CLAIM NO. E910817
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 28, 2002
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE MICHAEL LANDERS, Attorney at Law, El Dorado, Arkansas.
Respondent represented by HONORABLE MIKE ROBERTS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed
OPINION AND ORDER
In an opinion filed March 10, 2000, an administrative law judge found that the claimant failed to prove by a preponderance of the evidence that he had suffered a compensable injury while in the employ of the respondent. In an opinion and order dated August 22, 2000, the Full Commission affirmed and adopted the decision of the Administrative Law Judge. The Full Commission remarked that,
In reaching our decision, we note that the Administrative Law Judge stated in his opinion that “except in the most obvious cases, causal connection must be demonstrated by expert medical opinion.” This statement is inconsistent with the Supreme Court’s holding in Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 1990 S.W.2d 522 (1999) that “to be sure, there will be circumstances where medical evidence will be necessary to establish that a particular injury resulted from a work-related incident but not in every case.” Certainly, we are bound by the Supreme Court’s interpretation of the law of workers’ compensation in Arkansas. We also note that the decision in this claim is not dependent upon the Judge’s interpretation of the law and that this error is not grounds for reversal or remand in this instance.
The claimant appealed to the Arkansas Court of Appeals, whose subsequent order made the following remarks:
In his opinion denying benefits to Billings, the ALJ, citing a Full Commission opinion, stated, “Except in the most obvious cases, the existence of a causal relationship must be established by expert medical opinion.” The ALJ found that the record failed to reflect any expert medical opinion establishing such a causal relationship. In affirming and adopting the ALJ’s opinion, the Commission noted that this statement was inconsistent with our Supreme Court’s holding in Wal-Mart Stores, Inc. v. VanWagner, (citation omitted). Nevertheless, without elaboration, the Commission determined that “this error is not grounds for reversal or remand.” However, after specifically stating that the ALJ’s sole basis for denying benefits was inconsistent with our Supreme Court’s precedent, they offered no other basis for the decision to deny benefits.
Concluding that the Commission stated no rational basis for their denial of relief, and that, “the sole basis for the denial of benefits is appellant’s failure to offer medical evidence of a causal connection between his alleged injury and his employment,” the Court of Appeals reversed and remanded.
We have carefully conducted a de novo review of the entire record herein, and it is our opinion that the administrative law judge’s decision is supported by a preponderance of the credible evidence and should be affirmed. We find that the administrative law judge’s determination that the claimant had not met his burden of proof with regard to causation was not based solely upon the lack of medical evidence with regard to causation. The administrative law judge wrote, “. . . why the herniation increased in size in (sic) not apparent in the medical records nor in the testimony presented at the hearing in thismatter.” (Emphasis added.) Further, he wrote that “the evidence”, not the medical evidence, “fails to reflect whether the increase in size of the herniated disc . . . was causally related to his alleged 1999 injury or his previous 1995 back complications.”
As early as 1994, the claimant was diagnosed as having a central disc herniation at the L5-S1 level. In October 1994, the claimant related to Dr. Brown that he had experienced five or six episodes of severe back pain over the last five years. The claimant’s disc herniation was reconfirmed in 1995 and in 1996. Dr. Juckas’ conclusion that the claimant’s September 7, 1999, MRI showed an increase in the size of the herniated disc at L5-S1 when compared with the MRI done in 1995 fails to state the degree of increase. The increase in size could have been minimal, and could have been the result of a degeneration of the claimant’s pre-existing condition, rather than an aggravation of it. There is simply not enough evidence, medical or otherwise, to prove that this increase was caused by the trauma allegedly sustained by the claimant on September 2, 1999. Therefore, we affirm the Administrative Law Judge’s finding that the claimant failed to prove a compensable injury.
However, even if it were determined that the claimant had met his burden of proof with regard to causation, and therefore proved that he suffered a compensable injury, we would find that the issue of intoxication would bar the claimant from receiving benefits. The claimant’s alleged injury occurred on September 2, 1999. Dr. Greg Smart collected a sample of the claimant’s urine on that date, and a subsequent test of this urine returned a positive result for the presence of marijuana. A re-test of the sample at a different laboratory was performed which reconfirmed this result.
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.
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(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.
When the presence of marijuana is detected, the Commission need not determine whether a claimant was a regular or casual marijuana smoker. The documented presence of marijuana in a claimant’s body creates a rebuttable presumption that his injury was substantially occasioned by the use of illegal drugs. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996). Despite this presumption, a claimant may still be entitled to compensation if he proves by a preponderance of the evidence that the illegal drug did not substantially occasion the injury or accident. We find from a preponderance of the evidence that but for the claimant’s impaired state as demonstrated by the presence of marijuana in his body, the claimant could have avoided injury on September 2, 1999.
While Dewane Lum, a witness for the claimant, testified that the claimant’s job required mental alertness, and that he spoke to the claimant briefly on the day of the incident, he also stated that he did not know what marijuana smelled like and did not know what people acted like when they were high on marijuana. The claimant’s supervisor, Joe Roger Hicks, also testified that the claimant’s job required mental alertness. Mr. Hicks testified that the claimant did not appear to be impaired after the accident occurred; but he conceded that it was possible that the claimant may have smoked some marijuana on his lunch break. The claimant’s brother, Scott Billings, testified that he was surprised and disappointed to learn that the claimant used marijuana. Scott Billings testified that he and the claimant drove separate vehicles to lunch on the day of the accident, therefore he was not with the claimant for the entire lunch break. And finally, in an interview with Dr. Elam on September 8, 1999, the claimant denied using marijuana.
The testimony of Mr. Lum, Mr. Hicks, and Mr. Billings does not rebut the presumption that the claimant’s impairment on the day in question caused his alleged injury. Further, the claimant is not a credible witness on this topic, as his denial of marijuana use to Dr. Elam calls his veracity into question. The claimant’s own testimony that he was not impaired as a result of marijuana at the time of his accident, without other proof to rebut the presumption of intoxication, cannot save the compensability of his claim. Oliver v. Weyerhauser, Full Commission Opinion, May 17, 1996 (E411392). The results of a drug test performed on a sample of the claimant’s urine taken on September 14, 1999, twelve days after the alleged incident, are irrelevant.
In summary, we affirm the opinion of the administrative law judge finding that the claimant failed to prove a compensable injury. Alternatively, we would find that he is barred from receiving benefits under Ark. Code Ann. § 11-9-102(4)(B)(iv).
IT IS SO ORDERED.
_______________________________ ELDON F. COFFMAN, Chairman
_______________________________ MIKE WILSON, Commissioner
Commissioner Turner dissents.
DISSENTING OPINION SHELBY W. TURNER, Commissioner
I must respectfully dissent from the opinion of the majority finding that claimant failed to prove that he sustained a compensable injury and that this claim would otherwise be barred by the provisions of Ark. Code Ann. § 11-9-102(4)(B)(iv) (Suppl. 2001).
COMPENSABILITY
Claimant worked at the facility currently known as Plum Creek Lumber for eighteen years. His employment commenced under the previous ownership. Claimant testified that he initially worked as a core layer at the plywood plant. However, he assumed the duties of a quad saw operator within eight years of his employment. On September 2, 1999, he reported for work at 6:00 a.m., performed his duties for five and one-half hours, took a twenty-minute lunch break at 11:30, and returned to the mill. Claimant testified that he resumed his duties at 12:00. He sustained an injury at 2:00 p.m. Claimant furnished the following description of the accident:
The log come [sic] out of the conveyor, it has got four chains on that table and the end of it caught on that chain, which is normal. You go over there, it’s under the catwalk, and you bend over with a cant hook to just kind of lift it up off of the chain where it will come out.
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Well, when I lifted up on the log, I pulled up, I felt my back, felt pain in my back.
Claimant immediately reported the accident to his supervisor, Roger Hicks. He temporarily resumed his duties. However, the pain increased and he was forced to discontinue his work after about one-half hour. He requested medical treatment, and Mr. Hicks drove claimant to the office of Dr. Greg Smart, the company physician.
According to claimant’s medical history, he was treated by Dr. Giles after a work-related back injury in 1995. In 1996, Dr. Giles performed a “lumbar laminectomy and discectomy at 4-5 on the right.”
Dr. Smart prescribed medication and bed rest for the treatment of claimant’s back. He ordered an MRI, and that test was done on September 7, 1999. Dr. Diana T. Jucus interpreted the MRI. In a report dated September 7, 1999, she noted the changes from the previous MRI stating that:
Comparison is made with a prior study dated 6/19/95, showing increase in the size of the herniated disc at L5-S1 and the small disc now seen at L4-5 was not as well appreciated on the prior study and the previously mentioned small posterocentral disc herniation appears less prominent on this examination.
After two visits with Dr. Smart, claimant received a referral to Dr. Wilbur Giles. Ultimately, Dr. Giles admitted claimant to the hospital for surgical intervention. The hospital admission note he prepared on September 29, 1999, included the following history:
THIS GENTLEMAN WAS EXAMINED IN THE OFFICE PRIOR TO HIS SURGICAL PROCEDURE. HE HAS COMPLAINTS OF PROGRESSIVE LOW BACK, LEFT HIP AND LEG PAIN SINCE THE EARLY PART OF SEPTEMBER. HE STATES THAT HE DID INJURE HIS BACK AT WORK ON SEPTEMBER 2ND AND HAS NOT BEEN ABLE TO WORK SINCE THAT TIME. HE DOES COMPLAIN OF PAIN IN THE LOW BACK WHICH RADIATES INTO THE LEFT HIP AND LEG TO THE FOOT. THERE IS ALSO COMPLAINT OF NUMBNESS AND TINGLING INVOLVING THE FOOT. ALL ACTIVITY AFFECTS HIS PAIN. HE IS UNABLE TO FIND A POSITION OF COMFORT. HE HAS BEEN TREATED WITH ANTI-INFLAMMATORY MEDICINES AS WELL AS ANALGESICS AND MUSCLE RELAXANTS WITHOUT SIGNIFICANT IMPROVEMENT. MRI OF THE LUMBAR SPINE DOES SHOW EVIDENCE OF A DISC HERNIATION AT 5-1 ON THE LEFT WITH MIGRATION OF THE FRAGMENT. HE ALSO SHOWS A SMALL POSTEROLATERAL DISC ON THE RIGHT AT 4-5 WHICH IS NOT SYMPTOMATIC. HE IS HERE AT THIS TIME FOR LUMBAR LAMINOTOMY, DISCECTOMY AT 5-1 ON THE LEFT.
Moreover, Dr. Giles documented the results of his clinical examination in the admission note:
HE DOES HAVE DECREASED RANGE OF MOTION OF HIS LUMBAR SPINE WITH FLEXION, EXTENSION AND ROTATION. THERE IS EVIDENCE OF SEVERE LUMBAR SPASM. HE DOES HAVE DIFFICULTY GETTING FROM SITTING TO STANDING POSITION. STRAIGHT-LEG RAISING IS POSITIVE ON THE LEFT TO 40 DEGREES, AND THE ANKLE JERK IS ABSENT.
In my view, claimant proved the requisite causal nexus. His medical history showed that on February 8, 1996, Dr. Giles performed surgery for: “. . . Discogenic displacement at L4-5 on the right with free fragment rupture . . .” Aside from the postoperative treatment course, there is no evidence that he returned to Dr. Giles until after the present work-related injury. Claimant was able to return to work and perform his duties without difficulty until September 2, 1999. On that date, he sustained a specific incident injury. He reported the injury promptly. Although claimant experienced immediate pain, he attempted to complete his shift. However, the pain intensified, resulting in claimant’s request for medical treatment. Respondent employer immediately transported claimant to the company doctor. Medication was prescribed and claimant was excused from work. On September 7, 1999, an MRI showed an increase in the size of a disc herniation. On September 30, 1999, claimant was admitted to the hospital for surgical intervention. The history documented by Dr. Giles upon claimant’s hospital admission is entirely consistent with the hearing testimony.
I find that claimant has proven by a preponderance of the evidence that his back condition is causally related to the September 2, 1999 work-related accident. To support this conclusion, I have considered: that there is no evidence that claimant had back problems after the 1996 surgery; that he performed his duties without difficulty until the accident in 1999; and, the existence of a close temporal relationship between events of significance. Specifically, claimant’s accident produced immediate pain, the accident was reported promptly, he received medical care within about two hours of the incident, objective findings were detected within one week, and surgery was done the same month.
The work-related accident on September 2, 1999, caused an increase in the size of claimant’s disc herniation. An employer takes an employee as he finds him, and pre-existing conditions that are aggravated by employment circumstances are compensable. St. Vincent Infirmary v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). I specifically find that claimant sustained a compensable injury in the form of an aggravation of a pre-existing condition.
INTOXICATION
Claimant described the quad saw and his duties, both of which are complex. The saw has hand controls, and four foot pedals. A panel of buttons and a computer control device are positioned to his left and right, respectively. A mirror was strategically placed, which furnished a back view of the saw. This is monitored by claimant, and he made adjustments, as needed. He stated that every two or three seconds, a log passed through the quad saw. Each log required a separate computation. Before processing each log, he visually inspected it to determine the proper size. Then, claimant computed the correct cut for the upcoming piece of lumber.
On the morning of the accident, claimant processed between 800-900 logs without errors. Most of the work was done on his saw, but he briefly operated the machine of his co-worker, James Manning. After lunch, claimant worked for two hours, again without mistakes. Then, the log got off track on the conveyor belt, and the accident occurred. He explained that it is often unnecessary to request assistance, and he did not do so on the afternoon of the injury. However, claimant would ask for assistance if the log is too heavy.
Roger Hicks, Supervisor, testified at the hearing. He stated that he is trained to detect the use of drugs and alcohol, as well as impairment from these substances. He indicated that the trip to the doctor’s office lasted about thirty minutes, and he conversed with claimant during the drive. Hicks observed no evidence of impairment.
Hicks also commented on claimant’s employment duties, characterizing his job as difficult, with “a lot of decisions to make.” He opined that mental acuity is needed to perform claimant’s job. With respect to claimant’s decision to use a cant hook, Hicks indicated that this is a customary practice. More important, he stated that it was not an error in judgment to use a cant hook.
James Manning also testified. He is employed as a “maxi-mill operator” for respondents. He agreed that claimant’s job was difficult, and required instantaneous decision making. Manning indicated that claimant performed his duties in the usual fashion on the day of the injury. He also agreed that using a cant hook to reposition a log is common, noting that sometimes logs are easy to reposition and the tool is unnecessary.
Respondents have suggested that claimant smoked marijuana during his lunch break, which lasted less than thirty minutes. However, the record contains no support at all for this theory. Claimant explained that his sole experience with marijuana occurred at a club three weeks prior to the accident. Further, claimant had lunch at his brother’s home on the date of the accident. He picked up some lunch and drove to the home of Scott Billings. Scott Billings stated that claimant did not smoke marijuana at his home during lunch. The most compelling evidence, however, is that he worked for two hours after lunch and before the accident.
Respondents denied claimant’s claim based on the results of a drug screen conducted on September 2, 1999. That test was positive, revealing the presence of marijuana metabolites. Case law dictates that these test results triggered the statutory presumption. See, ERC Contractor Yard Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). In order to rebut the presumption, claimant must offer evidence that his injury was not substantially occasioned by the use of drugs. Id. The determination of whether a rebuttable presumption is overcome is a question of fact for our resolution. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998).
In my opinion, claimant has presented sufficient evidence to rebut the presumption that his injury was substantially occasioned by the use of marijuana. The evidence showed that claimant was not impaired on September 2, 1999. His injury occurred some eight hours after he reported to work. Although claimant left the mill for a short lunch break, he performed his duties for approximately two hours without incident before the accident occurred. It is undisputed that the operation of a quad saw is demanding and complex, a job requiring manual dexterity and mental alertness. Claimant’s ability to operate the quad saw without mistakes supports the conclusion that his motor skills were not impaired at the time of the accident. Mr. Hicks offered further evidence that claimant was not impaired. He accompanied claimant to the doctor’s office, and he detected no impairment. Mr. Hicks had ample opportunity to observe claimant’s demeanor during the drive. He stated that using a cant hook to extricate a log is routine, and not a judgment error.
Thus, in addition to claimant’s testimony that he was not impaired, which was not contradicted at all by the other witnesses, who were able to closely observe claimant, there is convincing evidence that his injury was not caused by an error in judgment or unsafe or prohibited conduct on claimant’s part. His injury was the direct result of lifting or pulling the cant hook, a common procedure used numerous times on prior occasions. There was nothing in claimant’s behavior or conduct that even suggests that his injury was substantially occasioned by the use of marijuana.
In order to deny compensation under this statute, there must be a “direct causal link” between the use of marijuana and the injury. ERCContr. Yard Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). The only evidence of such a direct causal link in the present case is the positive drug test. The positive drug test, standing alone, is insufficient to support a denial of benefits pursuant to the provisions of Ark. Code Ann. § 11-9-102(4)(B)(iv) (Supp. 2001).
For the foregoing reasons, I must respectfully dissent.
______________________________ SHELBY W. TURNER, Commissioner