Legislature(1999 - 2000)
04/15/2000 02:50 PM Senate L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 422-WORKERS' COMPENSATION: DRUGS & ALCOHOL
CHAIRMAN MACKIE announced the committee would consider HB 422.
REPRESENTATIVE NORM ROKEBERG, sponsor of HB 422, explained that
this measure is a simple bill that changes the standards of the
workers' compensation statutes regarding intoxication and use of
drugs. It changes the standard from intoxication to consumption of
alcoholic beverages and from the use of drugs to being under the
influence of drugs. The intent of HB 422 is to make people more
responsible for their actions and allow companies to establish a
zero tolerance policy that can be reflected in the determination of
the workers' compensation board. The current law as interpreted by
the board has resulted in payment of benefits even though in
certain instances the workers had been drinking alcohol. HB 422
gives employers a better standard by which to evaluate the ability
to deny benefits to workers. In other words, a person who violates
a zero tolerance policy will not receive benefits. HB 422 does not
shift the burden of proof; the employer must still have a
preponderance of the evidence and prove the proximate cause of the
injury was alcohol or drug use.
SENATOR DONLEY noted there can be more than one proximate cause of
an incident and adding consumption as a proximate cause does not
seem appropriate at all if the other proximate causes were the
responsibility of the employer.
REPRESENTATIVE ROKEBERG said he agrees with Senator Donley if other
proximate causes exist.
SENATOR DONLEY said the bill says if one of the proximate causes is
drinking then the claim is cut off, even if there are other
proximate causes.
REPRESENTATIVE ROKEBERG said that is correct. If the employee had
been drinking and the drinking was the proximate cause of the
injury, the employee is cut off.
SENATOR DONLEY repeated if someone negligently backed up and dumped
a load of dirt on top of the employee another proximate cause would
exist.
REPRESENTATIVE ROKEBERG replied the preponderance standard is there
for proximate cause. The employer would have to prove that alcohol
or drug use was the proximate cause of the injury.
SENATOR DONLEY asked where the preponderance standard is located.
REPRESENTATIVE ROKEBERG said it is in case law.
SENATOR DONLEY stated this bill will change the statute.
REPRESENTATIVE ROKEBERG maintained that proximate cause is still
there.
SENATOR DONLEY indicated the preponderance standard is not in the
statute and the bill changes the standard from intoxication to
alcohol use.
REPRESENTATIVE ROKEBERG stated language on page 2, line 9, reads,
"the injury was not proximately caused by," which is where the
proof comes in. The only change is whether the employee was
completely intoxicated or was using drugs. The employee's legal
rights are protected if alcohol or drug use was not the proximate
cause in the injury.
SENATOR DONLEY said he thinks the statute makes sense as is.
Intoxication is a different standard than mere consumption.
Intoxication as an element of the cause makes sense.
REPRESENTATIVE ROKEBERG agreed that it lowers that standard but it
does not change the proof requirements for proximate cause.
Number 449
CHAIRMAN MACKIE stated the bill says consumption or use versus
intoxication or under the influence.
REPRESENTATIVE ROKEBERG said that is correct and clarified that the
proximate cause standard of proof remains so the proof must be
based on a preponderance of evidence according to the court rules.
CHAIRMAN MACKIE asked if, under current statute, the injured
employee would have to prove to the board that the proximate cause
was not intoxication.
REPRESENTATIVE ROKEBERG said the proximate cause issue is separate
from the use issue. He gave the following example. In the BB case
before the Workers' Compensation Board, an employee on the North
Slope went through a guard gate. Other people smelled alcohol on
the employee's breath. The company has a zero tolerance policy.
The employee was driving on a straight road, swerved, flipped the
truck and injured himself. A bottle of whiskey was found in the
truck. He was taken back to the camp and examined by a doctor but
a blood alcohol test was not taken for hours. The Board concluded
that the company could not prove the employee was intoxicated even
though the Board said in its findings he had been drinking alcohol.
The Board determined the proximate cause was the truck flipping.
CHAIRMAN MACKIE noted a person cannot be charged with drinking
while intoxicated unless one can prove that person was intoxicated
beyond the legal limit. He pointed out that using Representative
Rokeberg's example, if an employee had one drink and flipped a
truck, the employee would not be eligible for workers' compensation
benefits under HB 422.
REPRESENTATIVE ROKEBERG said that is where the proximate cause
comes in because the employer would have to prove that the use of
alcohol was the proximate cause of the accident.
SENATOR DONLEY noted that is what he finds objectionable about the
bill. He said dominant or substantial causes are easier to
understand. If liquor was the dominant cause of the accident, he
could understand the denial of benefits but that is why he thinks
intoxication is a better standard. HB 422 is based on the fact
that alcohol consumption was in the chain of events. Preponderance
is an evidentiary standard, not a cause standard, therefore,
finding alcohol use to be a proximate cause by a preponderance of
the evidence does not mean that the proximate cause was the
dominant cause of the event.
REPRESENTATIVE ROKEBERG stated a preponderance of the evidence
standard is used by the Workers' Compensation Board.
CHAIRMAN MACKIE said for someone to be entitled to a workers'
compensation claim, that person would have to show that the
consumption of alcoholic beverages did not cause the injury while
under current law the person would have to prove he or she was not
intoxicated.
REPRESENTATIVE ROKEBERG said that is the distinction. He pointed
out if an employee had a cocktail with lunch and then had an
accident during work hours, the scope of duties of the employee
will come into play. Number 1 would be the employer's written
policy about consumption of alcohol use. According to Paul Grassi,
the Director of the Workers' Compensation Division, a company does
not have to controvert the claim. If an employee had a few drinks
after work but was called back to work and informed the employer of
the drinking, any injury that occurred would be covered under
workers' compensation.
SENATOR DONLEY said if the employee was injured while driving back
to work, that would be covered under tort law.
CHAIRMAN MACKIE asked if workers' compensation would cover the
employer while driving back to work under current law.
REPRESENTATIVE ROKEBERG said that would depend on company policy.
SENATOR DONLEY felt that would apply if the employee was driving
from one work location to another but not when driving from home to
work.
CHAIRMAN MACKIE commented the bill does not change the proximate
cause provision but it does change the standard from intoxication
to consumption.
SENATOR DONLEY stated if the bill goes to a looser standard, it
should redefine whether it is the dominant cause.
CHAIRMAN MACKIE asked Representative Rokeberg if he agreed with
Senator Donley.
REPRESENTATIVE ROKEBERG was unsure.
Number 436
SENATOR DONLEY noted the Committee has to think about what will
happen to the employee if denied. The employee has already given
up his or her rights to the tort system so the employee is only
covered under workers' compensation. He questioned if the employee
loses the workers' compensation rights whether that person will be
precluded from any recovery at all.
REPRESENTATIVE ROKEBERG could not answer.
SENATOR LEMAN recounted a case in which a widow sued under tort law
after her husband was killed on the job. She used that system
because she knew that the payment under workers' compensation would
be [inaudible]. He thought both systems were available to people.
REPRESENTATIVE ROKEBERG stated the issue is whether the
Legislature, as a matter of policy, wants to support the employers
if they have a zero tolerance policy or tell the workers that they
will be covered under workers' compensation even if they drink or
use drugs on the job. The current law requires intoxication so an
employee can have a few drinks but not be drunk, which he believes
is lax.
SENATOR LEMAN said he believes the consumption of any alcoholic
beverages increases one's chances of an accident or injury,
especially when operating equipment. Therefore, giving employers
the right to make that decision, especially if they have equipment,
is the right move. He said he has no problem with this standard.
CHAIRMAN MACKIE agreed.
REPRESENTATIVE ROKEBERG offered to work with Senator Donley to
prepare amendments to be heard in the Senate Rules Committee.
SENATOR DONLEY noted he would prefer to work on amendments in the
Labor and Commerce Committee. He noted that Alaska statute may
already set out that people should be discouraged from drinking at
the workplace, but if an employee had a drink and that is only one
of the causes of an accident, he questioned whether it is the best
public policy to cut them off entirely so that their families end
up on welfare with no way to pay the medical bills.
CHAIRMAN MACKIE asked Senator Donley if he thought he could draft
an amendment to improve the bill.
SENATOR DONLEY said yes, and that first he would like to find out
how the proximate cause interplays with dominant versus one factor.
He would also find out what the remedy would be if this does occur.
REPRESENTATIVE ROKEBERG said this bill is about the State's public
policy toward backing up employers when employees breach a zero
tolerance policy.
CHAIRMAN MACKIE asked Representative Rokeberg to work with Senator
Donley and noted he would bring the bill up again next week. He
then adjourned the meeting at 3:02 p.m.
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