There Still is an Intoxication Defense in Illinois

Friday, March 26, 2010 | 0

By Arik D. Hetue
Keefe, Cambpell & Associates
 
We applaud the Illinois Workers' Compensation Commission for recently reversing an arbitrator’s ruling finding a very drunk employee to have suffered a compensable workplace injury despite admittedly drinking for four hours before returning to work and having blood-alcohol content three times the legal limit.

When will this state abandon the functioning alcoholic standard and find these roustabout injuries to be non-work related?
 
In Powell v. International Crown, 99 W.C. 064102, No. 09 I.W.C.C. 0992 (October 2009), Petitioner, a journeyman iron-worker, admittedly went out drinking with his co-workers a little before lunch as the wind was making it difficult to perform the job duties. While at lunch, Petitioner admitted to drinking at least four beers and one “blue shot” but could actually not recall how many drinks he had exactly. Petitioner admitted to drinking for four hours at the bar. Petitioner testified he had no memory of anything after leaving the bar until waking up in the hospital.
 
During his blackout, three of the four man crew apparently returned to the worksite in order to secure the gear for the next day. Upon arrival at the job site, the foreman decided to continue working, and Petitioner climbed onto the roof where the work was being performed. Petitioner apparently worked for 10 minutes and then fell off the roof. Upon arrival at the emergency room, Petitioner was unable to recall the traumatic event or to provide a past medical history due to his intoxication. Petitioner’s blood alcohol level tested almost an hour after leaving the bar remained at 0.248, over three times the legal limit. Petitioner had final diagnoses of vertebrae and rib fractures and alcohol abuse. Petitioner later underwent thoracic spine surgery.
 
Petitioner attempted to bring up the “functioning alcoholic” argument at trial, with the testimony of his medical expert evidencing “a longstanding history of alcohol consumption by Petitioner, beginning at the age of 21 with daily drinking after work and continuing to present day, where Petitioner reported average weekly alcohol consumption of at least two cases of beer.” Petitioner’s expert was unable to definitively opine he was alcoholic, but he opined Petitioner “clearly had a prodigious tolerance for alcohol and … was able to perform a variety of cognitive and motor functions without alteration, lack of coordination or confused speech…” The expert went on to opine Petitioner was not impaired from performing his job functions at the time of the injury.
 
We note although the arbitrator found Petitioner to have fallen off the roof due to essentially passing out from alcohol intoxication, he relied on the above findings as well as the indication that Petitioner was under the direction of his foreman a the time of injury to award the injuries as compensable.
 
The Commission in its decision concisely stated current Illinois law, stating as follows:
 
…where the evidence of intoxication is significant to the point that the court can hold, as a matter of law, that the injury arose out of the drunken condition and not out of employment, recovery under the Workers' Compensation Act can be denied.” District 141, International Association of Machinists & Aerospace Workers v. Industrial Commission (1980), 79 Ill.2d 544, 39 Ill.Dec. 196, 404 N.E.2d 787). Although the ultimate conclusion must appear as a matter of law for the intoxication defense to succeed, such a decision is dependent on a number of factual determinations, such as the degree of the employee's intoxication, his capacity to continue carrying out his employment and the cause of the accident. Paganelis v. Industrial Commission (1989), 132 Ill.2d 468, 139 Ill.Dec. 477, 548 N.E.2d 1033; see also Lefens v. Industrial Commission (1918), 286 Ill. 32, 121 N.E. 182 (the condition of an employee as to his intoxication is a question of fact)).
 
The Commission reviewed the testimony de novo and found clear evidence alcohol was the sole cause of Petitioner’s injuries and reversed the Arbitrator, but part of their ruling was based on the discrepancy between the reported outward appearance of Petitioner at the time of the injury by his co-workers in contrast to his outward appearance just minutes later by emergency responders and police officers. We applaud the Commission for getting this one right in the end, but we have to ask the question – if an employee is clearly three times the legal limit, literally halfway to the point of death due to alcohol consumption (achievable at BAC levels of 0.5), do we need to continue to rely on the “functioning alcoholic” standard? Do we really need to look into whether a person smelled of alcohol or was slurring their speech when we have proof of BAC?
 
Whether someone looks like the can handle their liquor doesn’t mean the law should differentiate based on appearances. Ask the mothers of children killed by drunk drivers whether they care if the driver looked sober.
 
<i>Arik D. Hetue is an attorney for Keefe, Campbell & Associates in Chicago. This column was reprinted, with permission, from the firm's blog, which can be found here: http://www.keefe-law.com/blog.</i>
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