Grammatico v. Industrial Commission

90 P.3d 211 GRAMMATICO, Petitioner,

David C. COMMISSION,

The INDUSTRIAL

Respondent,

AROK, Inc., Respondent Employer, Compensation Fund,

State

Respondent Carrier.

1No. CA-IC 01-0117. Arizona, Appeals

Court 1, Department

Division A.

May 2004.

As Amended June

drywаll approximately 42 inches in stilts height. working After for several hours on stilts, walking the fell while Grammatico site, job through a cluttered area of the Jerome, Gibson, Stewart, Friedman, Ste- breaking right wrist left knee. He his P.C., Friedman, successfully Engle, By had traversed the area on stilts venson & Joel F. day falling. in without earlier the Phoenix, Attorneys for Petitioner. 8,May Later in of the afternoon Gram- Counsel, McGrory, Laura L. The Chief marijua- matico admitted that he had smoked Arizona, Phoenix, Industrial Commission of nasally ingested na and three to four “lines” Attorney Respondent. for 6,May methamphetamine Saturday, of on Jones, Hoehuli, By Skelton & G. Charles again ingested and had three to four lines of Phoenix, Rehling, Attorneys Rеspondents for methamphetamine Sunday, May on 7. A Employer and Carrier. in sample provided by urine Grammatico positive carboxy hours after his fall tested OPINION (a metabolite), marijuana amphet- THC methamphetamine, amine1 and all of which TIMMER, Judge. See, e.g., are to use in Arizona. A.R.S. 1 In amended Ari- § (Supp.2003). 13-3401 (“A.R.S.”) zona Revised Statutes section 23- ¶ 4 respondent pre- The insurance carrier’s provide 1021 to if employer imple- decessor-in-interest denied Grammatico drug-free workplace policy, ments a a worker benefits, protested. which he At a subse- workplace injury who suffers and subse- quent hearing held before an administrative quently positive impairment tests for аlcohol (“ALJ”), judge presented law evidence was illegal drug eligible use is not for workers’ drug-test- that AROK maintained a certified compensation benefits unless one of three §§ ing policy compliance in with AR.S. exceptions applies. § A.R.S. (1995 Supp.2003), 493 to -493.11 & and had action, (Supp.2003). special In this we are timely policy filed certification its provision ICA, asked to decide whether this vio- thereby triggering applicability 23-1021(D). states, lates Article provision the Arizona A.R.S. That by pertinent part, as depriving Constitution follows: workers of com- pensatory benefits for “caused in employer policy has [I]f established whole, part, by testing impairment or ... or alcohol contributed to” test- ing employee’s injury ... an necessary employment or death shall dangers. risks and personal injury by not be considered a follow, For the reasons that we conclude that arising accident out of the course of violates Article employment compensable pursu- and is not applied in Consequently, as this case. we set chapter, ant to this of such aside the award entered the Industrial employer coop- fails to refuses to (“ICA”), Commission of Arizona which de- erate with or refuses to take test petitioner nied benefits to David C. Gramma- any for the unlawful use of controlled sub- 23-1021(D). application tico on an based proscribed by chaрter stance title ... that is administered or at the re- BACKGROUND quest employer of the not more than twen- Monday, May 2 On Grammatico ty-four employer after hours receives employed by respondent employer injury, actual notice of the unless the em- AROK, Inc., working ployee proves any following: aas foreman of a crew of the installing building sheet metal trim on a exte- employee’s 1. The use of alcohol or ... performed any proscribed by rior. Grammatico his work unlawful substance title Amphetamine methamphetamine placed liquidation ais metabol- court HIH into claims, ite. assigned including ICA all HIH Gramma- claim, Compensation tico’s State Fund Company original 2. HIH Insurance served as the ("Fund"). insurance carrier in this case. After a California Legislature enact a Workmen’s contributing shall chapter 34 was not a cause injury employee’s compen- or death. ... Compensation of the Law which any required paid to sation shall be to be employee’s ... alcohol concen- 2. The workman, consti- lower than ... would tration was such case of 28-1381, A subsection tute a violation personal course of such presumption and would create any any injury to ... such workman under the influence of the of, arising out of and in the course accident intoxicating liquor blood alcohol con- [0.08 whole, is or in employment, such .... tent] to, necessary aby part, or is contributed impairment or alcohol 3. The test employment, or a risk or of such ... that were lower test used cutoff levels necessary danger inherent in the prescribed at than cutoff levels the the thereof.... nature testing transportation for time of the statutory scheme cre- Emphasis added. The testing pro- workplace and alcohol by implement the ated the regulations]. grams under [federal mandate, §§ 23-901 constitutional see A.R.S. 23-1021(D)(l), § Applying the ALJ 5 (1995 provides that Supp.2003), to 23-1091 & noneompensable because found the claim compen- any employee accepts who workers’ prove that his use Grammatico had failed right to sue his or her sation waives the controlled substances “was not of unlawful § damages. employer for tort A.R.S. injuries. spe- contributing This cause” of 23-906(A) 1024(A) (1995); § see also A.R.S. cial action followed.3 (1995) compensable (providing that before OF REVIEW STANDARD may opt out of workers’ injury employee compensation coverage and elect to sue em- deferentially review the 6 We tort). Thus, principle ployer guiding independently findings factual but re ALJ’s rights system “is a trade of tort See, of the e.g., legal PFS v. view his conclusions. Ariz., 274, 277, an em- expeditious, no-fault method which 191 Ariz. Indus. Comm’n of 30, analyze (App.1997). We for acciden- ployee 955 P.2d 33 can receive novo, begin constitutiоnality a statute de acci- injuries sustained in work-related tal ning strong presumption Wellman, Inc., dents.” Stoecker v. Brush See, e.g., Lapare v. statute is constitutional. 534, 448, 451, 11, P.2d 537 Ariz. 984 194 Ariz., 318, 321, 154 Ariz. Indus. Comm’n Ariz., (1999); v. Indus. Aitken Comm’n of 819, Grammatico, (App.1987). 822 (1995) 456, P.2d 462 constitutionality challenging party as the (“[I]n efficiently expedi- and the context 23-1021(D), § the burden of over bears compensation to tiously providing Additionally, coming presumption. this Id. workers, com- [workers’ which is what § unconstitutional we will declare do, designed to fault pensation] system is that it conflicts with only if we are satisfied consideration.”). remains no 8, 18, of our constitution. Section compensato Court, 8 In order to receive Superior Chevron Chem. Co. (1982). benefits, legal 1275, ry a claimant must show both Ariz. causation. causation and medical DeSchaaf DISCUSSION Ariz., v. Indus. Comm’n of 1B (App.1984) (citing A. Ari of the 7 Article Larson, Compensation Law Workmen’s part, provides, relevant zona Constitution (1982))4 “legal shows A claimant 38.83 as follows: challenges to portunity respective to address constitutional parties briefs in After the filed their Thereafter, statutes). Attorney case, General notifying the Ari- state we issued an order this addressing the issue. declined to file brief Attorney constitu- General of Grammatico’s zona pro- challenge to A.R.S. tional principle presently in 2 Arthur opportunity found Attorney 4. This viding General an Larson, Workers' Com- Lex K. Larson's Larson & A.R.S. 12-1841 address the claim. See (Supp.2003). at 46-6 given op- pensation 46.03[1] Law Attorney (providing General must be part, that heart- provided, “[a] in relevant by demonstrating that the acci causation” injury, illness or perivascular related or out of and in the course em dent arose personal inju- considered a Id.; death shall not be ployment. Noble v. Indus. Comm’n of arising ry by out of and Ariz., accident compensa- is not course of causation” Conversely, “medical injury, ... stress ‍‌‌‌​‌​​​‌​​​​‌‌​​​‌​‌​​‌‌‌​‌‌‌​​​​​‌​​​​‌​​​‌​​​‍or exertion ble unless some by showing that the industrial is established employment was a substantial related to the injury. Id. Article accident caused the injury, illness contributing cause of the 8, of the Arizona Constitution does DeSchaaf, or death.” delineates not address medical causation but P.2d at 1290. scope legal providing that causation whole, compensable injury “is caused special petition action to this 11 In her part, or is contributed to” court, argued that the claimant the DeSchaaf DeSchaaf, danger risk or of requirement of “substantial contribution” 321, 141 Ariz. at 686 P.2d at 1291. The 23-1043.01(A) principle § conflicted with the legislation altering enact legislature cannot 18, 8, Arizona Con- in Article Section of the conflicts legal causation a manner that injuries compensable if that are stitution 18, at 320 n. with Article Section 8. Id. to” part, caused “in or contributed [are] 1, 1291; at 1290 n. see also Alvara 686 P.2d necessary dangers. or Id. employment risks Ariz., 561, v. Indus. Comm’n do disagreed, explaining although of that The court (“It 564, 18, 21 not within 716 P.2d legal legislature cannot alter causation as power of to abolish com 18, 8, forth in Article Section the “sub- set diseases, occupational pensation for nor to § requirement of stantial contribution” 23- payment by imposing pro limit conditions 1043.01(A) only pertained to medical causa- constitution.”) (quoting scribed Ford industrial accident caused tion —whether the Ariz., v. Indus. Comm’n 321, 1288, injury. of Id. at 686 P.2d (1985)). 453, 461-62 Legal ease con- at 1291. causation that necessary risks or dan- cerned whether the argues that A.R.S. Grammatico gers employment of the claimant’s caused 23-1021(D) 18, 8, § violates Article of Section stress). (extreme аccident her industrial by restricting legal the Arizona Constitution Medical causation concerned whether Specifically, causation. he contends (the stroke). Be- stress caused her 23-1021(D) injects § concept of fault into require- cause the “substantial contribution” system by compensation the no-fault abro only quantum proof of pertained to the ment injuries “in gating claims for that are caused acci- necessary to show that the industrial whole, in part, or or contributed to” [are] injury, court held that dent caused the if, necessary dangers employment risks or 23-1043.01(A) § Article did not conflict with exception, injured pass, with workers fail to 18, Section 8. Id. with, cooperatе to refuse to or refuse take § drug requested by employer contends that test Grammatico 1021(D), 23-1043.01(A), § qualified drug testing policy. unlike restricts le- and alcohol 23-1021(D) § unconstitution- responds gal The Fund does causation and is therefore legal regu explained reasons not affect causation but instead al for the DeSchaaf. requiring a claimant proving causa The Fund asserts that lates the method medical tion, drug constitutionally permissible. alcohol or use as a cause of which is to eliminate causation, concerns medical an accident parties rely on court’s deci- 10 Both this 23-1021(D) un- is therefore constitutional support respective to their sion DeSchaaf agree with der We Grammatico. DeSchaaf. case, positions. In that the ICA denied com- supra previously explained, pensation to a claimant had suffered an 13 As who constitutionally established on-the-job legal she attributed to causation is stroke necessary danger by showing that a risk or DeSchaaf, 141 Ariz. at work-related stress. wholly caused or partially The ALJ ruled that By to an industrial accident. meet her burden contributed the claimant had failed to 23-1043.01(A) (1995), fails denying compensation to a claimant who which under A.R.S. with, cooperate necessary to refuses to or refuses the stilts. even if a risk or qualified drug impair- to danger take alcohol or working drywall inherent in stilts test, proves ment unless the claimant partially caused or contributed to Grammati- drug the alcohol use did not contribute to fall, compensation if co’s he must be denied 23-1021(D) accident, § impos- the industrial drug his use also contributed to the accident. legal es a restriction on causation that con- Indeed, the that while sufficient ALJ found flicts with the consti- may evidence exist conclude that Gramma- Specifically, tution. worker is drug tico’s use was not a substantial contrib- compensation denied unless he fall, uting cause of his he entitled necessary demonstrates that a risk or dan- compensatory benefits as he failed to demon- ger employment wholly of his caused the strate that use was not contribut- industrial If accident. alcohol or use ing cause of the fall. Because accident, § contributed de- abrogates injuries partially claims for claimant, nies to the even if a by necessary or contributed to risks or dan- employment par- gers employment, impermissibly it con- tially caused or contributed to the accident. flicts with Article of the consti- Ford, See 145 Ariz. at 703 P.2d at 462 Alvarado, tution.5 (1995), (holding AR.S. 23-901.01 which at 21. concerning employ- listed factors whether disease, occupational ment caused cannot be 16 Our with conclusion does not conflict constitutionally interpreted require proof to Ford, suprеme holding court’s as the exposure that industrial was sole exclusive case, Fund contends. In that this court held disease). cause of exposed that a mine worker who was during years 22 23-1021(D)’s industrial irritants his of 14 Section restriction on le- compensa- was not entitled to gal exemplified by applying causation is debilitating cough provision Ar- tion for because A.R.S. to Grammatico’s claim. Under 18, 8, 23-901.01, legal ticle Section causation is fac- estab- which listed six causative necessary diseases, if a lished of Gram- compensable precluded tors for employment wholly partially matico’s compensability aggravation for “mere of a (the caused or contributed to his accident fall Ford, preexisting Ariz. disease.” 145 at 514- Const, stilts). 18, 8;§ Ariz. art. 15, supreme P.2d at 703 458-59. The court 320-21, DeSchaaf, 141 Ariz. at 686 P.2d at disagreed, holding interpretation that this of 1290-91. Medical causation exists Gram- language 23-901.01 conflicted with the matico’s fall from the stilts caused broken 18, 8, requires compensa- that 320-21, DeSchaaf, bones. See 141 Ariz. at partially tion for accidents caused or contrib- parties agree 686 P.2d at 1290-91. The that by necessary dangers uted to risks or solely injuries, fall Grammatico’s caused his 518, Id. at 703 P.2d at 462. dispute. so medical causation is not in stated, however, additionally The court that legislature constitutionally “speci- 23-1021(D), however, could Applying § legal 15 fy the factors which are to bе considered only ] causation is established Grammatico exposure proves days determining whether industrial that his use in the before occupational he worked did not contribute to his fall from cause of an disease.” Id. holding 5. This is consistent with cases conclud- to such an extent that could not follow bibed he ing employee's effectively intoxication or criminal employment and therefore abandoned standing infraction is insufficient alone to bar it); Producers Cotton Oil v. Indus. Comm’n of compensation workers' See benefits. L.B. Price 24, 485, Ariz., 25, (App. 827 P.2d 486 171 Ariz. Ariz., Co. Mercantile v. Indus. Comm’n 43 Ariz. ("Intoxication 1992) itself is not bar to 491, (1934) (concluding Arizona.”); compensation workers’ Embree employee’s violation of criminal laws at time of Comm'n, Ariz.App. Indus. work-related traffic accident no bar to workers’ 324, (1974) (determining "simple intoxi- claim); compensation King Freight v. Alabam’s compensa- ‍‌‌‌​‌​​​‌​​​​‌‌​​​‌​‌​​‌‌‌​‌‌‌​​​​​‌​​​​‌​​​‌​​​‍to bar workers' cation” insufficient Co., 634, 298 P. recovery employee too intoxicated to tion unless (holding intoxication or wilful misconduct no bar employment). follow employee to workers’ unless im- Co-op., argues provi- Dodge Corp. v. Ariz. Elec. Power 17 The Fund that like the Ford, Inc., 110, ¶ 46, permissi- sion at issue 587- However, bly proof regulates the needed show because evidence job suggested necessary arose out of the rather than this case risks dangers working drywall stilts the claimant’s alcohol or use. We dis- agree. Although partially the Ford court did not caused or contributed to Grammati accident, § un distinguish legal and medical cau- co’s industrial discuss or sation, type in this case. it is clear that the restrictive constitutional as constitutionally regulation per- it considered causation. Earli- missible related to medical RESPONSE TO DISSENT opinion, er in the the court held that industri- if we did not 20 We would be remiss exposure compensable al to irritants can be a briefly colleague’s at least on our comment Ford, “accident.” industrial posits legislature dissent. He first that the (quoting approval Mar- 703 P.2d at 461 properly can define “a risk or dan- Ariz., quez v. Indus. Comm’n ger employmеnt,” as used in Article (1974) (describ- Constitution, of the Arizona ing impact each or inhalation of silicon dust workplace actions undertaken exclude leading as a miniature accident to the ulti- recently who had used disability)). by stating mate that the ¶26. drugs. a restrictive See Such legislature permissibly specify could the fac- infra definition, however, injects fault into the no- in deciding tors to be considered whether compensation system fault workers’ and ef- (the accident) exposure industrial is a cause fectively abrogates injuries partial- claims for (the occupational injury), of an disease ly by workplace or contributed to discussing court was restrictions on mediсal dangers. supra If See the Dissent is causation. correct, Ar- could circumvent finally argues strong 18 The Fund merely by defining ticle “neces- public policy implement reasons exist to sary danger” risk or to exclude a host of 23-1021(D). agree We with the Fund that part by employee’s in drug place and alcohol have no in use negligent reckless or actions.

working encouraged world and should not be ¶ 21 The Dissent also contends that Gram- However, ignore or rewarded. we cannot drug during prior use the weekend matieo’s system that our constitutional for workers’ workplace analogous to fall is to a meat his compensation requires payment of bene- using cutter’s аct of a meat knife to inten- necessary danger employ- fits if a or risk hand, tionally cut off his which is non-com- partially ment caused or contributed to an injury. pensable as a self-inflicted accident, industrial without consideration of Infra ¶28. 23-1021(A) (providing See A.R.S. Thus, any injured employee. fault inju- compensation workplace for accidental changed, unless and until the constitution is excluding compensation ries and for self-in- legislature abrogate cannot claims for injuries). analogy flicted is flawed. injuries wholly workers’ or partially caused or to contributed neces- injury 22 For an to be “self-inflicted” and sary employment dangers solely risks or be- “accidental,” claimant must have employee coop- cause an fails to fails to clearly expected that his or her actions would with, drug erate or refuses to take a injury. result in Glodo v. Indus. Comm’n of alcohol test. Ariz., 259, 262-64, 18- Corp. applied (App.1997); 19 Because can be Rural Metro v. Indus. Ariz., 133, 135-36, 9, deny Ariz. violating benefits without Comm’n 1053, 1055-56 of the Arizona Constitution nec- P.3d Glo do, essary injury that dangers risks or did not we held that a claimant’s intentionally wholly partially punched to an when he a cause or contribute occurred accident, statutory anger provision workplace industrial metal door ex anticipated Phelps pected not unconstitutional on its face. See result and was therе- self-inflicted, non-compensable injury. qualified fore alcohol or test. Because the 263-64, unconstitutionally 191 Ariz. at 955 P.2d at 19-20. ALJ deny compensatory benefits to Grammati- 23 While the meat cutter the Dissent’s co, we set aside the award. hypothetical necessarily expected in that his injure tentional slash of the knife would his F. CONCURRING: WILLIAM hand, find, the ALJ did not and the evidence GARBARINO, Judge. suggest, expected does not that Grammatico days that his use in the and hours BARKER, Judge, dissenting. before his work shift would result a fall Indeed, drywall from the stilts. we must I. presume that did not Grammatico intend ¶ My ques- focus on this constitutional injure by ingesting drugs. himself Rural majority. Spe- tion differs from that of the Metro, 135, ¶ 8, 3 P.3d at 1055 cifically, legislature properly could con- (“We рresume that a claimant did not required clude that no act that is otherwise herself, injure regardless intend to himself or place “necessary in the work risk or inadvisable, careless, of how or even reckless danger employment, necessary of such or a been.”). may the claimant’s conduct have inherent in nature there- This case is more akin to the situation Const, of,” 18, § (emphasis art. add- Metro, Rural which involved claimant who ed), person when undertaken whose intentionally ignored herself after she by having intentionally actions are influenced physician’s physi her restrictions on certain voluntarily illegal drugs. consumed cal activities. Id. We held the claimant’s aсtions, reckless, arguably while careless and appreciate being 27 I that the act of on predictably were certain to “[not] result “necessary stilts for this was a injury,” injury and her was therefore acci being risk” of his on But stilts dental than rather self-inflicted. Id. at illegal drugs while under the influence of ¶ 9, 1056; Glodo, 3 P.3d at see also “necessary was not a risk.” The (reasoning 955 P.2d at justifiably appro- could determine that it is claimant’s sustained when he or she priate entirety to look at the of the risk when assaults a co-worker is not as self-inflicted it is shown that the element of the nearly predictable “the outcome is not as as stilts) factually (being sepa- risk cannot be when the claimant slams fist into metal unnecessary rated from the element of the door”). freezer (being risk on stilts while under the influence illegal drugs). particularly of This is true short, 24 long-standing In as a matter of unnecessary when the element of the risk mandate, public policy and constitutional the voluntarily intentionally and undertaken. employee fact that an acts in a that manner legislature constitutionally the can be workplace injury increases the risk of a that justified concluding “part” being that of no wholly partially is or or caused contributed on stilts while under the influence of by danger employ- risk or of “necessary drugs example was a risk.” An ment, not, alone, standing does affect that help and a reference to our earlier cases employee’s right compen- to collect workers’ point. the make sation benefits. cutter, If employed 28 one is as a meat CONCLUSION “necessary employ- of such ¶25 reasons, foregoing For the A.R.S. ment” is the use of a knife to cut meat. However, cutter, using violates Article if a meat while the meat, deprive process cutting the Arizona Constitution if knife in the inten- injuries tionally voluntarily compensatory workers of benefits for and decides to cut off his whole, hand, part, constitutionally pro- “caused or contribut- his conduct is not separate by necessary employment legislature to” and The need not ed risks tected. knife) dangers necessary part (using fails to of the risk worker take, by cooperate represented whole all fails to refuses to the combined

17 users, non-drug drug users are 5 and (using knife to inten- as are aspects of the risk work). likely non-drug to file tionally while at than users cut off one’s hand times more claims”). A in- 360% workers’ exception for self-inflicted 29 The accidents,” “on-the-job crease legisla expressly called out has been use, certainly a basis to review illegal drug is 23-102KA) (Supp.2003) ture. A.R.S. certainly reasonable for conduct. It is such injury in the (granting compensation for the term legislature to conclude injury was course of “unless the “necessary not include conduct at risk” does self-inflicted”). Recognizing the purposely influence of workplace while under the statute, Supreme ruled the Arizona Court illegal drugs.7 self-inflicted, injury it is uncom an though be pensable, even it would otherwise con- upheld statutes other 31 We have employment. Lopez v. Ken in the course of represent- the statute stitutional ‍‌‌‌​‌​​​‌​​​​‌‌​​​‌​‌​​‌‌‌​‌‌‌​​​​​‌​​​​‌​​​‌​​​‍areas when Copper Corp., 71 Ariz. necott legislative interpretation of ed a reasonable (1950). recently, P.2d More explicit otherwise terms. the constitution’s Appeals upheld Arizona the Indus Court instance, 6, of the For compensate trial refusal to an Commission’s “Every person states: Arizona Constitution injury to his employee who had suffered write, may freely speak, publish and on all intentionally hand when he struck a metal added.) subjects____” (Emphasis The word Comm’n, 191 door at work. Glodo v. Indus. explicit Yet we have “all” is both and broad. Ariz. interpretations in which upheld legislative court held that this was not Glodo time, placed legislature has reasonable employee an accident because the should on the free- place, and manner restrictions punching have known that his hand into Em- speech in some instances. See dom of injury. metal door would result in Id. City Bookstore v. press Adult Video & 955 P.2d at 19. Tucson, 50, 56, 9, Ariz. ¶ Though Grammatico did not intention- Supreme (App.2002)(stating that the Arizona stilts, ally voluntarily jump frоm his he protection has made it “clear that the Court voluntarily intentionally ingested three II, § by article 6 does not foreclose afforded methamphetamine within nine to four lines (citing governmental regulation”) limited reporting to work.6 It does not take hours Tel. & Tel. Co. v. Ariz. Mountain States imaginative mind to consider such Comm’n, Corp. injury just wait- conduct “self-inflicted” (1989)). 455, 463 ing happen. legislature thought That the ¶ Here, can constitution- history. legislative out in so is borne See Comm, to the ally give a reasonable construction Min. of Ariz. State Senate on Profes- “necessary not include term risk” that does Employment, Leg., sions & 42nd S.B. (Feb. 7,1996) workplace in the that is affected (testimony conduct presented 2nd Sess. illegal drugs. particularly This is the use of “according to the to the National Senate Abuse, opportunity when the has the Drug Institute on users are 3.6 true drugs on-the-job illegal influence of did likely accidents to show that the times as to have dealing ingested (Supp.2003). with The circumstances 6. Grammatico testified that he between (A.R.S. methamphetamine any aspect three and four lines of be- of alcohol use p.m. Sunday night p.m. (A.R.S. 1021(D)(1)) tween 8:00 and 10:00 § 23- or an alcohol test Monday. reported work at 5:00 a.m. on to (3)) 1021(D)(2) and are not at issue. Neither is Monday. The accident occurred on employee case in which an there an issue in this cooperate with a to take or failed to has refused holding majority "as The indicates that its is 7. recognizes, illegal drugs. majority As the test for ¶ majority Supra applied 1. The in this case." 23-1021(D)(l). only Supra V 5 the ALJ holding person enlarges who "fails its to a then 1021(D)(1), ("Applying § the ALJ found the 23— cooperate or to take a to to fails refuses My analysis noncompensable____"). is claim drug ed). Supra (emphasis add- alcohol test.” or presented solely to the facts and issue limited employee who failed a test this case: an only matter at issue here relates to an The (D)(1) ap- illegal drugs and to whom 23—1021 employee and failed a test for who has taken plies. 23-1021(D)(l) illegal drugs under A.R.S. security not contribute to the conduct Al guard burglars at issue. found when chased though compensation so); premises being the worker’s statutes off after told not to do liberally Comm’n, protect Clayton must be construed to em Anderson & Co. v. Indus. mandate, ployees (App.1979) under the constitutional 125 Ariz. liability or (horseplay “[a] burden not within the terms at work ais “substantial devia- spirit or imposed upon of the law is not to be tion” and results non- industry.” Goodyear Corp. compensability injuries). Obviously, v. In if Aircraft 398, 402, 158 Comm’n, “fault,” strictly dus. 62 Ariz. P.2d cast terms of each of these (1945). decisions would be in doubt itas was conduct employee, contrary

of the to some directive policy, injuries being which resulted II. noncompensable.8 concept of fault majority analy- 33 The contends that this cannot cast so a net that it broad overwhelms sis, legislative on a based decision of what the other terms of the constitutional man- risk,” may “necessary represents constitute a date. “injects a “restrictive definition” that fault” ¶36 question per- here is whether compensation system into the worker’s forming required a task at work while under may act to “exclude a host of if the influence of substances “neces- part by employee’s reckless sary risk” of lan- That is the negligent Supra majori- actions.” 20. The guage of the constitutional mandate. Ariz. ty also submits that this case is akin to Rural Const, 18, § may art. 8. not discard it. We Commission, Corp. Metro v. Industriаl 3 P.3d 1053 I disagree majority’s with the view. B. majority ‍‌‌‌​‌​​​‌​​​​‌‌​​​‌​‌​​‌‌‌​‌‌‌​​​​​‌​​​​‌​​​‌​​​‍posits by per- 37 The also that

A. mitting legislature to a use “restrictive fault,” phrase “injecting 34 As to definition” of the constitutional “nec- the “neces- stilts, essary injuries” sary being risk” there will be “host of risk” is defined as as negligent” employee opposed being to based on “reckless or on stilts while under the illegal drugs, majority coverage. conduct that will be excluded from influence of then the is Supra clearly long correct. Our eases have held that “fault remains no consideration” when ¶38 First, construing when a statute to determining whether is due. complies determine whether it with the con- Comm’n, Aitken v. Indus. 183 Ariz. stitution, duty give reading we it a have (1995). This dissent has no promote constitutionality. that will its See quarrel with holdings. these Found., Arizona Downs v. Ariz. Horsemen’s

¶35 hold, however, Our cases also compensable certain (stating “duty conduct is not have a courts construe See, it, though occurring e.g., give possible, even at work. a statute so as Goodyear Corp., meaning”). 158 reasonable and constitutional Aircraft (finding noncompensable simply P.2d an em- do not We view statute terms ployee’s injuries engaging plausible interpretations may when in conduct at uncon- be stitutional; specifically precluded); work that had been rule will “[w]e rather the Dependable Messenger, Inc. Indus. not declare an act of the unconsti- Comm’n, 516, 518-19, beyond tutional unless we are satisfied (App.1993) (employee injuries 663-64 from reasonable doubt that the act is conflict personally-motivated fight during work hours with federal or state constitutions.” the Court, compensable); Superior not Scheller v. v. Indus. Chevron Chem. Co. (1982) Comm’n, 1279, 1275, added). injuries suggest majori- (App.1982) (noncompensable (emphasis I that the Schwartz, Ma, Fault!, dealing 8. For a discussion of Arizona cases A. Look No Arizona Attor- 2000, concept settings Roger Apr. the fault in various see at 26-32. ney, employee, being after ty heightened are those which an has not followed this standard drug testing pro- “beyond specifically a reasonable notified of a of review —that analyzing gram employer implemented statute. The ma- has and doubt” —in this that his basis, jority’s interpretation clearly plausible, maintaining on-going is but nonethe- is on intentionally illegal only interpretation voluntarily the and uses it is not the less her language drugs of the constitution and the statute which then contribute to his or circumstances, adopt In such we must at work. bear. interpretation reject

a and the constitutional interpretation.

unconstitutional Edward J. c. Corp. Bldg. DeBartolo Florida Coast ¶41 majority Gulf The also asserts that Council, & Const. Trades 485 U.S. apt analysis. for Rural Metro case is more 108 S.Ct. 99 L.Ed.2d 645 In Rural Metro a 3 P.3d 1053. (“[Wjhere acceptable an otherwise construc- paramedic prior to the went back work tion of a statute would raise serious constitu- her. Id. at timе that her doctor released problems, tional the Court will construe the at that “she 1054. She said problems statute to avoid such unless such ‘had no choice’ because of financial reasons.” plainly contrary construction is to the intent lifting patient. Id. She herself when Clark, Congress.”); United States v. 134, ¶4, Id. at 3 P.3d at 1054. The court U.S. 100 S.Ct. 63 L.Ed.2d 171 injury “purposely found that the was not self- (1980) (“It is well settled that this Court will ¶ 9, at 1056. inflicted.” Id. pass constitutionality on the anof Act of majority presump- The relies Congress if a construction of the statute is tion in Rural Metro of lack of stated ‍‌‌‌​‌​​​‌​​​​‌‌​​​‌​‌​​‌‌‌​‌‌‌​​​​​‌​​​​‌​​​‌​​​‍fairly possible by question may which the be injure “regardless intent to oneself of how avoided.”). inadvisable, careless, or even reckless the Second, this is a It focused statute. may claimant’s conduct have been.” Id. at requires employer [] “establish a 135, 8, 3 P.3d at 1055. The conduct here policy drug testing compliance with the [in (being illegal under the influence of sub- statute], maintaining policy is on an work) performing stances while tasks at and, ongoing manner before the date of the intentional, voluntary, and unlawful —not employee’s injury, employer files the “inadvisable, careless, merely or even reck- written certification with the industrial com- respect, all the intentional less.” With due provided mission” that it has voluntary illegal drugs use of within nine “notification employees its ... employer that the is main- work, reporting all hours of the while taining policy.” § & A.R.S knowing employer implemented that the has (F) added). (Supp.2003) (emphasis If the mandatory on-going drug testing pro- employer knowledge per- “had actual of and use, gram stop significantly such employee’s mitted or condoned un- pattern going different fact than back to any substance,” lawful use of controlled the work too soon “because of financial reasons.” 23-1021(E) apply. statute does not A.R.S. 43 Even Rural Metro were the better (Supp.2003). “employee’s any If the use of (a analogy proposition accept), I do not unlawful substance ... was not a contribut- point primary enacting is that A.R.S. ing employee’s injury,” cause of the the stat- has called out a apply. ute also does not A.R.S. “necessary rational scenario for what is not a 1021(D)(1). employment. risk” of This enactment of 23-1021(D), calling This statute is not attack on “fault” A.R.S. out the use of by legislature seeking illegal drugs employer institut- to thwart its consti- when the has narrow, maintaining drug testing pro- tutional mandate. This is a focused ed and is may certainly upheld gram, statute that be on the basis that similar but not identical to voluntary legislature calling the intentional and use of out self-inflicted drugs “necessary risk” worker’s does not constitute for exclusion only injuries” expressly referenced in “host scheme. Neither is uncompensated Both are within this statute will leave the Arizona Constitution. parameters. legisla-

the constitution’s our

ture is bound non-constitutional

holdings. disagree To with our earlier non- (such

constitutional decisions as Rural Met- ) completely legislature’s pre-

ro is within the view, however, my

rogative. In A.R.S. 23-

1021(D) absolutely impact has no Ru- holding

ral Metro even as when viewed

majority upholding construes it. A decision as

A.R.S. here would holding principles

do no violence to

Rural Metro.

III.

¶44 reasons, foregoing For the I would

find A.R.S. constitutional as

applied. Accordingly, respectfully I dissent.

90 P.3d 221 Arizona, Appellee,

The STATE of

Tony Dewayne SMITH, Appellant.

No. 2 CA-CR 2003-0254. Arizona, Appeals

Court of Two, Department

Division B.

May

Case Details

Case Name: Grammatico v. Industrial Commission

Court Name: Court of Appeals of Arizona

Date Published: Jun 15, 2004

Citation: 90 P.3d 211

Docket Number: 1 CA-IC 01-0117

Court Abbreviation: Ariz. Ct. App.