First Quarter 2017

Wisconsin

By: Bryan Paradise

Question:  Under Wisconsin Law, if an employee tests positive for drugs, can the employer deny or limit benefits of his or her workers’ compensation claim?

Short Answer:  For injuries prior to March 2, 2016, where an employee’s intoxication caused the accident the employee is entitled to a 15% decrease in compensation with a maximum $15,000 reduction.  For injuries after March 2, 2016, an employee cannot recover indemnity or death benefits where the employer proves a violation of a drug or alcohol policy caused the injury.  Regardless of the date, it is the employer’s burden.  Wis. Stat. § 102.58.

Discussion:  Wisconsin Statute section 102.58 now reads in pertinent part:  “If an employee violates the employer’s policy concerning employee drug or alcohol use and is injured, and if that violation is causal to the employee’s injury, no compensation or death benefits shall be payable to the injured employee or a dependent of the injured employee.”  There has been no case law interpretation of the new statute to date.  However, the plain language of the statute arguably alters the requirements of proof for an employer from proving intoxication and an injury resulting from the intoxication to the violation of a policy and a causal connection between the violation of the policy and the injury.  I expect applicants will argue in the absence of a written policy the new statute is not applicable.

Prior to March 2, 2016, Wisconsin Statute section 102.58 provided in pertinent part that “if injury results from the intoxication of the employee by alcohol beverages…, or use of a controlled substance…, or a controlled substance analog…, the compensation, and death benefit provided in this chapter shall be reduced 15% but the total reduction may not exceed $15,000.”  The burden of proof was on the employer to establish not only the fact of intoxication but also a causal connection between the condition and the injury or accident.  Haller Beverage Corporation v. DILHR, 49 Wis. 2d 233, 181 N.W.2d 418 (1970).  In Haller Beverage Corporation, the applicant was involved in an automobile accident. The employer provided expert testimony to establish intoxication and evidence that refuted other potential reasons, other than intoxication for the automobile accident, such as the presence of a deer.  Nevertheless, the court held the employer failed to present any evidence that the intoxication caused the accident and thus failed to meet its burden. 

In a more recent case, Heritage Mutual Insurance Co. v. Larsen, 2001 WI 30, 242 Wis.2d 47, 624 N.W.2d 129, the applicant, who was a traveling employee, went to a bar and became intoxicated.   His plan was to stay at a trailer he owned prior to a meeting with clients the following day.  He had issues getting in the trailer, so he broke a window and found himself awake on the trailer floor having been subjected to the 25-degree temperatures through the night, resulting in frostbite and ultimately amputation of some of his fingers and thumbs.   Id. The bulk of the case discussed issues pertinent to traveling employees, but the issue of decreased compensation was also discussed.  The Commission determined that the applicant was intoxicated based on his testimony regarding the number of drinks he had and determined that his intoxication caused him in part to fall asleep and remain asleep for a period of time sufficient to cause injury.  The Circuit Court and the Court of Appeals both disagreed with the Commission’s finding indicating that the employer had failed to meet its burden that the intoxication caused the injury.   The Supreme Court found that while “there is no direct evidence in the record of intoxication or that intoxication caused [the applicant] to remain asleep for an extended period, or that [applicant’s] extended exposure to the cold caused his injury, these inferences may reasonably be drawn from the record.” Id. at ¶ 61.  The Supreme Court cited to the impressions of a treating physician as credible and substantial evidence to establish a causal link between the applicant’s intoxication and his loss of consciousness and the injury.  Id. at ¶ 62.