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University of Baltimore Law Review Volume 29 Article 5 Issue 2 Spring 2000 2000 Comments: A Comprehensive Review of Maryland Workers' Compensation and Disqualification Due to Intoxication: "Sole Cause" Is Not the Only Way to Proceed Nicole Pastore University of Baltimore School of Law Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr Part of the Law Commons Recommended Citation Pastore, Nicole (2000) "Comments: A Comprehensive Review of Maryland Workers' Compensation and Disqualification Due to Intoxication: "Sole Cause" Is Not the Only Way to Proceed," University of Baltimore Law Review: Vol. 29: Iss. 2, Article 5. Available at: http://scholarworks.law.ubalt.edu/ublr/vol29/iss2/5 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. A COMPREHENSIVE REVIEW OF MARYlAND WORKERS' COMPENSATION AND DISQUALIFICATION DUE TO INTOXICATION: "SOLE CAUSE" IS NOT THE ONLY WAY TO PROCEED I. INTRODUCTION The basic premise of the workers' compensation system is that, in the event of a workplace injury, regardless of fault, workers for­ feit their right to sue employers in exchange for a guaranteed and defined set of benefits.! However, workers' compensation claims have continually increased and now cost the United States economy billions of dollars.2 One reason is the rise in alcohol and drug re­ lated workplace accidents.3 A 1990 study conducted by the National Council on Compensation Insurance, Inc., (NCCI) discovered that there is a high correlation between per capita alcohol consumption, alcohol related job injuries, and average workers' compensation costs.4 The NCCI concluded that a "[ten] percent reduction in alco­ hol consumption in 1989 could have reduced workers' compensa­ tion costs by $2.5 billion."5 Therefore, "state workers' compensation laws have been increasingly used as a tool to discourage the use of drugs and alcohol in the workplace. "6 Since 1993, the Maryland Legislature has been involved in a continuing effort to limit the ability of employees to receive work­ ers' compensation benefits when injured in alcohol and drug re­ lated accidents. These attempts have focused on lowering the em­ ployer's and insurer's burden for establishing the defense of drug or alcohol intoxication under section 9-506 of the Labor and Em­ ployment Article of the Maryland Code.7 Prior to October 1, 1998, the law required the employer to compensate a worker injured on 1. See, e.g., ARTHUR LARsON & LEX K LARsON, LARsON'S WORKERS' COMPENSATION § 1.10, at 1-1 (Matthew Bender Desk ed. 1999). 2. See Kim Lucky & Ann Bok, Drug-Free Workplace Programs: A Review of State 1<-]­ forts, "reprinted" in National Council on Compensation Insurance, Inc. 1 (1996). 3. See id. 4. See id. 5. [d. 6. [d. 7. See infra Part V,B for a complete legislative history. 283 284 Baltimore Law Review [Vol. 29 the job while intoxicated unless the employer could demonstrate by substantial evidence that the sole reason for the injury was intoxica­ tion.8 This "sole cause" standard of review has proved an onerous burden for an employer to satisfy.9 Therefore, section 9-506 of the Labor and Employment Article of the Maryland Code was amended in 1998 to replace the standard of review for workers' compensation benefits resulting from a work­ place injury caused by drugs or alcohol.1° Under the new standard all benefits, except for medical treatment, are denied to a covered employee if the primary cause,l1 as opposed to the former sole cause, of an accidental personal injury12 is: (1) the intoxication of the em­ ployee while on duty, or (2) the effect of a controlled dangerous substance, the use of which was not in accordance with a prescrip­ tion of a physician.13 Now the employer has the burden of proving that the effect of the controlled dangerous substance or the alcohol was only the primary cause of the accident.14 By enacting this legislation, Maryland has essentially fallen in line with other states who have tried to reduce the number of: [D]rug-and-alcohol related workplace accidents by denying workers compensation benefits to employees if they were in­ jured on the job due to intoxication or drug use. Currently, forty-four states deny benefits to workers injured due to in­ toxication; thirty-six of those states include the use of drugs under the statute. Another four states reduce benefits to workers injured due to drug use or intoxication. Eleven 8. See MD. CODE ANN., LAB. & EMPL. § 9-506(f) (1) (1991). 9. See infra Part V.A (discussing the "sole cause" standard of review in Maryland). 10. See MD. CODE ANN., LAB. & EMPL. § 9-506 (1999). 11. For a discussion of primary cause, see infra notes 271-74 and accompanying text. 12. Accidental personal injury is defined as: (1) an accidental injury that arises out of and in the course of em­ ployment; (2) an injury caused by a willful or negligent act of a third person directed against a covered employee in the course of the em­ ployment of the covered employee; or (3) a disease or infection that naturally results from an accidental injury that arises out of and in the course of employment, including: (i) an occupational disease; and (ii) frostbite or sunstroke caused by a weather condition. MD. CODE ANN., LAB. & EMPL. § 9-101 (1999). 13. See MD. CODE ANN., LAB. & EMPL. § 9-506(b)-(c) (1991). 14. See id. § 9-506(d) (forbidding recovery if the primary cause of an accidental personal injury was intoxication). 2000] "Sole" Cause in Workers' Compensation 285 states have "rebuttable presumption" provisions relating to injuries due to intoxication or drugs. IS This Comment describes the national development of the work­ ers' compensation system,16 illustrates the nature of workers' com­ pensation in general terms, and provides a background for the workers' compensation system in MarylandP It discusses the statu­ tory defense of intoxication18 and explains the effects of intoxica­ tion and drug use in the workplace.19 Maryland case law relating to sole cause is examined,20 including the legislative history of Mary­ land's workers' compensation statute as it pertains to alcohol or drug-induced injuries. 21 The Comment compares and contrasts ex­ isting intoxication defense statutes in other states and examines rel­ evant case law. 22 This Comment concludes with a prediction of is­ sues Maryland courts may encounter as a result of modifying the intoxication defense under the workers' compensation statute.23 II. NATIONAL DEVELOPMENT OF THE WORKERS' COMPEN­ SATION SYSTEM Prior to 1800 the common law principle of respondeat superior required a master to be liable for injuries caused by the negligence of a servant to fellow servants and to third parties.24 In 1837, Lord Abinger created an exception to this rule in Priestley v. Fowler. 25 There, a butcher was held not liable when his servant negligently overloaded a van that subsequently broke down and injured an­ other employee.26 The court reasoned that holding a master liable for all mishaps would be unfair, as there were many that could occur. 27 15. See infra Appendix. 16. See infra notes 24-71 and accompanying text. 17. See infra notes 73-120 and accompanying text. 18. See infra Part IV.A. 19. See infra Part IV.B. 20. See infra Part V.A. 21. See infra Part V.B. 22. See infra notes 307-69, 315-77, 388-513 and accompanying text. 23. See infra notes 379-87 and accompanying text and Part VII. 24. See LARsON, supra note I, § 4.20, at 2-2 to 2-3; see also RICHARD P. GILBERT & ROBERT L. HUMPHREYS, JR., MARYlAND WORKERS' COMPENSATION HANDBOOK § 1.1-3, at 9-10 (2d ed. 1993); W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAw OF TORTS § 80, at 568 (5th ed. 1984). 25. 3 Mees. & Welsby I, reprinted in 150 Reprint 1030, 1032 (1837). 26. See id. at I, 5, 150 Reprint at 1032. 27. See id. 286 Baltimore Law Review [Vol. 29 From Priestley, three common law defenses developed: (l)im­ plied contract,28 implying that the employer was not liable; (2) as­ sumption of risk,29 absolving the employer of responsibility; and (3) contributory negligence,3o relieving the employer of responsibility if the employee contributed in any way to the injury.31 These defenses greatly reduced an employer's liability.32 Generally, the only time an employer was liable was when the injury was a direct result of the employer's negligence or fault.33 Even then, the employer had a low burden of proof to establish a defense.34 As long as the employer could show reasonably prudent measures were taken to maintain a safe work environment, the courts held the employee to be equally responsible for providing notice to the employer of any unsafe working conditions.35 However, when the employee did notify the employer of an unsafe working condition prior to injury, the em­ ployee would encounter difficulty gathering any witnesses to corrob­ orate the report, as the witnesses were hesitant to testify for fear of retaliation.36 During the Industrial Revolution, there were frequent and se­ vere injuries to factory workers.3? Recognizing this problem, legisla- 28. See BLACK'S LAw DICIlONARY 322 (7th ed. 1999) (defining an implied contract as "[a]n obligation imposed by law because of the conduct of the parties, or some special relationship between them, or because one of them would other­ wise be unjustly enriched").

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