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Recent Developments from Around the States
Statutes Restricting Workers' Compensation Benefits
A full panel of the Arizona Supreme Court has held that two state statutes, which bar the recovery of workers' compensation benefits by employees who test positive for drugs or alcohol and cannot prove that their use of these substances did not contribute to the accident, are unconstitutional. Grammatico v. Industrial Comm'n, 2005 WL 1896248 (Ariz. Aug. 10).
In making this determination, the Arizona Supreme Court reviewed two separate cases, Grammatico v. Industrial Comm'n and Komalestewa v. Industrial Comm'n, involving the application of Arizona Revised Statutes Sections (ARS) 23-1021(D) and 23-1021(C) and Article 18, Section 8 of the Arizona Constitution. Article 18, Section 8 of the Arizona Constitution states that workers are entitled to compensation if they are injured in “any accident arising out of and in the course of … employment.” Section 8 is applicable to any injury that is “caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk or danger inherent in the nature thereof, or by failure of such employer or its agents or employee or employees to exercise due care.” Under A.R.S. 23-1021(D), 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 employee's injury.” A.R.S. 23-1021(C) similarly provides that “[a]n 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,” meaning that it is anything more than a slight contributing cause (' 23-1021(H)(2)).
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