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Grammatico v. Industrial Commission8/10/2005
ed 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 .'" 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, 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.
C.
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.
VI.
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.
208 Ariz. at 15, 18, 90 P.3d at 216.
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.
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.
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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