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.