Legislature(1999 - 2000)

04/15/2000 02:50 PM L&C

Audio Topic
* first hearing in first committee of referral
+ 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                                                            
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                                                            
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                                                            
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                                                            
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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