CLAIM NO. E707367
Before the Arkansas Workers’ Compensation Commission
OPINION FILED SEPTEMBER 3, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by DANIEL WREN, Attorney at Law, Little Rock, Arkansas.
Respondent represented by MICHAEL RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
[1] OPINION AND ORDER[2] The respondent appeals a decision of the Administrative Law Judge filed on January 12, 1998, finding that claimant rebutted the presumption that his injury of June 5, 1997, was substantially occasioned by the use of illegal drugs. Based upon our de novo
review of the entire record, we find that the claimant has failed to meet his burden of proof. Therefore, we find that the decision of the Administrative Law Judge must be reversed. [3] The evidence reveals that claimant sustained an injury on June 5, 1997, when he fell approximately 10 feet when the scaffolding he was standing on collapsed. As a result of the fall, claimant sustained bilateral calcaneal fractures of both heels. When claimant presented to the emergency room for treatment, a drug screen was performed to detect the presence of illegal drugs or alcohol. The drug screen results were introduced into evidence as Joint Exhibit 1-7 and revealed the presence of cocaine metabolites. At the hearing held on December 16, 1997, claimant admitted that he smoked a rock of crack cocaine at approximately 6 p.m. on the night before the accident. [4] Ark. Code Ann. § 11-9-102(5)(B)(iv) (Repl. 1996) provides:
“Compensable injury” does not include:
. . . .
[5] In the present case, the evidence reveals that claimant and his co-worker, James Summerhill were in the process of framing a house on June 5, 1997, when claimant fell off of scaffolding sustaining serious injuries to both heels of his feet. The evidence reveals that claimant and his co-workers were preparing to “fly the ridge” over a small section on the left hand side of the house which they were framing. Claimant testified that he advised his co-worker, Mr. Summerhill, to put scaffolding together so that they could proceed with “flying the ridge”. Claimant described the incident as follows:(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 or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.
(c) Every employee is deemed by his performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee’s body.
(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 utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.
[6] When asked if he had checked the scaffolding to make sure it would support his weight before climbing on the scaffolding, claimant responded “No. James has always built good scaffolding and we never had no problems. We had done and put all the main structure up and he had moved the scaffold around to several points, so I — I trusted him.” [7] Claimant’s co-worker, James Summerhill, was asked on direct examination “When you built the scaffolding did you tack or nail down both ends to the wall?” To which he responded “I — I got mine and I was on the way to the other side and — and it — and Vernon said it would be all right and we just started flying the ridge.” [8] Undisputedly, at the time of claimant’s accident cocaine metabolites were present in claimant’s system. Accordingly, the rebuttable presumption created by Ark. Code Ann. §11-9-102(5)(B)(iv)(b) (Supp. 1997) is applicable. See Eugene Esterv. National Home Centers, Inc., ___ Ark. App. ___, ___ S.W.2d ___ (March 18, 1998). Moreover, the rebuttable presumption created by this statute has been found constitutional. See, Eugene Ester v.National Home Centers, supra; see also Tracy Reddick v. BinkleyCompany, Full Commission Opinion May 15, 1998 (E603208); AndreJefferson v. Continental Loss Adjusting, Full Commission Opinion April 11, 1997 (E405575). [9] Claimant argues and the Administrative Law Judge found that claimant rebutted the presumption in proving that claimant’s injury was caused by “a collapsing scaffold used in the construction, and not because the claimant had used an unauthorized drug the day prior to the injury.” Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Weaver v. WhitakerFurniture Company, 55 Ark. App. 400, 935 S.W.2d 584 (1996);Eugene Ester v. National Home Center, supra. After weighing claimant’s testimony, and that of Mr. Summerhill, we find that claimant failed to prove by a preponderance of the credible evidence that his accident and injury were not substantially occasioned by the use of cocaine. Mr. Summerhill’s testimony specifically revealed that claimant was aware of the fact that the scaffolding was not nailed down on both ends. Mr. Summerhill testified that after nailing down the scaffolding on one end he was in the process of walking to the other end of the scaffolding when he was stopped by claimant. It was at that point, that claimant stated it would be alright to proceed with “flying the ridge.” Mr. Summerhill wanted obviously to secure the scaffolding, but claimant, the foreman, said there was no need. Why then should Summerhill do otherwise? If claimant did not want his end secured, that was his prerogative. In our opinion, this disregard of his own personal safety indicates an impaired judgment on claimant’s behalf. [10] The dissent suggests that Summerhill had to be impaired for our finding to be logical. We respectfully disagree with dissent’s analysis. Our de novo review of the record reveals that Summerhill had the presence of mind to not only attempt to secure the scaffolding, but to also use quick judgment to safely protect himself from bodily harm when the unsecured scaffolding did collapse. Claimant displayed neither presence of mind nor quick judgment. Rather, claimant’s actions, unlike the actions of Summerhill who wanted to take precautionary measures, evidence impaired and drug influenced judgment. Admittedly Summerhill was placed in a potentially dangerous situation when claimant, his foreman, stopped him from securing the scaffolding, but this does not change our finding that claimant was impaired. Once the foreman okayed the scaffolding, it was not Summerhill’s position to argue otherwise; and in our opinion this does not imply that Summerhill was under the influence of illegal drugs. [11] We find that the greater weight of the credible evidence establishes that claimant’s accident is attributable to his impaired judgment. In our opinion, claimant’s actions of climbing up on the scaffolding which was not nailed down on his end was a sheer disregard for his own personal safety which strongly suggests impairment resulting from drug use. See Tracy Reddick v.Binkley, Full Commission Opinion May 15, 1998 (E603208). The greater weight of the credible evidence in the record indicates that claimant’s impairment was caused by the use of cocaine which claimant admittedly smoked on the night prior to claimant’s accident. While claimant testified that he trusted his co-worker’s ability to construct scaffolding, when claimant stopped his co-worker from completing the job and insisted that they begin “flying the ridge” before the scaffolding was secure, we are not persuaded to find that the accident was substantially occasioned by actions on his co-worker’s behalf. Rather, the evidence reveals that the accident was substantially occasioned by claimant’s impaired judgment in climbing upon the scaffolding before allowing his co-worker to properly secure it on both ends. [12] Accordingly, we find that claimant’s injury was substantially occasioned by the use of cocaine and that claimant has failed to rebut the presumption that the injury was substantially occasioned by the use of cocaine by a preponderance of the credible evidence. Therefore, the decision of the Administrative Law Judge is hereby reversed. [13] IT IS SO ORDERED.Well when we — got out there, me and James, we had a rafter on his side and we had a rafter on my side, and we — we got them stuck up. And I walked out to the middle where he was at and reached down to raise the ridge up. An Neil as on the other wall. He had a joist and stuff to stand on over there. So we put him over there. We was raising it up and we got it about chest high, and — and the scaffold had a board stuck underneath it to brace it, and — and it just teetered off the wall. It just, you know, kind of walked off the wall, like James said. And I came down, and James flipped over here and caught the wall. And I just came down with the rafter I was holding and the ridge.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[14] Commissioner Humphrey dissents. [15] DISSENTING OPINION[16] I must respectfully dissent from the opinion of the majority finding that claimant failed to rebut the statutory presumption that his injury was substantially occasioned by the use of illegal drugs. [17] Claimant was a foreman for this employer. He stated that he was not impaired when he reported for work on June 5, 1997. He acknowledged smoking a small rock of crack cocaine the night before the injury, but indicated that he only felt the effects of the cocaine for ten minutes. Claimant did not report for work until more than twelve hours after smoking the cocaine. [18] James Summerhill was responsible for constructing the scaffolding. He believed that the scaffolding was safe. More important, he demonstrated this belief by climbing on the scaffolding with claimant. Summerhill stated that he has observed co-workers who appeared impaired. However, he opined that claimant was not behaving in a manner that would suggest impairment. Clearly, Summerhill would have disregarded claimant’s advise with respect to the second nail if, in fact, he believed that claimant was impaired, or that the scaffolding was unsafe without the additional nails. [19] The majority concludes that “claimant’s actions of climbing up on the scaffolding which was not nailed down on his end was a shear [sic] disregard for his own personal safety which strongly suggests impairment resulting from drug use.” The fallacy in the majority’s reasoning is evident: the logical extension of this analysis compels the conclusion that both men were impaired. This is so because both claimant and James Summerhill used the scaffolding. However, Summerhill testified that he does not engage in the use of illegal drugs. Moreover, there is no evidence to suggest otherwise. [20] The majority reasons that claimant’s decision to forego the nail on his end of the scaffolding was entirely his prerogative, and was inconsequential to Summerhill. The notion that only claimant was placed in a precarious position is patently absurd. Common sense suggests, and the evidence in this case proves, that this is simply erroneous. Summerhill explained that the scaffolding became a giant teeter-totter, throwing him eleven feet upward. He caught himself on some framing and maneuvered his body so that he would land on the ceiling. In my opinion, Summerhill narrowly escaped injury. It was indeed fortuitous that he fared so well. Regrettably, claimant was not so lucky. [21] I would also note that claimant had been on the job for 4-5 hours prior to the accident. During this time frame, claimant’s duties included the operation of a circular saw, the use of which required a great deal of dexterity due to the intricacy of the cuts. However, he performed this and his remaining duties without incident until the scaffolding accident. [22] In my opinion, there is not a glimmer of evidence in the record which supports a finding that claimant’s judgment was impaired at the time of his injury. Thus, I am persuaded that claimant has rebutted the statutory presumption. [23] For the foregoing reasons, I respectfully dissent. [24] PAT WEST HUMPHREY, Commissioner