CLAIM NO. E411130
Before the Arkansas Workers’ Compensation Commission
OPINION FILED JANUARY 10, 1997
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBERT R. CORTINEZ, Attorney at Law, Little Rock, Arkansas.
Respondent represented by A. GENE WILLIAMS, 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 April 22, 1996 finding that the claimant sustained an injury arising out of and in the course of his employment. The Administrative Law Judge specifically found that the claimant had rebutted the presumption of intoxication. After conducting a de novo
review of the entire record, we find that the Administrative Law Judge’s decision must be reversed.
(a)(2) (1987). However, under the law in effect prior to the effective date of Act 796, there was a prima facia
presumption that the injury did not result from the intoxication of the employee while on duty. Ark. Code Ann. § 11-9-707 (4) (1987). Thus, under the prior law, employers had the burden of showing that the employee was intoxicated and that the injury was substantially occasioned by this intoxication. [7] Act 796 of 1993 made substantial changes in the law regarding this issue. As amended by Act 796, an injury that was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders is not compensable, just as under the prior law. However, under the amended law, every employee is deemed by his performance of services to have impliedly consented to testing for any of these substances in his body, and the presence of any of these substances creates a rebuttal presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s order. Ark. Code Ann. § 11-9-102 (5)(B)(iv) (Repl. 1996). In addition, the amended law provides that:
[8] A statutory presumption is a rule of law under which the finding of a basic fact compels the finding of a presumed fact, unless sufficient evidence to the contrary is presented to rebut the presumption. See, Black’s LawDictionary, (5th Ed.). If evidence which is contrary to the presumed fact is presented, the determination of the existence or nonexistence of the presumed fact is a question for the trier of fact. Ross v. Vaught, 246 Ark. 1002, 440 S.W.2d 540 (1969); Curtis Circulation Co. v. Henderson,232 Ark. 1029 (1961); Ford Son Sanitary Co. v. Ransom,213 Ark. 390, 210 S.W.2d 508 (1948) and Ball v. Hail, 196 Ark. 491, 118 S.W.2d 668 (1938). Just as the determination of the weight to be given to the evidence is a matter within the province of the trier of fact, the determination of the weight to be given to the presumption is the matter within the province of the trier of fact. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973). In this regard, the presumption should be given the weight necessary to “best serve the interest of justice.” Id. [9] In the present claim, we are concerned with the cause of the events that occurred on July 12, 1994 and the only evidence presented which pertains to those events is found in the testimony of the claimant himself. With regard to the effect of the testimony of an interested party on a presumption, the Arkansas Supreme Court made the following statements in Dunn, supra, (Barnhart, Use of Presumptions InArkansas, 4 Ark. L. Rev. 128, 141 (1950):. . . [a]n 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.
[10] Therefore, the question of whether the testimony of an interested party is sufficient to rebut the presumption remains a question for the trier of fact. A claimant’s testimony is never considered uncontroverted.Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). It is the exclusive function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. RicelandFoods, 47 Ark. App. 71, 884 S.W.2d 626 (1994). Furthermore, the Commission is not required to believe the testimony of the claimant or other witnesses, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Morelock v. KearneyCo., 48 Ark. App. 227, 894 S.W.2d 603 (1995). [11] In the present claim, the evidence shows that marijuana was present in the claimant at the time of the injury. Therefore, we begin with the assumption that the claimant’s injury was substantially occasion by the drug. The question in this case then becomes whether the claimant’s denial of having used marijuana on the date of the accident is sufficient to constitute a preponderance of the credible evidence and rebut the presumption that the accident was substantially occasioned by the use of marijuana. The Commission has previously held such testimony is insufficient to rebut the presumption. JamesSanders v. CFSI Temporary Services, FC Opinion filed Oct. 13, 1995 (E408568). [12] In this case, there is no corroborative testimony or other evidence about how the accident occurred. The claimant only testified that he hydroplaned and ran off the road but he admitted that he does not know how the accident occurred. The claimant testified he was going about 40 miles an hour on a flat delta road and there was no other traffic nearby. In addition, the police report from the accident stated that the claimant was driving too fast for conditions. [13] The claimant denies having used marijuana on the date of the accident. However, he admits having used it at a prior time. In assessing the weight to be given to the claimant’s testimony, we note that the presumption that the accident was substantially occasioned by the use of marijuana reflects a strong public policy against the use of drugs in the workplace and the strong public policy against the payment of workers’ compensation where the cause of the injury is something other than the employment. The only evidence in support of the claimant for his denial is his self-serving assertion of his honesty premised on his admission that he smoked marijuana three weeks before the accident. An admission of prior drug use, a positive drug test on the day of the accident, and two expert toxicologist’s testimony that the tests results could not pinpoint the time of use do not add up to prove by a preponderance of the evidence that the accident was not substantially by drug use. The Commission previously held in the case of James Sanders v. CFSI Temporary Services,Except as the court may be restrained by constitutional requirements of due process of law . . ., there would seem to be no reason in law or logic why there should not be accorded to any or all presumptions the weight which the court feels would best serve the interest of justice. If dissipation by a bare denial from an interested witness seems to accord too trifling in affect to a presumption, the court would seem justified to require more before the presumption is rebutted.
supra, that something more than a self-serving denial by an interested party should be required to rebut the presumption. Therefore, after giving the claimant’s testimony the weight that it is entitled to receive, we find that he failed to rebut by a preponderance of the evidence the presumption that his injury was substantially occasioned by the use of illegal drugs. Accordingly, for the reasons discussed herein, we find that the claimant did not sustain a compensable injury. Therefore, the Administrative Law Judge’s decision is reversed and this claim is denied and dismissed. [14] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner
[15] Commissioner Humphrey dissents.[16] DISSENTING OPINION
[17] The performance of one’s employment duties while under the influence of alcohol or illegal drugs is an egregious act worthy of stern reproach. The intent behind the General Assembly’s efforts to curb such conduct is thus certainly commendable. Unfortunately, within the workers’ compensation context, those efforts (codified at Ark. Code Ann. § 11-9-102 (5)(iv)(a)-(b) (Repl. 1996)) have produced a situation where injured workers can often be denied benefits with essentially no real evidence of impairment on the job. The instant case provides a striking example.
[19] Dr. Simmons also explained that there were other tests (besides urine tests) which could more accurately address this issue:In addition, Dr. Simmons testified that it was impossible to determine from drug tests when the claimant had last used marijuana.
[20] It is often little consolation that the presumption raised can be rebutted. In the present case, claimant has presented credible testimony which the majority has declined to accept as sufficient. The end result is that claimant has been denied compensation in a case where direct evidence of impairment at the time of injury is essentially nil — a result that seems to me unduly harsh. [21] Also, I am not persuaded that the testing conducted in this case actually demonstrates the “presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders.” (See Ark. Code Ann. § 11-9-102 (5)(D)(iv)(b) (Repl. 1996)). Dr. Simmons explained claimant’s test results as follows:Q. All right, sir. And is there a test that can be performed by a laboratory that would determine impairment as far as the use of marijuana is concerned?
A. There are tests that can be conducted on blood, the results of which would be more likely to be connected to acute use and impairment than the tests that are conducted on urine. That’s correct.
Q. So, are you saying that if a blood test was conducted on an individual that has used marijuana, that this blood test could more or less determine the point in time in which the person used the marijuana?
A. Well, it would dramatically narrow the framework. For example, an individual who had a significant quantity of the primary psychoactive ingredient of marijuana that was actually measurable in his blood, namely THC, is an individual who has used the drug within a very short time-frame, say minutes to a few hours; as opposed to the presence of metabolites or breakdown products of THC in the urine which could be present under some circumstances for literally weeks after the last use.
[22] Dr. Simmons went on to explain that the report of July 12th, 1994, could not “by itself” demonstrate that claimant was impaired on that date. [23] As noted above, Act 796 requires the “presence” of an intoxicant before the relevant presumption can be raised. The majority opinion states that “in the present claim, the evidence shows that marijuana was present in the claimant at the time of the injury.” My understanding of Dr. Simmons’s deposition testimony suggests that, on the day of claimant’s accident, his system contained not marijuana (or even THC) itself but rather marijuana metabolites. Dorland’s Illustrated MedicalDictionary, 28th Ed., defines “metabolite” as “any substance produced by metabolism or by a metabolic process.” In light of our duty to strictly construe Act 796 (see Ark. Code Ann. § 11-9-704 (c)(3) (Repl. 1996), I do not think that metabolized and excreted byproducts equate with the “presence” of an intoxicant in claimant’s system. Indeed, Dr. Simmons made the following comments later in his deposition:Q. All right, Doctor. I’m going to refer to this exhibit as this Deposition’s Exhibit “A”; and, of course, this report is not into evidence. Randy, of course, will be required to meet the evidentiary foundations to establish this into evidence, but just assuming that this report does pertain to Everett Brown, what does it show?
A. With regard to this report from July the 12th of 1994, it indicates that a screening test, most probably an immunoassay screen was positive for the presence of multiple marijuana metabolites at or above a concentration of 20 nanograms per milliliter. There is a gas chromatography/mass spectroscopy confirmation test that was also performed on this specimen that indicates that a specific metabolite, most probably 9-carboxyl THC acid, was present at a concentration of 44 nanograms per milliliter.
Q. Doctor, assuming that this report if true, what does it mean?
A. It means that at some point in time that this individual was exposed to THC, that he absorbed it, that his body metabolized it, and that at the time of the test he was excreting the material at or above the cutoff specified on this assay. In other words, there was at least 20 nanograms per mill or more of multiple kinds of marijuana metabolites on the screen, and we know that there was in excess of a 8 nanograms per milliliter present of the specific marijuana metabolite that’s used for confirmation. In fact, there was 44 nanograms per milliliter of that.
Q. Now, Doctor, the question that was asked was whether or not this test result is consistent with Everett Brown being impaired on that particular date. Let me go into that question about whether or not this test is consistent. Now, from my understanding of your testimony, and as I recall, and I’m not trying to put words in your mouth; but, as I recall, this test, this test only shows the presence of marijuana metabolites. Is that correct?
A. That’s correct. You —
Q. So, it — Go ahead, Doctor.
[24] Not only does the type of urine test performed on claimant fail to address the issue of impairment at the time of injury, I am skeptical as to whether it even reveals the actual “presence” of an intoxicant. [25] Based on the foregoing, I must respectfully dissent from the majority opinion. [26] PAT WEST HUMPHREY, CommissionerA. You simply asked me a question a while ago, as I understood you, if the test could possibly be made positive by THC, which is, of course, the parent compound from which the metabolites arise; and probably being overly technical in the answer, I suggested to you that that could contribute to the positive on the screen. However, there is no proof here that there was any THC whatsoever in that urine. (Emphasis added).
Q. All right, sir. And THC is the chemical that affects the mind?
A. Correct. It is the primary psychoactive metabolite that’s present in marijuana, hashish, and hash oil, and things of that nature. There is nothing about the test that can be conclusively linked by itself to impairment at any particular time.