Smoke pot, commit a crime—apparently these aren’t major problems for Illinois labor when seeking Illinois workers’ comp benefits.
Editor’s comment: While this ruling isn’t a major change in Illinois WC law, we continue to cringe about what is happening in the work comp arena in our fair state.
In Szarek v. Illinois Workers’ Compensation Commission, (No. 3-08-0530WC October 29, 2009), claimant, an apprentice carpenter, was seriously injured after falling through a floor opening on a second floor of a house he was helping to build. His employer contended marijuana use, detected via urinalysis, was the proximate cause of fall. The decision indicates the employee was winding in a chalk line when he fell. Other than urinalysis, the majority ruled there was
- No evidence … he was so intoxicated he had abandoned his employment, nor
- Was marijuana use was sole cause of fall, and
- Witness statements establish employee was performing his job duties at time of accident.
The court did rule the Commission’s award of penalties and fees was reversed as any “reasonable person” could have concluded claimant might not be entitled to workers’ compensation benefits. We are confident this won’t alleviate the onus of paying lifetime medical and lost time benefits. We also point out this is the third reported decision in the last 12 months where our reviewing courts have awarded benefits to someone who admittedly and unquestionably committed a crime.
In our view, based on the evidence outlined in the ruling, this claim would have been compensable under traditional Illinois’ legal analyses but it was handled by one of the most misguided TPA’s of Illinois TPA’s. In our view, the TPA had their defense counsels do any number of unusual things in spending literally tens of thousands of dollars to lose this claim over the nine years it was unsuccessfully litigated. If you have claims involving intoxication or impairment and want real answers on effectively defending them, send a reply.
Please note this ruling continues to implement what we feel is a contradictory and paradoxical analysis of allowing substantial seven-figure workers’ comp benefits despite an injury under the undisputed influence of drugs or alcohol. One legal device to find such an injury compensable is indicated to be the claim the impaired miscreant did not “abandon employment.” We note this same legal concept was recently proposed in new legislation.
We ask the rhetorical question of how a worker can have a work injury if they have abandoned employment? If the worker abandoned employment while stoned or drunk, they aren’t on the job any more, correct? If they aren’t on the job, they can’t ever have a work injury so how does such language add anything to this analysis? It is our academic view the paradox doesn’t add anything to the compensability of such a situation and it guarantees benefits to any intoxicated or stoned worker who remains on the job after becoming drunk or stoned.
While we feel this case would have been compensable for a number of reasons including possible OSHA violations, we feel legislation is the best way to address workplace intoxication and impairment. Please also understand an impaired worker is a health and safety risk, not just to themselves but to all workers around him or her. We also urge all Illinois and U.S. employers to learn from this lesson and implement drug and alcohol-free workplace protocols. Please let us know your thoughts and comments.
