James River Corp. v. Employment Div., AB-99

• Citation: 765 P.2d 217,94 Or.App. 268
• Decision Date: 07 December 1988
• Docket Number: AB-99
• Parties: JAMES RIVER CORPORATION, Petitioner, v. EMPLOYMENT DIVISION and Steven G. Gribble, Respondents. 88-; CA A47539.
• Court: Court of Appeals of Oregon

Page 217

765 P.2d 217

94 Or.App. 268

JAMES RIVER CORPORATION, Petitioner, v. EMPLOYMENT DIVISION and Steven G. Gribble, Respondents.

88-AB-99; CA A47539.

Court of Appeals of Oregon.

Argued and Submitted Oct. 31, 1988.

Decided Dec. 7, 1988.

Steven J. Nemirow, Portland, argued the cause for petitioner. With him on the brief were Richard N. Van Cleave and Spears, Lubersky, Bledsoe, Anderson, Young & Hilliard, Portland.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent Employment Div. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

No appearance for respondent Steven G. Gribble.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ. RICHARDSON, Presiding Judge.

Claimant was discharged for being intoxicated while at work at employer's paper mill. His condition was the culmination of a day of heavy drinking which preceded his reporting to work. Employer seeks review of EAB's decision that, because claimant is an alcoholic, his misconduct was not "wilful," ORS 657.176(2)(a); OAR 471-30-038(3), and he is therefore entitled to unemployment compensation. We reverse and remand.

EAB reasoned:

"We would point out that our affirmation [of the referee] is based upon our conclusion that the claimant was an alcoholic and had no control over his drinking. His condition precludes a finding that he consumed alcohol before coming to work wilfully. It necessarily follows that his actions in reporting for work while intoxicated cannot be found to be either wilful or intentional.

"Although the referee may have been overly broad in stating his conclusion that, 'The disease of alcoholism renders the individual incapable of controlling his desire for alcohol', the Oregon Courts have recognized that the disease of alcoholism prevents the person from making the necessary 'wilful' determinations contemplated in OAR 471-30-038(3). Kaeding v. [Employment Division], 72 Or App 392, 695 P2d 966 (1985)."

Employer and Division disagree with that reasoning. Division argues that EAB has wrongly construed our decisions in Kaeding v. Employment Division, 72 Or.App. 392, 695 P.2d 966 (1985), and Christensen v. Employment Division, 66 Or.App. 309, 673 P.2d 1379 (1984), as establishing an absolute rule that a "claimant who is an alcoholic and who was discharged for behavior related to alcohol could not have acted wilfully because of his or her illness." According to Division, Christensen and Kaeding mean instead that it is a question of fact, rather than of law, whether an individual's conduct is wilful or is caused by the condition, and EAB applied an incorrect legal standard.

The claimant in Christensen was fired for absenteeism during intermittent periods when he was unable to abstain from drinking. We reversed and remanded EAB's denial of benefits as lacking evidentiary support:

"The referee found that claimant's absences were caused by an acute illness (undoubtedly alcoholism) over which he had no control. EAB reversed. It recognized that claimant suffers from alcoholism, but it found that, because each lapse from sobriety necessarily occurred during a period of sobriety, and because claimant had shown the ability to control his disease, he failed to do what was necessary to maintain that control. EAB's position, apparently, is that an alcoholic who has some success in combating the disease but who then has a relapse is responsible for the results of that relapse, while one who never has any success in controlling the disease is not responsible for its results. It apparently did not consider the possibility that a relapse may in itself be a part of the disease, although the record contains support for such a possibility.

"There is no evidence in the record for EAB's peculiar view of alcoholism. The only evidence is that control of alcoholism is a constant struggle." 66 Or.App. at 311-12, 673 P.2d 1379. (Footnotes omitted.)

In Kaeding v. Employment Division, supra, we used similar reasoning and reversed EAB's denial of compensation to a claimant who was terminated for failing to report to work without notifying his employer:

"This case is analogous to Christensen. Although EAB acknowledged that claimant's absences were due to his alcoholism, it failed to consider that his failure to call in might have been caused by his disease also. It is clear from the order that EAB's disqualification hinged on claimant's failure to call in and not on his absence. If, in fact, claimant's failure to call in was caused by his...