CLAIM NO. E910521
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JUNE 18, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JAY TOLLEY, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by HONORABLE R. SCOTT MORGAN, Attorney at Law, Pine Bluff, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals from an Administrative Law Judge’s opinion filed October 18, 2002. In that opinion and order, the Administrative Law Judge found that the claimant has failed to rebut the presumption that his trucking accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders. The Administrative Law Judge did not make findings on the other issue presented: whether or not the claimant was performing employment services at the time he became injured. After conducting a denovo review of the entire record, we find that the claimant has failed to rebut the rebuttable presumption that his accident was substantially occasioned by the use of an illegal drug, pentobarbital. In addition, we find that the claimant deviated from his employment services when he inexplicably moved behind the wheel of a company truck and began to drive away while his supervisor was relieving himself along the side of the road. Under these circumstances, we find that the claimant was not performing employment services when he wrecked the truck shortly thereafter. Consequently, we affirm the Administrative Law Judge’s denial of benefits.
The 23-year-old claimant was employed as a chicken catcher. He was killed during a motor vehicle accident which occurred on the night of September 3, 1999. The claimant’s uncle, Leo Amador, was working with the claimant when the accident occurred and testified at the hearing. Leo was the assigned driver that day. The claimant did not have a driver’s license and had never driven the truck “on the road” before. Although the claimant had occasionally (not regularly) driven the truck “at the farms,” driving the truck was not a part of his regular duties.
The night in question, Leo got out of the truck to go to the bathroom, and while he was gone, the claimant unexpectedly moved into the driver’s seat. Leo testified that the claimant began to drive the truck before he got back in the cab, requiring him to jump to get into the vehicle. Leo testified that he told the claimant to stop. The claimant had driven for about two minutes along a dirt road when the accident occurred after he failed to negotiate a curve at the bottom of a hill and failed to use the correct foot pedal to stop the truck.
An autopsy revealed the presence of butabarbital and pentobarbital in the claimant’s blood. Leo testified that he did not know whether or not the claimant took illegal drugs or prescription drugs. He stated that he did not believe the claimant took illegal drugs. The Administrative Law Judge found that the claimant’s claim was not compensable under Ark. Code Ann. § 11-9-102(4)(B)(iv).
Ark. Code Ann. § 11-9-102(4)(B)(iv) (Supp. 2001) provides that a compensable injury does not include:
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physicians’ orders.
* * *
(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs used in contravention of the physician’s orders did not substantially occasion the injury or accident.
Dorland’s Illustrated Medical Dictionary, 27th Edition, defines butabarbital sodium as a barbituric acid derivative used as a sedative and hypnotic. Pentobarbital is defined as a barbiturate also used as a sedative and hypnotic. The definition for barbiturate states that some of this class of drug have a high potential for abuse and are classified as controlled substances.
The Arkansas Workers’ Compensation Law does not define the meaning of the term “illegal drugs.” However, Ark. Code Ann. § 5-64-401(c) provides that “[i]t is unlawful for any person to possess a controlled substance or counterfeit substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this chapter.” Ark. Code Ann. §5-64-101(d) defines “controlled substance” as “a drug, substance, or immediate precursor in Schedules I through VI.” The schedule of controlled substances is promulgated by the Director of the Arkansas Department of Health. See Ark. Code Ann. § 5-64-201. Our research indicates that pentobarbital is a Schedule II controlled substance under the State of Arkansas Controlled Substances List promulgated by the Director of the Arkansas Department of Health. In addition, our research indicates that it is not necessary to introduce evidence of regulations of the State Health Department regarding controlled substances promulgated pursuant to statutory authorization. See Williams v. State, 23 Ark. App. 121, 743 S.W.2d 402 (1988); Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982). Therefore, absent any evidence that the claimant’s pentobarbital was obtained directly from or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice, we interpret that the pentobarbital found in the claimant’s body was an illegal drug within the meaning of Ark. Code Ann. § 11-9-102(4)(B)(iv).
With regard to the circumstances surrounding the claimant’s truck wreck, we note that no evidence was presented that the accident was in any way unavoidable, or not the claimant’s fault. No evidence was presented that the claimant absolutely did not use drugs. Leo Amador testified that he did not know if the claimant used drugs, that Miguel had never driven the truck outside of the farms before, that his move into the drivers seat that night was unexpected, and that the accident occurred when the claimant was unable to negotiate a curve and used the wrong foot pedals.
Specifically, the claimant’s action in inexplicably taking control of the parked truck is indicative of impaired judgment, and his later failure to depress the correct foot pedal is indicative of impaired cognitive function. Based on the foregoing circumstances, we find that the Administrative Law Judge correctly found that the claimant failed to rebut the presumption that his accident and resultant death were substantially occasioned by the use of an illegal drug.
Even if the claimant had been able to rebut the presumption, which he did not do, we find that his injuries would not be compensable as they did not arise during the course of performing employment services, as he was not performing his employment duties when he inexplicably moved behind the wheel of a parked truck and drove away as his supervisor was relieving himself on the side of the road. We also note that the claimant was not licensed to drive the truck. His actions were thus illegal as well as in contravention of the employer’s rules. The claimant’s action in driving and wrecking his employer’s truck under these circumstances neither directly nor indirectly advanced his employer’s interests. Quite to the contrary, we find that the claimant deviated from his employment services when he got behind the wheel of the truck and began to drive away.
Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we affirm the Administrative Law Judge’s denial of benefits in this case.
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ JOE E. YATES, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION
SHELBY W. TURNER, Commissioner
For the following reasons, I respectfully dissent from the MajorityOpinion, which affirms the decision of the Administrative Law Judge.
Facts
The deceased claimant was killed while in the process of driving a truck for respondent employer. Mr. Leo Amador, the claimant’s supervisor and cousin, was the sole witness at hearing. He testified that he and the claimant were going to “pick up chickens” on the day in question. See Hearing Transcript, page 8. Mr. Amador testified that he had been driving the truck when he got out to attend to a call of nature, and when he returned, the claimant had moved into the driver’s seat. Id., page 10. Mr. Amador testified that the claimant proceeded to drive the truck forward, and that he had to “jump to the passenger side.” Id., page 12. Mr. Amador testified that he told the claimant to stop so that he could drive. Id. Mr. Amador testified that although claimant was not the “assigned driver,” he did occasionally drive the truck “there at the farms.” Id., page 13. Mr. Amador stated that the claimant did not possess a driver’s license. Id., page 14. He testified that he had known the claimant for years, and that there was nothing unusual about the claimant’s appearance or behavior on the day in question. Id., pages 18-20.
Mr. Amador testified that the claimant drove the truck for approximately two minutes before the fatal accident took place. Id., page 22. In sum, Mr. Amador testified that the fatal accident occurred when the claimant failed to negotiate a curve. Id., pages 22-25. Mr. Amador also stated that the claimant failed to use the right pedal. Id., page 34.
An analysis of the claimant’s blood was performed, and it was discovered that claimant’s blood contained trace amounts of “butabarbital” and “pentobarbital.” See Claimant’s Exhibit, page.
The respondents defended this claim on the ground that the claimant’s death was rendered non-compensable by virtue of Ark. Code Ann. §11-9-102(4)(B)(iv), which states that injuries “substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders” are not compensable. Alternatively, the respondents contended that the claimant’s death was rendered non-compensable by virtue of Ark. Code Ann. §11-9-102(4)(B)(iii), which states that injuries incurred at a time when employment services were not being performed are not compensable.
Analysis
I. A.C.A. § 11-9-102(4)(B)(iv)
This section states that the presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of those substances.
My review of the evidence indicates that the respondents failed to produce evidence sufficient to trigger the presumption. The only evidence that they produce on this point is the laboratory report which states that the claimant’s blood contained traces of “butabarbital” and “pentobarbital.” The respondents produce no evidence whatsoever on the issue of whether “butabarbital” and “pentobarbital” are “illegal drugs” within the meaning of the section, or alternatively were being used by the claimant in contravention of a physician’s orders. Moreover, I do not find it to be “common knowledge” or otherwise within the kin of the layperson that these two substances are illegal drugs. Therefore, I find that the presumption was not triggered in this case.
The majority concludes that the presumption was triggered in this case despite their apparent acknowledgment that the respondents failed to produce any evidence whatsoever on the issue of whether the two substances detected in claimant’s blood were “illegal drugs” within the meaning of the statute. In reaching this conclusion, the majority notes that pentobarbital is a “Schedule II controlled substance” under the State of Arkansas Controlled Substances List. The majority then states that absent any evidence that the claimant’s pentobarbital was obtained directly from or pursuant to a valid prescription or order of a physician, the statutory presumption was triggered. Finding a lack of evidence that the claimant had a prescription for pentobarbital, the majority concludes that the presumption was triggered, and that the claimant failed to rebut the presumption.
Essentially, the majority has determined that once a showing of the presence of a “controlled substance” has been made, the burden is then upon the claimant to show that he took the controlled substance pursuant to a valid prescription. Regardless of whether this determination is legally correct, I find that even if the presumption was triggered, the evidence indicates that the claimant produced evidence sufficient to rebut the presumption. The evidence indicates that the claimant’s accident occurred not because he was under the influence of an intoxicant, but rather because he was inexperienced in driving the truck. Mr. Amador testified that the claimant sometimes drove the truck “around the farms,” but that he had never driven the truck on roads before. Moreover, Mr. Amador testified that there was nothing abnormal about the claimant’s appearance or behavior prior to the fatal accident.
II. Ark. Code Ann. § 11-9-102(4)(B)(iii)
Alternatively, the majority concludes that the claimant’s fatal injury is not compensable because it occurred at a time when employment services were not being performed. In support of this conclusion, the majority notes that the claimant did not possess a driver’s license, and that the claimant’s driving the truck was “in contravention of the employer’s rules.”
I must respectfully disagree with the reasoning of the majority that the claimant was not performing “employment services” when he was driving the truck down the road, en route to deliver or pick up chickens. The Supreme Court has stated that the key issue is whether the claimant was advancing his employer’s interest directly or indirectly at the time of the accident. See Pifer v. Single Source Transportation, 347 Ark. 851, ___ S.W.3d ___ (2002); Collins v. Excel Specialty Products, 347 Ark. 811, ___ S.W.3d ___ (2002). In short, it is clear that the claimant was advancing his employer’s interest directly by driving the truck to its destination, despite the facts that he did not possess a driver’s license, and that his action may have been against his employer’s “rules.” Moreover, even if the respondent employer had a specific rule that claimant was not to drive the truck, it seems that Mr. Amador, the claimant’s supervisor, acquiesced in claimant’s driving the truck when he allowed him to continue driving for approximately two miles before the fatal accident occurred.
_______________________________ SHELBY W. TURNER, Commissioner