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Editors Note: This article was written by Ian Hayes, law student at St. John's University School of Law, Class of 2013. It was the third place winner in the annual Writing Competition for Law Students sponsored by The College of Workers' Compensation Lawyers. For more information about the CWCL, please visit their website at http://www.cwclawyers.org.
INTRODUCTION
Under the typical workers' compensation scheme, an employer can sometimes avoid paying a claim if the claimant was intoxicated at the time of her injury. The so-called intoxication defense exists because of the common sense assumption that employers should not be forced to pay for an injury that would have been avoided if the worker had acted with a normal sense of prudence by not becoming intoxicated on the job. States have configured their compensation systems to require varying degrees of causation between a worker's intoxication and her injury, with most requiring that intoxication be a proximate cause of the injury.
However, the intoxication defense makes no distinction between cases where an employee became intoxicated out of pure negligence and ones where an employee was intoxicated because she suffers from addiction to a controlled substance. While the identical treatment of both kinds of claims makes the workers' compensation system more efficient and less susceptible to fraud, the lack of accommodation for addicts with claims fails to recognize the nature of addiction as a disease that subverts a person's will. As recognition of the prevalence of drug and alcohol addiction increases and scientific research confirms the notion that addiction causes behavior against an addict's will, workers' compensation schemes should adapt to treat claims caused by addiction as distinct from other claims caused by intoxication.
This discussion argues that states should reconfigure the intoxication defense to give consideration to the unique role that addiction plays in some workers' lives. Part II summarizes the three main approaches states take towards the intoxication defense. Part III describes addiction as it is understood today and notes the conceptual incompatibility between the intoxication defense and addiction. Part IV suggests that a preliminary solution to this incompatibility would be for courts to treat addiction as its own causal factor in deciding whether an employer has a valid intoxication defense. This short discussion is meant to identify the workers' compensation system's basic lack of accommodation for addicts' concerns in order to introduce the importance of recognizing the issue in the system. As such, the arguments rely mainly on policy considerations. The immense body of scientific and legal debate about an appropriate stance towards addiction is beyond the scope of this exposition.
II. THE VARIOUS STANDARDS FOR THE INTOXICATION DEFENSE
States vary in their willingness to allow employers to use an injured worker's intoxication as a defense against a claim for compensation.1 Every state's workers' compensation system has form of the intoxication defense, but the state laws' articulation of the defense vary in the language they use to define it, leading to some confusion about what standard court should apply when evaluating such a defense.2 State laws' intoxication defenses generally fall into one of three rough categories: defenses that do not depend on causation; defenses that require some form of proximate causation between intoxication and injury; and defenses that require that intoxication be the sole cause of injury.3 Reviewing these standards briefly makes a discussion of addiction's appropriate role in workers' compensation claims intelligible.
A. No Consideration of Causation
The most lenient standard for employers who wish to use the intoxication defense allows the defense if the worker was intoxicated at the time of injury, regardless of other circumstances that may have caused the injury.4 This strict standard is used only in Texas.5 Courts in the state have interpreted the state's workers' compensation statute to bar an compensation claim that arose when the worker was intoxicated, even if the intoxication had no role in the worker's injury.6 While other state statutes consider the degree of causation between an employee's intoxication when deciding the fairness of awarding the worker a claim, the Texas standard operates as an absolute prohibition on claims brought when the worker was intoxicated at the time of her injury.7 Such a standard has been roundly criticized as an inhumane obstacle to successful claims.8
B. Proximate Cause Standards
The most common form of intoxication defense is one where an employer can use the defense when the worker's intoxication was a proximate cause of her injury.9 State statutes use a variety of terms to signify that proximate causation is required, including requiring that the injury was “caused by” or “due to” the worker's intoxication, or that the intoxication be the “primary cause” of the injury.10 Under most conceptions of the standard, an employer wishing to bring an intoxication defense must show that the worker's injury would not have happened if she had not been intoxicated at the time.11 Different courts have adopted various tests for determining if the claimant's intoxication met the appropriate degree of causation to bar a claim.12
In addition to tests for proximate causation, courts in many states have been willing to allow claims that arose when the worker was intoxicated if there were other significant circumstances that contributed to the injury.13 For example, when there were hazards at the workplace that also caused the worker's injury, courts will sometimes say that the worker's intoxication was not the proximate cause of the injury, thus allowing a claim despite the intoxication.14 In cases where the injury was commonplace, the burden has been often placed on the employer to show that intoxication was the proximate cause of the injury.15 Standards for the intoxication defense that require proximate causation strike a balance between an absolute bar on claims, such as that used by Texas, and those that require that intoxication be the sole cause of the injury. This middle way has proved appealing to state legislatures, with most states adopting some form of the standard.16
C. Sole Cause Standard
A handful of states have adopted a standard where an employer can only use an intoxication defense if the intoxication was the sole cause of the worker's injury.17 Because of the difficulty of showing that intoxication was the only cause of an injury at work, employers often fail in bringing such a defense successfully.18
This demanding standard allows a worker who was hurt while intoxicated to collect a claim even if the intoxication was the primary cause of the injury, so long as there was some other factor that could reasonably be said to have contributed to the injury.19 As such, evidence that a worker's blood alcohol level was much higher than the legal limit will not preclude the worker from collecting a claim if some other cause of the injury can be shown.20
This sole cause standard is often associated with New York, one of the few states that have adopted it.21 New York has further adjusted its standard to accommodate workers' claims by presuming that a worker's intoxication was not the sole cause of an accident.22 An employer has the burden of overcoming this presumption by presenting evidence of some cause of injury other than the worker's intoxication.23 These conceptions of the intoxication defense, especially as the standard exists in New York, present a very demanding standard for employers to meet, and are therefore controversial.24
III. PROBLEMS WITH APPLYING THE WORKERS' COMPENSATION PARADIGM TO ADDICTION
The nature of addiction leads to several conceptual inconsistencies when the typical scheme's intoxication defense is applied to addicted workers who were injured while intoxicated. Addiction's effect on the consciousness of an addict puts her in a position that does not square with the assumptions underlying the intoxication defense. This is especially true when considering workers' compensation systems' treatment of willfulness and causation.
A. Addiction Generally
This discussion starts from the premise that addiction to drugs and alcohol causes a person to make decisions that she would not otherwise make. The current understanding of addiction, as informed by scientific research into behavior and neurochemistry, is that it is a disease that causes people to use drugs and alcohol with a frequency that they would not if the addiction did not exist. For example, the most recent summary of addiction by the National Institute on Drug Abuse states:
Addiction is a chronic, often relapsing brain disease that causes compulsive drug seeking and use, despite harmful consequences to the addicted individual and to those around him or her. Although the initial decision to take drugs is voluntary for most people, the brain changes that occur over time challenge a person's self control and ability to resist intense impulses urging them to take drugs.25
This understanding of addiction, while accepted in the sciences, is not necessarily recognized by most laypeople, and is thus controversial. However, the continuing debate over the scientific and philosophical merits of this premise are beyond this discussion's focus.26
Because an addict experiences compulsion in making decisions, addiction defies the assumption that people always act reasonably and freely. As with any analysis of human behavior, examining the process of decision-making in an addict's mind will be necessarily simplistic when trying to decide what legal rules should apply to that decision. However, because the widely accepted scientific understanding of addiction recognizes the existence of mental forces that change addicts' decisions, it is clear that the default paradigm that U.S. law applies to human choices fails to take addiction into account. Even without a complete understanding of the way an addict makes decisions, it can be recognized that the process leading to an addict's intoxication involves a mix of willfulness and “compulsion”27 that is less deliberate than the process leading to a non-addict's intoxication.
B. Willfulness
The unique decision-making process of an addict presents a problem to applying the typical workers' compensation scheme's conception of willful misconduct. Although workers' compensation systems are inherently no-fault, there are exceptions to the doctrine that allow employers to avoid paying claims when a worker's role in an injury is so great that a basic sense of fairness urges against employer liability.28 A worker's decision to become intoxicated while working is usually regarded as a form of willful misconduct, allowing employers to raise it as a defense against a worker's claim.29 The reasoning behind such a defense is essentially that an employer should not be held liable for injuries to a worker when the injuries came about because egregious misconduct by the employee.30 The intoxication defense is a logical extension of this thinking, excusing employers from making payments when a worker's willful intoxication lead to the harm she experienced.31
However, the basic formulation of the intoxication defense does not take into account the experience of an addict, whose behavior with regard to intoxication is not wholly willful.32 While it is fair to bar employer liability for injuries that arise because a worker deliberately got drunk, the same reasoning does not apply when the worker became intoxicated because of a neurological compulsion. An addict who was injured while intoxicated does not have the same culpability of a worker who was injured because of willful intoxication. Despite this, states' workers' compensation schemes treat all employee intoxication equally. The basic paradigm behind the intoxication defense, then, fails to take the case of a worker who suffers from addiction into account when it excuses an employer from paying a claim to such a worker.
C. Causation
The intoxication defense is also incompatible with cases of addicts in its formulation of the causes of workplace injuries. As discussed above, nearly every state workers' compensation system takes causation into account when considering the legitimacy of an intoxication defense.33
However, the decision-making process of an addict who becomes intoxicated does not involve the set of causes that go into the non-addict's decision to become intoxicated. An addict's decision to become intoxicated is not caused by an unclouded choice, but rather by a compulsion that invades her mind.34 This is not to say that an addict's intoxication is solely the result of her disease. Rather, the unique mix of willfulness and impulse involves a more complex set of causes than the decision of a non-addict to become intoxicated.
IV. A POSSIBLE SOLUTION
Because compulsion plays a large role in bringing about of an addict's intoxication, an addicted worker who was injured with intoxicated cannot be said to have acted as willfully as a non-addict worker who was injured because of her intoxication. To address these related conceptual problems, it may be appropriate to view the addiction itself as a separate causal factor in the intoxication and a resulting workplace injury. In other words, the causation analysis that most states undertake in deciding whether to allow the intoxication defense would consider a worker's addiction as a separate cause of an injury that arose while the worker was intoxicated.
Treating addiction as a separate cause would not affect the use of the Texas rule, since intoxication would automatically prohibit a valid claim. Under the various forms of the proximate cause test, though, treating addiction as a separate cause would, at least theoretically, have the effect of giving some weight to a worker's disease in determining her blame in an injury. A court could determine that a worker's addiction played a larger causal role in bringing about her injury, rather than the worker's decision to become intoxicated. Doing so would be a step towards making an accommodation in the workers' compensation scheme for the reality of addiction in states that use some form of the proximate cause standard. Such a practice would have an even stronger effect in states that use the New York rule. Under such a standard for the intoxication defense, a worker whose injury while intoxicated was caused by her addiction in addition to her intoxication would not be denied a claim. This formulation of the intoxication defense would create a workers' compensation regime that most closely incorporated the current scientific understanding of addiction, since workers would not be denied claims on the grounds that they were too culpable to deserve an award.
An obvious criticism of treating addiction as a separate causal factor is that it would force employers to pay claims under circumstances that they would not have to pay if the facts were identical, but the claim were brought by a non-addict worker. Under the New York rule especially, employers would effectively be denied an intoxication defense any time a worker's addiction played a role in her injury while intoxicated. Another practical problem with such a rule would be that courts would be burdened with endless consideration of a worker's addiction and the causal role it played in her injury. Even if there were a conclusive means of determining the blame that should be assigned to a worker's addiction (and there is not), executing such an analysis would create far more work for a court than under a system that treats claims by addicts and non-addicts identically. This could reduce efficiency of the system greatly.
To address these problems, courts might have to adopt a less rigid analysis when considering claims brought by addicts. In New York, for instance, a court could give the inevitable role that the worker's addiction played in leading to her injury some consideration, but not deny every claim where addiction was a cause. Such a practice would essentially take the form of a balancing test that would be applied to addicted workers. Courts that consider workers' compensation claims could retain the same rules that they apply in other claims, but adopt an approach that gave more consideration to a worker's substance dependency in such a case. A balancing test could also reduce the amount of speculative work that a court would have to engage in when considering whether to allow an intoxication defense against an addict.
Courts would not feel compelled to determine the exact amount of blame due to addiction in causing an injury, but rather merely consider the role addiction played more so than in a claim brought by a non-addict. To aid courts in making such a determination, the intoxication defense could absorb the standards that courts use in determining whether addiction qualifies as a disability under the Americans with Disabilities Act.35 Although this would present more work to a court than under the current set of standards, the minimal burden would be outweighed by the social benefit of having the workers' compensation system accommodate addiction to some degree.
CONCLUSION
The intoxication defense stands as a way for employers to avoid liability when a claimant was injured because of her intoxication. The presumptions of willfulness and causation inherent in the defense, however, fail to take into account workplace injuries that are caused by an employee's intoxication due to addiction. One way of addressing this problem would be for courts to analyze claims brought by addicts differently, giving weight to the potential causal force of the worker's addiction, as distinct from her willfulness.
Such a solution, however, would merely act as a work-around for employees afflicted with addiction. This discussion has attempted to show the fundamental discord between modern understanding of addiction and the current conception of the intoxication defense. A permanent solution would involve state legislatures amending their workers' compensation laws with the explicit purpose of addressing the needs of addicts, rather than simply allowing an exception to the current system. The problems raised here have not focused on other avenues for employees who were injured because of their addiction, such as the possibility of having their addiction treated as a disability.36 While such means to a remedy might provide solutions in some cases, the current rules on addiction as a disability were not designed to address the specific context of addicts with workers' compensation claims. The exposition here has been meant to confront the basic incompatibility between the workers' compensation system and addiction with the aim of encouraging a deliberate solution to them.
1 ARTHUR LARSON & LEX K. LARSON, LARSON'S WORKERS' COMPENSATION LAW § 36.03, at 1 (2011 ed. 2011).
2 See id.
3 See id.
3 See id.
4 See id. at 2.
5 Id.
6 See Texas Indem. Ins. Co. v. Dill, 42 S.W.2d 1059, 1060 (Tex. Civ. App. 1931) (holding that the state statute bars
absolutely a compensation claim brought by a deceased worker's family when the worker was intoxicated at the
time of injury).
7 See, e.g., Millers Mut. Fire Ins. Co. v. Scott, 529 S.W.2d 315, 316 (Tex. Civ. App. 1975) (noting that state law
does not regard an injury while intoxicated as an injury in the course of employment).
8 See, e.g., LARSON & LARSON, supra note 1, at 2 (“Such statutes, whether phrased in their present form by
inadvertence or intent, are preposterous, and should be speedily amended before they work some such staggering
injustice.”).
9 See id. at 3.
10 Id. at 4.
11 Id. at 3.
12 See, e.g., Sterling v. Mike Brown, 580 So. 2d 832, 834 (Fla. Dist. Ct. App. 1991) (discussing Florida's adoption of
a three-prong test, closely approximating a typical test for proximate cause, to determine whether intoxication
caused an injury).
13 See LARSON & LARSON, supra note 1, at 3.
14 See, e.g., O'Neal v. Home Ins. Co., 404 So. 2d 1355, 1358 (La. App. 1981) (holding that an alcoholic who slipped
while working was not necessarily barred from a claim, despite that his drunkenness as the time of injury may have
contributed to the injury).
15 See, e.g., id.
16 See LARSON & LARSON, supra note 1, at 3.
17 Id. at 5.
18 Id.
19 See, e.g., Milojczyk v. Department of Transport., 51 A.D.2d 1076, 1076 (App. Div. 3d 1976) (holding that
claimant's family had a valid claim, despite that intoxication was the main source of his death, since an eyewitness
saw the wheel of the claimant's vehicle come off either before or after the accident).
20 Tlumac v. High Bridge Stone, 187 N.J. 567, 567 (2006).
21 See, e.g., Segnini v. Roxbury Ski Center, 14 A.D.2d 449, 449 (App. Div. 3d 1961).
22 Thompson v. Wiltsie Const. Co., 72 A.D.3d 1373, 1374 (App. Div. 4d 2010) (holding that the employer failed to
overcome the presumption that the worker's prior consumption of marijuana was not the sole cause of his injury,
thus finding for the worker).
23 Id. at 1374.
24 LARSON & LARSON, supra note 1, at 5.
25 National Institute on Drug Abuse, Understanding Drug Abuse and Addiction (Mar. 2011),
http://www.drugabuse.gov/publications/infofacts/understanding-drug-abuse-addiction.
26 See, e.g., Marc N. Branch, Drug Addiction. Is it a disease or is it based on choice? A review of Gene Heyman's
Addiction: A Disorder of Choice, 95(2) JOURNAL OF THE EXPERIMENTAL ANALYSIS OF BEHAVIOR, 263, 263 (2011).
27 Id.
28 See LARSON & LARSON, supra note 1, § 32.01 at 1.
29 Id. § 36.03 at 1.
30 Id. § 32.01 at 1.
31 See id. § 36.03 at 1.
32 National Institute on Drug Abuse, supra note 25.
33 See supra Part II.
34 See National Institute on Drug Abuse, supra note 25.
35 See generally The Bureau of National Affairs, AMERICANS WITH DISABILITIES ACT MANUAL 80:0311 (2011)
(summarizing the varying states' treatment of addiction as a disability under the ADA).
36 See id.
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