What shall we do with a drunken worker?

This was submitted to the Albuquerque Journal in response to a Journal news story and published in January 2011.

The Journal’s latest report of an apparently outrageous workers’ compensation case touches on a genuine controversy in workers’ compensation (“Drunken Worker Gets Work Comp Benefits,” Journal, Tuesday, Dec. 28, 2010).  The Jan. 3 editorial goes further in demanding change.

Workers’ compensation is one of the most complicated areas of law in our legal system.   It is a complex maze which attempts to micro-manage the behavior of injured workers, uninjured workers, employers, health care providers, insurers, self-insurers, attorneys and others in a precarious balance that is constantly in danger of falling apart.  The drug and alcohol issue is one of a long list of difficult areas.

This has been a hot-button issue for decades.   Employers are infuriated that claims are not automatically thrown out when workers are drunk or stoned.

There is, however, an argument on the other side.  (Don’t shoot me; I’m just the messenger.)  Work comp is a no-fault system.  As long as the accident is work-related, the worker is entitled to medical and indemnity benefits.  A worker who is injured because he was careless or inattentive is entitled to benefits under the same formulas as a worker who was doing everything right.   That’s what a no-fault system is.

The counterbalance to the no-fault doctrine is “exclusive remedy” protection for employers.  Workers covered by workers’ compensation are barred from suing their employers under general liability.  That is a profound legal protection for employers and is the single biggest reason why employers support the work comp system.  Arguably, exclusive remedy protection is a factor in keeping our entire economy afloat.   Employer lobbying groups, who understand the value of exclusive remedy, have gone to great lengths to safeguard it — including putting up with many other provisions they don’t like.

The no-fault and exclusive remedy doctrines balance each other. When workers are penalized for being intoxicated, that is a variation from  the no-fault principle.  If you try to change the law regarding no-fault, you run the risk of undermining exclusive remedy.

Some history:  Until the 1990 reform of New Mexico workers’ compensation, the only provisions for drug and alcohol were the “all or nothing” provisions.  If the worker’s intoxicated condition was the sole cause of the accident, the claim could be denied entirely.  There was no middle ground.

The 1990 workers’ compensation task force, which crafted a major overhaul of the statute, battled over the drug and alcohol issue but could not reach agreement.   Labor leaders argued that a worker’s family should not be penalized because the worker made a mistake.   To prevent this from unraveling the whole reform, the task force left the old provision in place (for policy wonks, paragraph 52-1-11 of the statute) and created a follow-up task force, which met for two years, struggled valiantly and arrived at a recommendation that nobody else liked, so it was never even introduced as legislation.

The 10-percent provision was enacted in 2001 within a package of amendments.  This provision says that if drugs or alcohol are a partial factor, indemnity benefits can be reduced by 10 percent.  It was modeled on the “safety device” provision that reduces or increases benefits if a worker fails to use, or an employer fails to provide, safety devices — also a variation from the no-fault principle.  The bill originated with the Johnson administration’s members of the Workers’ Compensation Advisory Council.  Their intention was to base the penalty simply on evidence of use of drugs or alcohol, with no need to prove causation.  On its way through the process, the language was garbled in several ways, leading to a confusing standard of partial causation and other complications.

There has been talk recently of legislation to clarify the confusion — not to change the standard but to make it simpler to implement.   As far as I know, no consensus language has been agreed to by the business, labor, insurance and attorney groups who participate in work comp public policy discussions.  It is easy to imagine that two or more rival bills will appear.  Interest groups will emerge who will oppose changing the standard, as they have been doing successfully for decades, and whatever comes out of the legislative stew may or may not be an improvement.

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