Intoxication no Bar to Benefits if Employee is a Chronic Alcoholic

Saturday, March 25, 2006 | 0

by Matt Wrigley

Clarence Saffold v. Treasurer of the State of Illinois as Ex Officio Custodian of the Second Injury Fund, 2005 Ill. Wrk. Comp. LEXIS 550, July 1, 2005.

Susan O. Piggot and James F. DeMunno, comprising a two-member majority of Panel A of the Illinois Workers' Compensation Commission (Commission), recently awarded benefits to, in their words, a "chronic alcoholic" who was injured while "intoxicated at work." Commissioner Basurto dissented.

On March 12, 2000, the Petitioner, a drill press operator, reported to work for the start of his 10:00 p.m. shift. Prior to arriving for work he consumed two 40 ounce bottles of beer and between seven to eight shots of whiskey.

It was undisputed that at the time of the accident the Petitioner's blood alcohol content was .23%, just under three times the legal limit of intoxication in the State of Illinois. At 10:02 p.m., two minutes into his shift, the Petitioner's gloved right hand became caught on a flat head screw on the drill press. As a result, the Petitioner's right arm was crushed and had to be amputated near the elbow.

The Petitioner testified that his accident occurred because the employer had altered the type of screw used on the drill press machine. This "change meant that a flat-head type of screw was being used." However, the Petitioner acknowledged having worked at least one full shift on the newly altered drill press without difficulty. The Petitioner also claimed that the accident occurred because he had "used a different pair of gloves" on the day of the accident. However, he admitted using these new gloves without a problem "for two days prior to the accident."

On April 26, 2004, the Petitioner's claim went to arbitration before Arbitrator Leo Hennessy. Arbitrator Hennessy found the Petitioner's uncorroborated assertions of chronic alcohol dependancy to be "self-serving." He determined that the accident did not arise out of and in the course of the Petitioner's employment but instead was the result of his intoxication.

Commissioners DeMunno and Piggot, both former Petitioner's attorneys, reversed Arbitrator Hennessy's decision because the "Petitioner demonstrated that he was a chronic alcoholic who drank the same amount of alcohol every day for years." Commissioners Piggot and DeMunno went further, stating that the Petitioner could not have been "impaired" because during the two minutes preceding his injury he had "successfully drilled a few pieces at the start of his shift without incident."

Dissenting, Commissioner Basurto found Arbitrator Hennessy's decision to be fully supported by the record. Commissioner Basurto noted that the Petitioner had been "operating heavy machinery while intoxicated at a level three times the legal limit to operate a motor vehicle." He noted further that the Petitioner's own testimony was the only evidence presented to show that he was not impaired at the time of the accident. In addition, Commissioner Basurto noted that the Petitioner had taken possession of the glove he had been wearing at the time of the accident but had not offered it into evidence. Thus, it was reasonable to infer that the glove would have advanced the Respondent's defense as opposed to the Petitioner's claim.

In summary, it should be noted that under the "intoxication defense" an employee generally is not entitled to workers' compensation benefits if the employee's intoxication was the sole cause of the injury or if the level of intoxication was so excessive that it constituted a departure from the course of employment. What Commissioners Piggot and DeMunno have implicitly fashioned is a "chronic alcoholic" exception to this rule. According to Commissioners Piggot and DeMunno, an employee who is drunk every day cannot be "impaired" by the consumption of alcohol. Therefore, under the Illinois Workers' Compensation Act, the chronically drunk employee will be rewarded for being chronically drunk that the symptoms in both of her hands started in December or October of 1997 and that she told her supervisor that she believed her condition was work-related.

Article by Matt Wrigley of the Illinois Self-Insurers Association (www.illinoisselfinsurance.org.

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