{"id":187,"date":"2011-01-15T14:04:15","date_gmt":"2011-01-15T21:04:15","guid":{"rendered":"https:\/\/www.triplespacedagain.com\/wordpress\/?p=187"},"modified":"2011-07-01T14:04:35","modified_gmt":"2011-07-01T20:04:35","slug":"what-shall-we-do-with-a-drunken-worker","status":"publish","type":"post","link":"https:\/\/www.triplespacedagain.com\/wordpress\/?p=187","title":{"rendered":"What shall we do with a drunken worker?"},"content":{"rendered":"

This was submitted to the Albuquerque Journal in response to a Journal news story and published in January 2011.<\/em><\/p>\n

The Journal\u2019s latest report of an apparently outrageous workers’ compensation case touches on a genuine controversy in workers’ compensation (\u201cDrunken Worker Gets Work Comp Benefits,\u201d Journal, Tuesday, Dec. 28, 2010).\u00a0 The Jan. 3 editorial goes further in demanding change.<\/p>\n

Workers’ compensation is one of the most complicated areas of law in our legal system.\u00a0\u00a0 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.\u00a0 The drug and alcohol issue is one of a long list of difficult areas.<\/p>\n

This has been a hot-button issue for decades.\u00a0\u00a0 Employers are infuriated that claims are not automatically thrown out when workers are drunk or stoned.<\/p>\n

There is, however, an argument on the other side.\u00a0 (Don\u2019t shoot me; I\u2019m just the messenger.)\u00a0 Work comp is a no-fault system.\u00a0 As long as the accident is work-related, the worker is entitled to medical and indemnity benefits.\u00a0 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.\u00a0\u00a0 That\u2019s what a no-fault system is.<\/p>\n

The counterbalance to the no-fault doctrine is \u201cexclusive remedy\u201d protection for employers.\u00a0 Workers covered by workers’ compensation are barred from suing their employers under general liability.\u00a0 That is a profound legal protection for employers and is the single biggest reason why employers support the work comp system.\u00a0 Arguably, exclusive remedy protection is a factor in keeping our entire economy afloat.\u00a0\u00a0 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\u2019t like.<\/p>\n

The no-fault and exclusive remedy doctrines balance each other. When workers are penalized for being intoxicated, that is a variation from\u00a0 the no-fault principle.\u00a0 If you try to change the law regarding no-fault, you run the risk of undermining exclusive remedy.<\/p>\n

Some history:\u00a0 Until the 1990 reform of New Mexico workers’ compensation, the only provisions for drug and alcohol were the \u201call or nothing\u201d provisions.\u00a0 If the worker\u2019s intoxicated condition was the sole cause of the accident, the claim could be denied entirely.\u00a0 There was no middle ground.<\/p>\n

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.\u00a0\u00a0 Labor leaders argued that a worker\u2019s family should not be penalized because the worker made a mistake.\u00a0\u00a0 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.<\/p>\n

The 10-percent provision was enacted in 2001 within a package of amendments.\u00a0 This provision says that if drugs or alcohol are a partial factor, indemnity benefits can be reduced by 10 percent.\u00a0 It was modeled on the \u201csafety device\u201d 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.\u00a0 The bill originated with the Johnson administration\u2019s members of the Workers\u2019 Compensation Advisory Council.\u00a0 Their intention was to base the penalty simply on evidence of use of drugs or alcohol, with no need to prove causation.\u00a0 On its way through the process, the language was garbled in several ways, leading to a confusing standard of partial causation and other complications.<\/p>\n

There has been talk recently of legislation to clarify the confusion — not to change the standard but to make it simpler to implement.\u00a0\u00a0 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.\u00a0 It is easy to imagine that two or more rival bills will appear.\u00a0 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

This was submitted to the Albuquerque Journal in response to a Journal news story and published in January 2011. The Journal\u2019s latest report of an apparently outrageous workers’ compensation case touches on a genuine controversy in workers’ compensation (\u201cDrunken Worker … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4,5],"tags":[],"class_list":["post-187","post","type-post","status-publish","format-standard","hentry","category-articles","category-workers-comp"],"_links":{"self":[{"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=\/wp\/v2\/posts\/187","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=187"}],"version-history":[{"count":2,"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=\/wp\/v2\/posts\/187\/revisions"}],"predecessor-version":[{"id":189,"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=\/wp\/v2\/posts\/187\/revisions\/189"}],"wp:attachment":[{"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=187"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=187"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.triplespacedagain.com\/wordpress\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=187"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}