Chief’s Counsel: Will Alcoholism Qualify for Workers’ Comp Coverage?

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The prevailing view among courts and state boards or agencies is that persons that are injured at work while under the influence of alcohol or other drugs are not covered by workers’ compensation (WC) or similar programs.

In order to be able to properly determine whether a claim is covered, a chief should check with his or her legal advisor to review the wording of any applicable state law. A department’s police psychologist can also be helpful in sorting out the often-overlapping causes of an officer’s apparent disability or injury. Seeking such advice well in advance of any actual WC claim will help a chief respond promptly and confidently. When an injury occurs or a claim is filed, a thorough review of the circumstances and the elements of a claim is essential, as some cases are very fact specific. In addition to normal investigative practices such as gathering witness statements, taking photos, and so forth, part of any alcohol-related WC investigation should include a detailed review of any psychiatric evaluations and services an employee has received, as well as what efforts the individual has made to deal with his or her alcoholism.

It is important to recognize that employees with alcoholism may be covered by several state and federal laws. In some cases, claims can be filed for Social Security Disability, WC, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), or similar state benefit and anti-discrimination laws. Conflicting results often seem to stem from inadequate investigations by the employer.

Nearly 30 years ago, a Michigan court upheld the award of WC benefits to a brewery worker who claimed his employer contributed to his alcoholism by giving employees as much free beer as they wanted to drink during their breaks. Although alcoholism is an “ordinary disease of life” and the employee didn’t have to drink as part of his job, the appellate court found that he was still entitled to WC benefits because the “unique circumstances of the employment shaped the course of [his] disease.”1 Some speculated that this ruling might foreshadow a shift in how claims for on-the-job injuries involving drunk workers would be handled in the United States. However, to date, most other courts have been reluctant to follow Michigan’s lead. This does not mean that chiefs are free to ignore practices that might lead a court or WC agency to conclude that alcohol consumption is an integral part of being a police officer. Practices such as nearly mandated attendance at cop bars for “choir practice” (post-work socializing and drinking) could be seen as unnervingly similar to the practice in the brewery case.

A brief review of some more recent WC cases can provide chiefs with some insight as to what facts are deemed most persuasive and what policies or practices might help minimize a municipal department’s exposure to liability.

Bilben v. City of Wheaton

The Court of Appeals of Minnesota ruled that an individual was not disqualified from receiving unemployment benefits since he made reasonable efforts to retain his employment per Minnesota law. Although the city discharged the employee for misconduct that was attributable to his alcohol addiction, the court concluded that the employee’s submission to treatment for alcoholism and his continued participation in Alcoholics Anonymous as a follow-up showed that he made reasonable efforts to retain his employment within the meaning of the statutory definition.

Under the Minnesota “serious illness” exception to disqualification from reemployment insurance (i.e., unemployment insurance) benefits, an employee is not disqualified from receiving reemployment insurance benefits if he or she is separated from employment due to personal, serious illness, provided that such individual has made reasonable efforts to retain employment. The court ruled that the “serious illness” exception to disqualification includes chemical dependency.2

City of Lindsay v. Workers’ Compensation Appeals BD.

A municipal safety officer resigned after he was told he would be disciplined for coming into work one hour late on President’s Day. According to his deposition, he resigned because he was “just going in a downward spiral” and “really felt segregated from everybody.” He had been disciplined in the past and expected to be disciplined again because he took some liberty with his working hours on President’s Day.

Approximately one month later he filed a WC claim alleging injury to his psyche, stress, and bilateral upper extremities. Several months later, he filed a second amended application for adjudication of claim, adding an injury in the form of high blood pressure. Initially, the WC judge filed a “Findings and Award” stating that “applicant proved by a preponderance of evidence that he sustained cumulative industrial injury to the CVS/hypertension and psyche as alleged while employed as a police officer for the City of Lindsay.” In the opinion on decision, the judge stated,

As noted by Dr. Lopez [psychiatrist], applicant was well and without psychiatric problems when he began work at the Lindsay Police Department in 12/92 and the work went well for a time. Applicant was later promoted to Sergeant in 1997 and a year prior to promotion to Sergeant, applicant had become an acting sergeant. There is evidence of personal problems in applicant’s family life and with alcoholism. There is no evidence at this time that those problems would have resulted in a permanent disability absent the stressors of police work as noted by Dr. Lopez. The predominant cause of applicant’s injury were the stressors of his job in the police department.

The applicant had numerous personal problems: he had two children with his ex-wife, a heroin addict. Their children had problems in school and dealing with his live-in girlfriend. His daughter was part of a gang. He had been disciplined several times for various indiscretions involving alcohol, including a suspension for drinking alcohol in a park in 1996. He was arrested by the City of Woodlake for spousal abuse. (The charges were eventually dropped.) In 1993, the applicant underwent a total of three Internal Affairs investigations. Applicant admitted that he resigned at least in part because of the impending discipline after he was told his discipline could include termination. Applicant’s uncle died a few days before he left employment with the City of Lindsay.

Since there was a technicality in how the reviewing WC panel reached its decision to overturn the judge’s ruling, the court sent the case back, but the fact that they designated this as an “unpublished opinion” may indicate their uneasiness with the whole matter. The court noted that the WC Appeals Board’s decision does not identify the “cumulative trauma on the job” or the “stressors of police work.”

Nor does the WCAB adequately address petitioner’s contention that petitioner’s personal problems, particularly applicant’s alcoholism, were not the predominant causes of applicant’s psychiatric problems or that any psychiatric injury suffered by applicant was not caused by lawful, nondiscriminatory, good faith personnel action.3

Berglund v. Kozlak’s Royal Oak Rest, Inc.

The court held that an employee met the chemical dependency exception to the employment misconduct rule and was entitled to unemployment benefits under Minnesota law because she had followed up with her physician’s referral and recommendation that she seek counseling, and she had undergone nine sessions of cognitive behavioral therapy with her psychologist for her alcohol dependency. The primary basis for the unemployment law judge’s decision was based on an error of law, that a total cessation of alcohol use was necessary in order to find “consistent efforts,” and on unsubstantiated findings that the employee had increased her level of alcohol consumption during the five months prior to her discharge and had failed to attend an inpatient or outpatient treatment program that had been recommended by her treatment providers.4

Smith v. LSI Lighting Servs.

An employee sustained a head injury while working as a machine operator. The employee had been standing on a platform next to the machine he was operating when, according to an eyewitness, he suddenly started tilting to the side and fell three or four feet to the floor. The employee argued on appeal that the evidence of his .218 percent blood alcohol content upon admission to the hospital was insufficient to support the New York Workers’ Compensation law’s presumption that his injury resulted solely from his intoxication.

This case underscores the benefits of a thorough investigation by the employer. The medical records included a report by the physician who examined the employee. The report concluded that the employee was intoxicated. The medical records also referred to the employee’s recent history of alcohol abuse, and the diagnosis of his condition included alcoholism. Accordingly, the reviewing court found that there was ample evidence of intoxication. From such evidence and the description of the fall, the board was able to reasonably conclude that the fall occurred when the employee lost his balance as a result of intoxication. The presumption relied on by the employee was rebutted, and there was no evidence of any cause for the fall other than intoxication. The Supreme Court of New York, Appellate Division, noted that substantial evidence supported the board’s findings and affirmed the decision.5

Recommendations

Chiefs should consult their department’s legal advisor and police psychologist in an effort to understand the many state and federal laws that might come into play should an officer with alcoholism be injured on the job. Making sure that a department’s policies and rules are clear about the need to adhere to standards of conduct is an essential first step to avoiding discrimination claims or failure to accommodate.

Having and publicizing a competent employee assistance program (EAP) with experienced police psychologists or psychiatrists available are important. When an EAP is coupled with a trained peer-to-peer intervention effort, many potentially career-ending events may be avoided.

In all cases where an on-the-job injury occurs and alcohol use or abuse is suspected, a thorough investigation is essential.

Notes:

1 Gacioch v. Stroh Brewery Co., 466 N.W. 2d 302 (Mich. Ct. App. 1990).

2 Bilben v. City of Wheaton, 1995 Minn. App. LEXIS 252.

3 City of Lindsay v. Workers’ Compensation Appeals BD., 2002 Cal. App. Unpub. LEXIS 4817.

4 Berglund v. Kozlak’s Royal Oak Rest, Inc., 2015 Minn. App. Unpub. LEXIS 552.

5 Smith v. LSI Lighting Servs., 291 A.D.2d 606 (2002).


Please cite as

John M. (Jack) Collins, “Will Alcoholism Qualify for Workers’ Comp Coverage?” Chief’s Counsel, Police Chief 87, no. 5 (2020): 14–16.

The post Chief’s Counsel: Will Alcoholism Qualify for Workers’ Comp Coverage? appeared first on Police Chief Magazine.

This content was originally published here.

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