must be compensated. Although drug
use can certainly be seen as intentional, the Supreme Court explained: “[w]hile
alcohol consumption and illegal drug use shortly before work or during work
undeniably increase the chances of being injured on the job, it cannot be
unequivocally said that employees with alcohol or drugs in their systems
who sustain injuries have intentionally injured themselves.”
Ultimately, “the constitutional system for workers’ compensation
requires the payment of benefits if a necessary risk or danger of employment
partially caused or contributed to an industrial accident, without consideration
of any fault by the injured employee.” As a result, the Supreme Court concluded
that A.R.S. Sections 23-1021(C) and (D), were unconstitutional as applied
to Grammatico and Komalestewa.
How Grammatico Affects Employer Policies
|“The Supreme Court struck down
both Arizona statutes as unconstitutional, effectively eliminating
drug and alcohol use as a factor that may be considered to deny
workers compensation benefits.”
The Supreme Court’s decision, in effect, practically eliminated drug
or alcohol use as a factor that may be used to deny workers’ compensation
to an injured employee. While a case of actual on-the-job drug use or an
intentional injury may still warrant denial of workers’ compensation, the
lesson of Grammatico is that the Industrial Commission, and Arizona
courts, will err on the side of the employee with respect to injury causation.
This makes it all the more important for employers to have drug and alcohol
use policies that are clear, well-drafted, and strictly enforced. As a general
proposition, Arizona employers may still ban drug and alcohol use in the
workplace, may still require drug and alcohol testing, and may still “take
adverse employment action based on a positive drug test or alcohol impairment
test,” including termination of employment. A.R.S. § 23-493.05.
Despite its ruling, the Supreme Court noted that strong policy reasons
support the banning of drug and alcohol use at work, and it suggested that
a Constitutional Amendment may remove the barrier for future statutes that
are similar to A.R.S. Sections 23-1021 (C) and (D). A proposed amendment
has already been circulated in the legislature.
This Alert was written by
Michael C. Mason in the
Phoenix office. Please contact Mr. Mason 602.445.8535 or your Greenberg
Traurig liaison if you have any questions regarding the subject matter of
© 2005 Greenberg Traurig
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