Komalestewa v. Industrial Commission of Arizona, 1 CA-IC 03-0041 (AZ 10/20/2004)

• Decision Date: 20 October 2004
• Docket Number: 1 CA-IC 03-0041.
• Parties: AUSTIN KOMALESTEWA, Petitioner Employee, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent, STONEVILLE PEDIGREE SEED, Respondent Employer, WAUSAU INSURANCE COMPANIES, Respondent Carrier.
• Court: Arizona Supreme Court

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AUSTIN KOMALESTEWA, Petitioner Employee, v. INDUSTRIAL COMMISSION OF ARIZONA, Respondent STONEVILLE PEDIGREE SEED, Respondent Employer WAUSAU INSURANCE COMPANIES, Respondent Carrier.

1 CA-IC 03-0041.

Court of Appeals of Arizona Division One, Department D

Filed October 20, 2004.

Special Action—Industrial Commission, ICA CLAIM No. 20013-370241, Carrier No. WC-905 367138, Administrative Law Judge Stephen W. Pogson, AWARD AFFIRMED.

DON A. FENDON, P.C. Phoenix, Don A. Fendon, Attorney for Petitioner Employee.

Laura L. McGrory, Chief Counsel, Phoenix, Industrial Commission of Arizona, Attorney for Respondent.

CROSS & LIEBERMAN, P.A. Phoenix, By Donald L. Cross, Attorneys for Respondents Employer and Carrier.

OPINION

HALL, Judge.

¶1 Employee Austin Komalestewa ("Komalestewa") appeals the decision of the Administrative Law Judge ("ALJ") finding his claim noncompensable. Komalestewa argues that the ALJ erred by determining that Komalestewa's intoxication at the time of his injury was a substantial contributing cause of his injury, thus barring his workers' compensation claim. See Ariz. Rev. Stat. ("A.R.S.") § 23-1021(C) and (H)(2) (Supp. 2003) (providing that a claim is not compensable if the injured worker's alcohol or substance abuse impairment is a "substantial contributing cause" of the injury, defined as "anything more than a slight contributing cause"). Relying on Grammatico v. Indus. Comm'n, 208 Ariz. 10, 90 P.3d 211 (App. 2004), Komalestewa also argues that, in any event, A.R.S. § 23-1021(C) violates Article 18, Section 8, of the Arizona Constitution by depriving workers of compensation for injuries "caused in whole, or in part, or . . . contributed to" by necessary employment risks or dangers.¹ We conclude that Article 18, Section 8 does not prohibit the Legislature from differentiating between necessary and unnecessary employment risks, and making a legislative determination that an employee whose intoxication contributed to his injury did not suffer an injury "arising out of . . . employment." A.R.S. § 23-1021(C). Because reasonable evidence supports the ALJ's finding that Komalestewa's intoxication was "more than a slight contributing cause" of the injury, we affirm the award.

FACTUAL AND PROCEDURAL HISTORY

¶2 On the morning of November 7, 2001, Komalestewa was working at Stoneville Pedigree Seed ("Employer") tending to a conveyor belt. When the belt "bogged down," he crawled under the belt to put pressure on the drum. His right arm became caught in the belt resulting in serious injury. Komalestewa was flown to the Maricopa Medical Center emergency room, where he was treated and hospitalized for two months. He has not worked since the incident.

¶3 Wausau Insurance Companies ("Carrier") issued a notice of claim status denying the claim. Komalestewa protested the Carrier's denial and the case proceeded to formal hearings before the ALJ.

¶4 The ALJ heard testimony from Komalestewa and his wife, Employer's site manager (Lynn Adams) and Komalestewa's co-worker (Stanley Kisko). Mrs. Komalestewa testified that on the night before the injury, she went to sleep before Komalestewa arrived home. The couple awoke at 5:00 a.m., and Komalestewa dropped her off at her place of employment on his way to work. Mrs. Komalestewa testified that her husband did not appear to be either inebriated or hung over that morning, nor did she smell alcohol on him when she kissed him goodbye.

¶5 Like Mrs. Komalestewa, Adams testified that he did not notice that Komalestewa was intoxicated when Adams spoke to him briefly at 8:00 a.m. on the day of the accident. Kisko testified that he saw no signs Komalestewa had been drinking or was hung over the morning of the accident. However, Komalestewa admitted that on the night prior to his injury he went home, ate, and had four drinks with vodka.

¶6 During a subsequent hearing, the ALJ heard testimony from Mary Richard, a registered nurse, and William Collier, a forensic scientist and toxicologist. Richard, on behalf of the Carrier, interviewed Komalestewa in the hospital approximately one week after the injury. Richard reviewed notes from the emergency transport team that indicated Komalestewa had alcohol on his breath at the time of his transport to the hospital. Richard testified that there was "documentation in the record that [Komalestewa] had tremors under anesthesia," was treated for "DTs" (detoxification tremors), and had his blood drawn at 9:36 a.m.

¶7 On behalf of the Carrier, Collier testified that based on the blood tests taken the day of the accident, he calculated Komalestewa's blood-alcohol content level ("BAC") to have been at least 0.176 at the time of the accident. Collier also testified that at that level, Komalestewa would have "significant . . . critical judgment impairment, muscular incoordination . . . considerably longer reaction time, . . . and made the wrong choices in a panic situation." Based on his experience, Collier opined that Komalestewa's level of intoxication at the time of the injury was a significant contributing factor to the accident.

¶8 Following the hearings, the ALJ initially issued a decision concluding that Komalestewa had sustained a compensable injury. The Carrier and Employer filed a request for review. In his subsequent decision upon review, the ALJ discounted the testimony of both Adams and Kisko, applied A.R.S. § 23-1021(C), and concluded that the claim was noncompensable because Komalestewa's intoxication had substantially contributed to the accident. Komalestewa filed a timely petition for special action review with this court. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(2) (2003) and 23-951(A) (1995).

STANDARD OF REVIEW

¶9 We deferentially review an ALJ's factual findings, but we independently review his legal conclusions. Young v. Indus. Comm'n, 204 Ariz. 267, 270, ¶ 14, 63 P.3d 298, 301 (App. 2003). The constitutionality of a statute is reviewed de novo, beginning with the strong presumption that the statute is constitutional. See, e.g., Lapare v. Indus. Comm'n, 154 Ariz. 318, 321, 742 P.2d 819, 822 (App. 1987). Komalestewa, as the party challenging the constitutionality of § 23-1021(C) and (H)(2), bears the burden of overcoming this presumption. Id. We will declare these statutes unconstitutional only if we are satisfied beyond a reasonable doubt that they conflict with Article 18, Section 8, of our constitution. See Chevron Chem. Co. v. Superior Court, 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982).

DISCUSSION

I. Application of A.R.S. § 23-1023(C)

¶10 We address first the ALJ's determination that Komalestewa's consumption of alcohol was a substantial contributing cause of his injury. See City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 109, ¶ 7, 32 P.3d 31, 34 (App. 2001) (explaining judicial policy is to avoid addressing constitutional issues unless absolutely necessary to resolve a case). Komalestewa argues that the ALJ erred by determining that Komalestewa's use of alcohol rendered his claim noncompensable pursuant to A.R.S. § 23-1021(C). Although Komalestewa does not deny that his BAC level that morning was 0.176, he denies that this substantially contributed to his work-related injury. Komalestewa asserts that the testimony of both Adams and Kisko supports a finding that his intoxication was not a substantial contributing cause to the injury. The Carrier and Employer both respond that the evidence supports the ALJ's contrary finding that Komalestewa's intoxication was more than a "slight contributing cause" of the injury, see A.R.S. § 23-1021(H)(2), thus rendering the claim noncompensable pursuant to A.R.S. § 23-1021(C).

¶11 Before 1996, A.R.S. § 23-1021(A) (1995) entitled an employee to workers' compensation for an injury suffered in an accident "arising out of and in the course of his employment" unless the injury was "purposely self-inflicted." Applying the pre-amendment version of the statute, Arizona courts held that before a workers' compensation claim could be determined to be noncompensable based on intoxication, the employee had to be so impaired as to have effectively abandoned his job. See Producers Cotton Oil v. Indus. Comm'n, 171 Ariz. 24, 25, 827 P.2d 485, 486 (App. 1992) (to be noncompensable, injured employee would have to be so intoxicated as to be incapable of performing his job functions, thus abandoning his employment; employee with 0.21 -0.23 BAC at the time of accident had compensable claim because he continued to work even though intoxicated); Fisher Contracting Co. v. Indus. Comm'n, 27 Ariz.App. 397, 401-02, 555 P.2d 366, 370-71 (1976) (employee must be unable to perform employment functions; benefits awarded with BAC of 0.16); Embree v. Indus. Comm'n, 21 Ariz.App. 411, 413, 520 P.2d 324, 326 (1974) (intoxication was not sufficient to constitute abandonment if employee was capable of performing job duties; employee had BAC of 0.153).

¶12 In 1996, the legislature amended A.R.S. § 23-1021, adding subsection (C), to provide:

An 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 substantial contributing cause of the employee's personal injury or death.

1996 Ariz. Sess. Laws, ch. 130.

¶13 In 1999, the legislature further amended A.R.S. § 23-1021, adding in part subsection (H)(2). 1999 Ariz. Sess. Laws, ch. 331, § 3. Subsection (H)(2) provides that a "`[s]ubstantial contributing cause' means anything more than a slight contributing cause." A.R.S. § 23-1021(H)(2).

¶14 There are no Arizona reported decisions interpreting the effect of the above statutory amendments.² In his opening brief, Komalestewa relies on the above-mentioned abandonment cases to contend the ALJ erred in denying the claim because he...