Komalestewa v. ica/stoneville pedigree/wausau Ins

• Court: Arizona Supreme Court
• Decided: August 10, 2005
• Status: Published

Opinion

SUPREME COURT OF ARIZONA En Banc

DAVID C. GRAMMATICO, ) Arizona Supreme Court ) No. CV-04-0197-PR Petitioner, ) ) Court of Appeals v. ) Division One ) No. 1 CA-IC 01-0117 THE INDUSTRIAL COMMISSION, ) ) ) ICA Claim Respondent, ) No. 20001-390571 ) ) Carrier AROK, INC., ) No. AZ 00008522 ) Respondent Employer, ) ) ) ) STATE COMPENSATION FUND, ) ) Respondent Carrier. ) CONSOLIDATED WITH ) __________________________________) ) AUSTIN KOMALESTEWA, ) Arizona Supreme Court ) No. CV-04-0364-PR Petitioner Employee, ) ) Court of Appeals v. ) Division One ) No. 1 CA-IC 03-0041 THE INDUSTRIAL COMMISSION, ) ) ICA Claim ) No. 20013-370241 Respondent, ) ) Carrier STONEVILLE PEDIGREE SEED, ) No. WC-905 367138 ) Respondent Employer, ) ) ) WAUSAU INSURANCE COMPANIES, ) O P I N I O N ) Respondent Carrier. ) ) _______________________________________________________________

GRAMMATICO v. THE INDUSTRIAL COMMISSION

Industrial Commission Award J. Matthew Powell, Administrative Law Judge AWARD SET ASIDE Court of Appeals, Division One 208 Ariz. 10, 90 P.3d 211 (App. 2004) AFFIRMED ________________________________________________________________

KOMALESTEWA v. THE INDUSTRIAL COMMISSION

Industrial Commission Award Stephen W. Pogson, Administrative Law Judge AWARD SET ASIDE Court of Appeals, Division One 209 Ariz. 2ll, 99 P.3d 26 (App. 2004) REVERSED ________________________________________________________________

ATTORNEYS FOR GRAMMATICO v. THE INDUSTRIAL COMMISSION

JEROME, GIBSON, STEWART, FRIEDMAN, STEVENSON & ENGLE, P.C. Phoenix By Joel F. Friedman Attorneys for David G. Grammatico

STATE COMPENSATION FUND Phoenix By James F. Crane, Vice President and General Counsel James B. Stabler Attorneys for AROK, Inc. and State Compensation Fund

JONES, SKELTON & HOCHULI, P.L.C. Phoenix By Randall H. Warner Attorneys for Amici Curiae American Insurance Association, Arizona Association of Industries, Arizona Chamber of Commerce, Arizona Restaurant and Hospitality Association, Arizona Rock Products Association, Greater Phoenix Chamber of Commerce, National Federation of Independent Business Legal Foundation, and Tucson Metropolitan Chamber of Commerce

STEPTOE & JOHNSON, LLP Phoenix By Wendy G. Briggs Attorneys for Amicus Curiae American Insurance Association

- 2 - LOW & CHILDERS, P.C. Phoenix By S. David Childers Attorneys for Amicus Curiae The Property Casualty Insurers Association of America

ADELMAN GERMAN PLC Scottsdale By Daniel J. Adelman Attorneys for Amicus Curiae Arizona Trial Lawyers Association

HARALSON, MILLER, PITT, FELDMAN & McANALLY P.L.C Tucson By Stanley G. Feldman Attorneys for Amicus Curiae Southern Arizona Workers’ Compensation Claimants Association

________________________________________________________________

ATTORNEYS FOR KOMALESTEWA v. THE INDUSTRIAL COMMISSION

Don A. Fendon Phoenix Attorney for Austin Komalestewa

CROSS & LIEBERMAN P.A. Phoenix By Donald L. Cross Attorneys for Stoneville Pedigree Seed and Wausau Insurance Companies

LOW & CHILDERS, P.C. Phoenix By S. David Childers Attorneys for Amicus Curiae Property Casualty Insurers Association of America

ADELMAN GERMAN PLC Scottsdale By Daniel J. Adelman Attorneys for Amicus Curiae Arizona Trial Lawyers Association

HARALSON, MILLER, PITT, FELDMAN & McANALLY, P.L.C Tucson By Stanley G. Feldman Attorneys for Amicus Curiae Southern Arizona Workers’ Compensation Claimants Association ________________________________________________________________

R Y A N, Justice

- 3 - ¶1 Article 18, Section 8 of the Arizona Constitution

mandates that an employee receive workers’ compensation if the

employee is injured in “any accident arising out of and in the

course of . . . employment,” and the injury “is caused in whole,

or in part, or is contributed to, by a necessary risk or danger

of such employment, or a necessary risk or danger inherent in

the nature thereof, or by failure of such employer or its agents

or employee or employees to exercise due care.” The issue in

these consolidated matters1 requires us to determine whether

Article 18, Section 8 precludes the legislature from requiring

proof that the presence of alcohol or illegal drugs in an

injured worker’s system was not a contributing cause of the

accident before workers’ compensation benefits may be awarded.

I

A

¶2 David C. Grammatico, who installed metal trim on

building exteriors for AROK, Inc., performed his work on drywall

stilts approximately forty-two inches in height. After working

for most of his shift on stilts, Grammatico fell while walking,

on stilts, through a cluttered area of the job site. He broke

his right wrist and left knee in the fall.

1 By separate order, we consolidated these cases for the purposes of this opinion.

- 4 - ¶3 Grammatico admitted that he had smoked marijuana and

ingested methamphetamine on the previous two days, days he was

not required to be at work. His post-accident urine test showed

positive results for marijuana, amphetamine, and

methamphetamine, all of which are illegal to use in Arizona.

See, e.g., Ariz. Rev. Stat. (“A.R.S.”) § 13-3401 (Supp. 2003).

Grammatico’s employer maintained a certified drug-testing policy

under A.R.S. § 23-1021(D) (Supp. 2004). Under the terms of the

statute, if an employer maintains such a policy, “an employee’s

injury . . . shall not be considered a personal injury by

accident arising out of and in the course of employment and is

not compensable . . . if the employee fails to pass . . . a drug

test for the unlawful use of any controlled substance,” A.R.S. §

23-1021(D), unless the employee proves that the use of an

unlawful substance “was not a contributing cause of the

employee’s injury.” A.R.S. § 23-1021(D)(1). When Grammatico’s

employer’s insurer denied him benefits, he requested a hearing

before the Industrial Commission.

¶4 After the hearing, the administrative law judge found

Grammatico’s claim noncompensable because Grammatico failed to

prove that his use of unlawful controlled substances “was not

even a ‘slight contributing cause’” of his injuries. Grammatico

then filed a statutory special action in the court of appeals.

See A.R.S. § 23-951(A) (1995). The court of appeals set aside

- 5 - the judge’s award, holding that A.R.S. § 23-1021(D) violates

Article 18, Section 8 of the Arizona Constitution. Grammatico

v. Indus. Comm’n, 208 Ariz. 10, 16, ¶ 25, 90 P.3d 211, 217 (App.

2004). Judge Barker dissented. Id. at 16–20, ¶¶ 26-44, 90 P.3d

at 217-21.

B

¶5 Austin Komalestewa worked for Stoneville Pedigree

Seed. Shortly after he began work one morning, Komalestewa, as

he and his fellow workers often were required to do, tried to

fix a conveyor belt that had “bogged down.” He crawled under

the belt to put pressure on the drum, and his arm became caught

in the belt, resulting in serious injury. Komalestewa’s

employer’s insurance carrier denied his workers’ compensation

claim because blood tests taken at the hospital shortly after

the accident revealed alcohol in his blood. Komalestwa

protested the denial of benefits, and hearings were conducted

before an administrative law judge at the Industrial Commission.

¶6 During the hearing, Komalestwa admitted that he had

four mixed drinks containing vodka the night before the

accident. An expert testified that based on blood drawn after

the accident, Komalestewa’s blood-alcohol level at the time of

the accident would have been at least 0.176 percent. However,

Komalestewa’s wife, the employer’s site manager, and a co-worker

testified that Komalestewa did not appear intoxicated the

- 6 - morning of the accident.

¶7 The administrative law judge initially determined that

Komalestewa had sustained a compensable injury. Subsequently,

however, upon request for review by the insurance carrier, see

A.R.S. §§ 23-942(D), -943(A)-(B) (1995), the judge determined

that the claim was noncompensable under A.R.S. § 23-1021(C)

because Komalestewa’s intoxication had contributed to the

accident. That section provides that “[a]n employee’s injury

. . . shall not be considered a personal injury by accident

arising out of and in the course of employment and is not

compensable . . . if the impairment of the employee is due to

the employee’s use of alcohol . . . and is a substantial

contributing cause of the employee’s personal injury.” Id.

“‘Substantial contributing cause’ means anything more than a

slight contributing cause.” Id. § 23-1021(H)(2).

¶8 Komalestewa filed a statutory special action in the

court of appeals. In affirming the award, another panel of that

court rejected the majority’s approach in Grammatico and held

that A.R.S. § 23-1021(C) did not violate Article 18, Section 8

of the Arizona Constitution. Komalestewa v. Indus. Comm’n, 209

Ariz. 211, 219, ¶ 31, 99 P.3d 26, 34 (App. 2004).

C

¶9 In Grammatico, Arok and the State Compensation Fund

petitioned the Court for review, and Komalestewa petitioned for

- 7 - review in his matter. We granted review in both cases because

of the conflict between the panels of the court of appeals on

the applicability of Article 18, Section 8 and because these

cases concern a matter of statewide importance. We have

jurisdiction under Article 6, Section 5(3) of the Arizona

Constitution and A.R.S. § 12-120.24 (2003).

III

¶10 Before statehood, all Arizona employees injured by

their employers’ negligence could bring common law tort actions

against them. See Consol. Arizona Smelting Co. v. Ujack, 15

Ariz. 382, 383-84, 139 P. 465, 466 (1914); Red Rover Copper Co.

v. Indus. Comm’n, 58 Ariz. 203, 210, 118 P.2d 1102, 1105 (1941);

Arizona Workers’ Compensation Handbook § 1.1, at 1-1 (Ray J.

Davis et al. eds., 1992) (hereinafter “Davis”). But success

with such actions was rare because not only did employees have

to show that the employers were negligent and that that

negligence had caused the injuries, but also because such

actions were “restricted further by the ‘unholy trinity’ of

common law defenses – contributory negligence, assumption of

risk, and the fellow servant rule.” William L. Prosser, Law of

Torts § 80, at 526-27 (4th ed. 1971); see also Red Rover, 58

Ariz. at 210, 118 P.2d at 1105.

¶11 “For twenty-five years, labor interests had

unsuccessfully lobbied for an employer’s liability act in the

- 8 - territorial legislature.” Gordon M. Bakken, The Arizona

Constitutional Convention of 1910, 1978 Ariz. St. L.J. 1, 18.

Responding to those calls, the framers of the Arizona

Constitution in 1910 enacted Article 18, which included a wide

range of measures to protect labor. See id. at 18-20. Article

18 abolished the fellow servant doctrine and substantially

curtailed the defenses of contributory negligence and assumption

of risk. See Ariz. Const. art. 18, §§ 4, 5; Heimke v. Munoz,

106 Ariz. 26, 28-30, 470 P.2d 107, 109-11 (1970).

¶12 Although Article 18, Sections 4 and 5 restricted

employers’ common law defenses to employee negligence actions,

neither section affected the basic requirement that the employee

prove negligence and causation, an often long and expensive

process for both employees and employers. See Davis, §§ 1.1, at

1-1 & 1.3.1, at 1-6. To address this issue, Delegate Everett E.

Ellinwood, “an attorney who had served the railroads and the

Phelps Dodge Arizona interests,” John D. Leshy, The Making of

the Arizona Constitution, 20 Ariz. St. L.J. 1, 35 (1988),

introduced Proposition 72 at the constitutional convention,

which proposed to require the legislature to enact a “compulsory

workmen’s compensation law.” The Records of the Arizona

Constitutional Convention of 1910, 65-66 (John S. Goff ed.,

1991) (hereinafter “Goff”). Proposition 72 was approved and

- 9 - adopted by the convention delegates as Article 18, Section 8.2

Id. at 549, 555, and 886.

¶13 After Arizona became a state in 1912, the first

session of the Arizona Legislature implemented the

constitutional mandate by adopting a “Compulsory Compensation

Law.” Ujack, 15 Ariz. at 384, 139 P. at 466. The present

version of the statutory scheme is found in A.R.S. §§ 23-901 to

23-1091 (1995 & Supp. 2003).

¶14 Article 18, Section 8 and the implementing statutes

provide workers in Arizona with an alternative to common law

tort actions against employers. Under this “new civil action,”

Ujack, 15 Ariz. at 387, 139 P. at 467, neither the employee’s

2 As originally enacted, Article 18, Section 8 directed the legislature to

enact a Workmen’s Compulsory Compensation law applicable to workmen engaged in manual or mechanical labor in such employments as the Legislature may determine to be especially dangerous, by which compulsory compensation shall be required to be paid to any such workman by his employer, if in the course of such employment personal injury to any such workman from any accident arising out of, and in the course of, such employment is caused in whole, or in part, or is contributed to, by a necessary risk or danger of such employment, or a necessary risk, or danger inherent in the nature thereof, or by failure of such employer, or any of his or its officers, agents, or employee, or employees, to exercise due care, or to comply with any laws affecting such employment; Provided, that it shall be optional with said employee to settle for such compensation, or retain the right to sue said employer as provided by this Constitution.

Goff at 1435-36.

- 10 - nor the employer’s negligence would affect compensation. See

Davis, pt. I, at I-1.

¶15 This Court recognized that the new civil action was

simply an alternative to the still-existing common law tort

action. In Industrial Commission v. Crisman, for example, we

held that the legislature’s attempt to require pre-injury

election of either workers’ compensation or the common law tort

action was unconstitutional under Article 18, Section 8 because

it did not provide workers with the constitutionally mandated

option to elect, after the injury, to accept compensation or,

instead, sue the employer. 22 Ariz. 579, 584, 199 P. 390, 392

(1921); see also Ujack, 15 Ariz. at 388, 139 P. at 468.

¶16 In 1925, the voters amended Article 18, Section 83 to

provide for pre-injury election, thus creating a constitutional

exception to Article 18, Section 6, the anti-abrogation clause.

Kilpatrick v. Superior Court, 105 Ariz. 413, 418-19, 466 P.2d

18, 23-24 (1970). As Kilpatrick, 419 Ariz. at 419, 466 P.2d at

24, and Ruth v. Industrial Comm’n, 107 Ariz. 572, 575, 490 P.2d

828, 831 (1971), demonstrate, Article 18, Section 6 still

protects an employee’s right to maintain a common law negligence

action against his or her employer. That right, however, is

3 The amended version of Article 18, Section 8 provided that employees “engaged in . . . private employment, may exercise the option to settle for compensation by failing to reject the provisions of such Workmen’s Compensation Law prior to the injury.”

- 11 - subject to the exception provided in Article 18, Section 8 -

that the legislature may enact a law with the nearly irrebutable

presumption that an employee accepted the alternative of

workers’ compensation benefits unless the employee made a pre-

accident election to reject workers’ compensation and retain his

or her common law rights.

¶17 Under the Arizona Constitution, therefore, absent an

employee’s express rejection of workers’ compensation, a no-

fault system has replaced the prior fault-based tort system.

See Stoecker v. Brush Wellman, Inc., 194 Ariz. 448, 451, ¶ 11,

984 P.2d 534, 537 (1999) (“The underlying principle of the

compensation system is a trade of tort rights for an

expeditious, no-fault method by which an employee can receive

compensation for accidental injuries sustained in work-related

accidents.”); see also Pressley v. Indus. Comm’n, 73 Ariz. 22,

28, 29, 236 P.2d 1011, 1015-16 (1951).

IV

¶18 We now turn to whether A.R.S. § 23-1021(D) and A.R.S.

§ 23-1021(C) violate Article 18, Section 8, as Grammatico and

Komalestewa contend. We begin our analysis with a brief summary

of a few principles underlying workers’ compensation law.

¶19 To receive workers’ compensation benefits, an injured

employee must demonstrate both legal and medical causation.

- 12 - DeSchaaf v. Indus. Comm’n, 141 Ariz. 318, 320, 686 P.2d 1288,

1290 (App. 1984) (citing 1B Arthur Larson, Workmen’s

Compensation Law § 38.83 (1982)) (additional citations omitted).4

Article 18, Section 8 addresses legal causation. See DeSchaaf,

141 Ariz. at 321, 686 P.2d at 1291. As relevant to these cases,

Section 8 divides legal causation into three elements. First,

the employee must have been acting in the course of employment.

Second, the employee must have suffered a personal injury from

an accident arising out of and in the course of such employment.

Third, the resulting injury must have been caused in whole or in

part, or contributed to, by a necessary risk of the employee’s

employment, or a necessary risk or danger inherent in the nature

of that employment or the employer’s lack of due care.

¶20 Medical causation, in contrast, is established by

showing that the accident caused the injury. See id. By its

plain terms, Article 18, Section 8 does not limit the

legislature’s power to enact legislation affecting medical

causation. Cf. Ford v. Indus. Comm’n, 145 Ariz. 509, 518, 703

P.2d 453, 462 (1985) (stating that the constitution does not

prevent the legislature from enacting specific factors to be

considered “in determining whether industrial exposure is a

cause of an occupational disease,” thus implicitly recognizing

4 The current version of Larson also discusses this principle. See 2 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 46.03[1], at 46-6 (2004).

- 13 - that the legislature could enact standards for medical

causation).

¶21 Consequently, the legislature has some latitude to

establish the requisite medical causation for workers’

compensation recovery. In contrast, however, the legislature

may not define legal causation in a way that conflicts with

Article 18, Section 8 because the legislature “cannot enact laws

which will supersede constitutional provisions adopted by the

people.” Kilpatrick, 105 Ariz. at 415-16, 466 P.2d at 20-21.

¶22 The resolution of this case, therefore, hinges upon

whether A.R.S. § 23-1021(C) and (D) impermissibly define legal

causation by requiring proof that the presence of alcohol or

illegal drugs in a claimant’s system did not contribute to the

industrial accident. Turning first to A.R.S. § 23-1021(D)-

(D)(1), those subsections provide that an employee who fails to

pass, refuses to cooperate with, or refuses to take a qualified

alcohol or drug test, is prohibited from receiving compensation,

even if his or her injury would otherwise require compensation,

unless the employee can prove that the intoxication or unlawful

drug use was not a contributing cause of the accident.

¶23 The majority in Grammatico concluded that A.R.S. § 23-

1021(D) impermissibly restricts legal causation. 208 Ariz. at

13-14, ¶¶ 12-15, 90 P.3d at 214-15. We agree. Under Article

- 14 - 18, Section 8, an employee demonstrates legal causation by

showing that a necessary risk or danger of employment caused or

contributed to the industrial accident “in whole or in part.”

(Emphasis added.) Section 23-1021(D), however, denies

compensation to an injured worker unless the worker proves that

a necessary risk or danger of employment wholly caused the

accident. Specifically, if alcohol or illegal drug use

contributed even slightly to the accident, section 23-1021(D)

denies compensation to the employee, even if a necessary risk or

danger of employment partially or substantially caused or

contributed to the accident. Article 18, Section 8 does not

permit the legislature to limit legal causation in that manner.

See Ford, 145 Ariz. at 518, 703 P.2d at 462 (holding that A.R.S.

§ 23-901.01 (1985), which lists factors that indicate whether

employment caused an occupational disease, cannot be

constitutionally interpreted to require proof that the disease

was solely or exclusively caused by the industrial exposure).

¶24 Section 23-1021(C), the statute at issue in

Komalestewa, similarly runs afoul of Article 18, Section 8.

That statute provides that

[a]n employee’s injury or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this chapter if the impairment of the employee is due to the employee’s use of alcohol . . . and is a

- 15 - substantial contributing cause of the employee’s personal injury or death. This subsection does not apply if the employer had actual knowledge of and permitted, or condoned, the employee’s use of alcohol . . . .

Id. (footnote omitted).

¶25 Although Article 18, Section 8 requires compensation

if a necessary risk or danger of employment partially caused or

contributed to the accident, section 23-1021(C) denies benefits

if alcohol or drug use contributed to the accident. Thus, even

if an accident was caused, in part, by a necessary risk or

danger of employment, A.R.S. § 23-1021(C) would preclude

benefits if alcohol was “anything more than a slight

contributing cause” of the injury. A.R.S. § 23-1021(H)(2).

Again, such a provision requires proof that an employee was not

at fault when the industrial accident occurred. Article 18,

Section 8 does not permit the legislature to enact such a

statute. See Inscoe v. DeRose Indus., Inc., 226 S.E.2d 201, 206

(N.C. Ct. App. 1976) (holding that such a requirement injects

“‘fault’ as negligence back into the statute in its broadest

sense . . . . That is, to deny relief to [an employee] . . .

would present a situation analogous to the common law

understanding of contributory negligence which, of course, has

been eliminated from Workmen’s Compensation”); see also Davis

pt. I, at I-1 (“When an injury . . . is covered by workers’

- 16 - compensation, the worker . . . obtains no-fault protection.

Neither the employer’s nor anyone else’s fault is relevant.”).5

V

¶26 The dissent in Grammatico, as well as the court in

Komalestewa, concluded that the legislature is permitted to

define the phrase in Article 18, Section 8, “a necessary risk or

danger of . . . employment,” to exclude accidents occurring when

the employee has recently used illegal drugs or alcohol before

the injury. See Grammatico, 208 Ariz. at 16, ¶ 26, 90 P.3d at

217 (Barker, J., dissenting); Komalestewa, 209 Ariz. at 212-13,

¶ 1, 99 P.3d at 27-28. As the Grammatico majority correctly

pointed out, however, such a definition of “a necessary risk or

danger of . . . employment,” would impermissibly “inject[] fault

into the no-fault workers’ compensation system and effectively

abrogate[] claims for injuries partially caused or contributed

to by workplace dangers.” 208 Ariz. at 15, ¶ 20, 90 P.3d at

216. Moreover, if we agreed with the Grammatico dissent and

5 The Amicus Curiae Brief of Southern Arizona Workers’ Compensation Claimants Association (“SAWCCA”) points out that Article 18, Section 6, the anti-abrogation clause of Arizona’s constitution, preserves each person’s “right of action to recover damages” for injuries. From this, SAWCCA reasons that if an Arizona worker is deprived of the right to worker’s compensation by a statute that introduces fault into the worker’s compensation system, the worker retains the remedy of bringing a common law tort action against the employer. Given our disposition of the issues in this consolidated matter, we need not consider SAWCCA’s argument.

- 17 - Komalestewa opinion, the legislature could circumvent Article

18, Section 8 by defining “a necessary risk or danger” to

exclude a variety of injuries if caused in part by an employee’s

reckless or even negligent acts. The legislature, for example,

could preclude recovery for injured employees whose injuries

were caused, in part, by talking on cell phones while driving,6

by taking cold medication,7 or even by being tired on the job.

However, the language of Article 18, Section 8 and the history

behind it prohibit the legislature from enacting legislation

that injects fault into the workers’ compensation system.

¶27 The dissent in Grammatico further concluded that an

employee’s drug use before coming to work and suffering an

6 Studies demonstrate that talking on cell phones while driving is extremely dangerous. See, e.g., Donald A. Redelmeir & Robert J. Tibshirani, Association Between Cellular-Telephone Calls and Motor Vehicle Collisions, 336 New England Journal of Medicine 453, 456 (1997) (risk of accident increased 400% for drivers using cell phones; “relative risk is similar to the hazard associated with driving with a blood alcohol level at the legal limit”); David L. Strayer et al., Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver, http://www.psych.utah.edu/AppliedCognitionLab/DrivingAssessment2 003.pdf (“cell-phone drivers may actually exhibit greater impairments . . . than legally intoxicated drivers”). 7 Using over-the-counter cold medicine, such as Benadryl, can significantly increase the chance of automobile accidents. See, e.g., John M. Weiler et al., Effects of Fexofenadine, Diphenhydramine, and Alcohol on Driving Performance, 132 Annals of Internal Medicine 354, 362 (2000) (driving performance was generally worse after taking Benadryl than after drinking alcohol).

- 18 - injury is analogous to a meat cutter intentionally cutting off

his own hand. See 208 Ariz. at 16-17, ¶ 28, 90 P.3d at 217-18

(Barker, J., dissenting); A.R.S. § 23-1021(A) (excluding

compensation for self-inflicted injuries). We find that analogy

analytically flawed.

¶28 To be sure, our courts have long held that employees

who intentionally injure themselves may not recover workers’

compensation. See, e.g., L.B. Price Mercantile Co. v. Indus.

Comm’n, 43 Ariz. 257, 268, 30 P.2d 491, 495 (1934) (“The only

injury resulting from an accident which arises out of and in the

course of employment that is not compensable under the law of

Arizona is one that the employee purposely inflicts upon himself

. . . .”);8 Lopez v. Kennecott Copper Corp., 71 Ariz. 212, 215-

16, 225 P.2d 702, 705 (1950) (upholding industrial commission’s

determination that the employee’s injury was self-inflicted, and

thus noncompensable, because circumstantial evidence showed that

the employee had ignited a stick of dynamite at his feet); Rural

Metro Corp. v. Indus. Comm’n, 197 Ariz. 133, 135, ¶ 7, 3 P.3d

1053, 1055 (App. 2000) (“[P]ursuant to our statutory scheme, an

employee’s injury is compensable so long as it is work related

and has not been purposely self-inflicted.”); Glodo v. Indus.

Comm’n, 191 Ariz. 259, 262, 955 P.2d 15, 18 (App. 1998) (holding

8 L.B. Price Mercantile did not refer to Article 18, Section 8, but to sections 1421 and 1426 of the Revised Code of 1928. 43 Ariz. at 268, 30 P.2d at 495.

- 19 - that an employee cannot recover under workers’ compensation if

the injury results from an intentional act).

¶29 Intentionally self-inflicted injuries, however, bar

compensation only to those employees who clearly have purposely

inflicted their injuries. In L.B. Price Mercantile, for

example, we concluded that an employee who violated criminal

laws and was injured in the process was not barred from workers’

compensation because such a violation merely established

contributory negligence, which does not bar recovery under the

workers’ compensation scheme. 43 Ariz. at 265-68, 30 P.2d at

494-95. We explained that “[m]any people violate these

provisions, some unintentionally, and some intentionally but

certainly with no purpose of causing injury to themselves. By

no construction of the facts can it be said that [the employee]

by crossing McDowell Road in violation of traffic regulations

intended to inflict an injury upon himself.” Id. at 268, 30

P.2d at 495.

¶30 But in Glodo, the court of appeals determined that the

employee had intentionally injured himself by punching a freezer

door. 191 Ariz. at 262, 955 P.2d at 18. The court noted that

the employee had argued that “while he may have purposely

punched the freezer door, he did not ‘purposely’ fracture his

finger.” Id. The court disagreed, however, holding that “[a]n

intentional act of violence that produces an injury that should

- 20 - be expected is not accidental.” Id.

¶31 In contrast, Rural Metro concluded that an employee’s

decision to reject medical advice, which resulted in a workplace

injury, did not constitute an intentional injury. There, the

employee had suffered a shoulder injury, which required surgery,

and was told by her doctor not to return to work. 197 Ariz. at

134, ¶¶ 2-3, 3 P.3d at 1054. She nevertheless decided to return

to work, stating that she “had no choice” because of financial

reasons. Id. at ¶ 3. She re-injured her shoulder her first day

back on the job. Id. at ¶ 4. The court of appeals upheld the

administrative law judge’s determination that the injury was

compensable, concluding that “[a]lthough such action was

arguably careless, if not reckless, no evidence was presented to

suggest, nor does Rural Metro argue, that [the employee’s]

purpose in returning to work at Rural Metro was to reinjure

herself.” Id. at ¶ 8.

¶32 In distinguishing Glodo, the Rural Metro court

emphasized that the employee in Glodo injured himself through an

“intentional act of violence.” Id. at 135, ¶ 9, 3 P.3d at 1055.

In addition, the court pointed out that the injury in Glodo was

“‘almost inevitabl[e].’” Id. at 135-36, ¶ 9, 3 P.3d at 1056

(quoting Glodo, 191 Ariz. at 264, 955 P.2d at 20). The

employee’s action in Rural Metro, in contrast, “was neither an

act of violence nor, as the [administrative law judge] found,

- 21 - was it predictably certain to result in injury.” Id. Rural

Metro concluded, therefore, that the employee’s “shoulder

reinjury was not purposely self-inflicted.” Id. at 136.

¶33 Alcohol and drug use is more akin to the facts of

Rural Metro than to the facts of Glodo. While alcohol

consumption and illegal drug use shortly before work or during

work undeniably increase the chances of being injured on the

job, it cannot be unequivocally said that employees with alcohol

or drugs in their systems who sustain injuries have

intentionally injured themselves. See L.B. Price Mercantile, 43

Ariz. at 268, 30 P.2d at 495.9

9 The court in Komalestewa also used a flawed analogy to argue that an employee who is impaired from either drugs or alcohol has abandoned his or her employment. According to Komalestewa, Grammatico’s fall while under the influence of drugs is analogous to an employee who, in a moment of tomfoolery, walks across the room on stilts while blindfolded, simply to show his fellow employees that he could, and falls in the process. See Komalestewa, 209 Ariz. at 218, ¶ 27, 99 P.3d at 33. That analogy is analytically flawed because, in that hypothetical, the employee has actually abandoned his employment. An employee who walks across a room on stilts while blindfolded to show fellow employees that he is capable of doing it, is not doing anything connected to his employment. Thus, it is fair to conclude that the employee has abandoned his employment. See, e.g., Anderson Clayton & Co. v. Indus. Comm’n, 125 Ariz. 39, 40-41, 607 P.2d 22, 23-24 (App. 1979) (finding that an employee who injured himself after jumping a bicycle seventy feet from a conveyor belt into a pile of seed was not acting in the course of employment: “‘[W]here an injury is suffered by an employee while engaged in acts for his own purposes or benefits, other than acts necessary for his personal comfort and convenience while at work, such injury is not in the

- 22 - VI

¶34 We recognize that compelling policy reasons support

banning drug and alcohol use in the workplace. In fact, the

legislature has enacted several statutes in addition to A.R.S. §

23-1021(C) and (D) to further this policy. See A.R.S. §§ 23-493

to -493.11 (1995 & Supp. 2004) (providing for, among other

things, collection of samples, scheduling of tests and

procedures for drug and alcohol testing, disciplinary

procedures, and employer protection from litigation).

Specifically, A.R.S. § 23-493.05 permits an employer to “take

adverse employment action based on a positive drug test or

alcohol impairment test,” including termination of employment.

But as the majority in Grammatico stated:

we cannot ignore that our constitutional system for workers’ compensation requires the payment of benefits if a necessary risk or danger of employment partially caused or contributed to an industrial accident, without consideration of any fault by the injured employee. Thus, unless and until the constitution is changed, the legislature cannot abrogate claims for workers’ compensation for injuries wholly or partially caused or contributed to by necessary employment risks or dangers solely because an employee fails to pass . . . a drug or alcohol test.

course of his employment.’”) (quoting Rodriguez v. Indus. Comm’n, 20 Ariz. App. 148, 150-51, 510 P.2d 1053, 1055-56 (1973)). In neither Grammatico’s nor Komalstewa’s case did the record establish, nor did the respective administrative law judges find, that Grammatico or Komalestewa abandoned their employment.

- 23 - 208 Ariz. at 15, ¶ 18, 90 P.3d at 216.10

¶35 Consequently, because the necessary risks and dangers

of working on drywall stilts could have partially caused or

contributed to Grammatico’s injury, A.R.S. § 23-1021(D) is

unconstitutional as applied to deny Grammatico workers’

compensation benefits. Likewise, because the necessary risks

and dangers of putting pressure on a drum to fix a “bogged down”

conveyor belt could have partially caused or contributed to

Komalestewa’s injury, A.R.S. § 23-1021(C) is unconstitutional as

applied to deny Komalestwa benefits.

VII

¶36 For the foregoing reasons, we affirm the court of

appeals’ decision in Grammatico setting aside the award, and

reverse the court of appeals’ decision in Komalestewa, and set

aside the award.

10 In the 2005 session of the legislature, Representative Eddie Farnsworth introduced House Concurrent Resolution 2007, which would have amended Article 18, Section 8 by including language that would have precluded an injured worker from receiving compensation “if an accident [was] caused in whole or in part by a worker’s use of alcohol or a controlled substance.” The resolution passed both the Commerce and Judiciary Committees of the House of Representatives but apparently no further action was taken on it. See Minutes of Committee on Commerce, Arizona House, 47th Legislature, 1st Reg. Sess., 7-8 (Feb. 16, 2005), available at http://www.azleg.state.az.us.legaltext/47leg/1r/ comm_min/house/216comm.doc.htm; Minutes of Arizona House Committee on Judiciary, 47th Legislature, 16-17 (Feb. 24, 2005), available at http://www.azleg.state.az.us/legtext/47leg/1r/comm_ min/house/0224jud.doc.htm.

- 24 - __________________________________ Michael D. Ryan, Justice

CONCURRING:

_________________________________________ Ruth V. McGregor, Chief Justice

_________________________________________ Rebecca White Berch, Vice Chief Justice

_________________________________________ Andrew D. Hurwitz, Justice

_________________________________________ Charles E. Jones, Justice (Retired)

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