CLAIM NO. F012579
Before the Arkansas Workers’ Compensation Commission
OPINION FILED FEBRUARY 20, 2002
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JUDSON KIDD, Attorney at Law, Little Rock, Arkansas.
Respondent represented by HONORABLE GAIL O. MATTHEWS, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed.
OPINION AND ORDER
The respondent appeals a decision of the Administrative Law Judge filed on July 25, 2001, finding that the claimant proved by a preponderance of the evidence that he sustained a compensable work-related injury on October 24, 2000, and that the claimant introduced sufficient evidence to rebut the presumption created under Ark. Code Ann. § 11-9-102(5)(B)(iv) that the presence of marijuana in the claimant’s body did not substantially occasion the fall the claimant sustained on October 24, 2000. Based upon our de novo review of the record, we find that the claimant has failed to meet his burden of proof. Accordingly, we reverse the decision of the Administrative Law Judge.
The claimant was employed by the respondent employer as a sandblaster. His duties included sandblasting and painting water tanks. The claimant worked for the respondent employer for approximately seven months. On October 24, 2000, the claimant began work at 7:00 a.m. that day and was painting the inside of a water tank in Mountain View, Arkansas. While working on the outside of the water tank, the claimant testified that the employees would use lift baskets. However, when the employees worked inside the tank, an apparatus called a “flying jenny” was used. The person sits on the flying jenny, dangling his feet and using a lever to go up and down.
On the day of the accident, the claimant worked on the outside of the tank in the morning and the inside in the afternoon. The claimant testified that he had had a lunch break and several water breaks. At approximately 5:50, he took another break to smoke a cigarette and get a drink of water. The claimant was working on the flying jenny. The claimant worked his way over to a vertical ladder which was attached to the tower, took off his safety belt, put the safety belt on the jenny ladder, and came down. After the claimant completed his break, he came back up the ladder and put his leg over the end piece of the ladder and sat down on the flying jenny. He did not have on his safety belt. The flying jenny fell to the ground. The pulley on the flying jenny broke because the pin that goes into the center hole that holds the wheel on the pulley had fallen out. The claimant was seriously injured in the fall. The claimant lost a kidney, broke his pelvis, broke his back in three places, broke his neck, and separated his rib cage. In addition, the claimant now has high blood pressure.
The claimant testified that he always wore his safety belt, but that he did not have it on when the accident happened. The claimant stated that he was going to put it on as soon as he sat down on the flying jenny. The claimant testified that was how he was taught to do it by his ex-foreman and he always did it that way. However, Mr. Freddie Haney, the owner of the respondent employer, testified that this was the way that you shouldnot get on the flying jenny. Mr. Haney testified that the proper way was to have the safety belt on before you sat down on the jenny:
Q. Okay. And there would be times when you would not wear a safety belt; correct?
A. No. I always have a belt on when I’m on that jenny. . . . Now, if I’m in a basket on the outside, which that’s no issue, half the time I wouldn’t wear one. But on that jenny, I wear one every time.
Q. Is it any trouble getting on and off that jenny and keeping your safety belt on?
A. No.
Q. Are you supposed to keep your safety belt on while you get on and off that jenny?
A. Well, it’s common practice for me that I don’t never take my safety belt off `til I’m on the wall ladder. Then I’ll take my safety belt off, lay it down on the jenny. Or I’ll take my safety belt and tie the jenny to the wall ladder where it doesn’t swing back around the tank.
Q. Mr. Haney, I want to make it clear. The proper way to get on the end of this ladder would be to put your safety belt on and then sit down on it?
A. Well, that’s the way I did it. Now, I, you know, I’ve told everybody to do it that way, but you can’t stand right there on top of the job and watch them every time they get on and off.
Q. Let me ask you if you were going to get on that ladder, would you put your safety belt on first?
A. Well, I’d already have my safety belt on to where all I’d have to do is take my lanyard and snap it in.
Mr. Haney testified that the two foreman showed the claimant the basics of using a flying jenny and that he himself had showed the claimant how to operate it. The claimant admitted that Mr. Haney had showed him at various times how he was supposed to use the flying jenny.
After the accident, the claimant was initially treated at the emergency room at the Mountain View Hospital. At that time, a urine sample was taken. The claimant’s urine testified positive for marijuana and for morphine. Because the claimant testified positive for drugs, the claimant must overcome the rebuttable presumption set forth in Ark. Code Ann. § 11-9-102(5)(B)(iv) (Repl. 1996) which provides:
“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 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.
The claimant did not deny smoking marijuana. As a matter of fact, the claimant testified that he had smoked marijuana the night before his fall at approximately 9:00 or 10:00 p.m. The claimant stated that he had smoked one or two joints but he could not remember exactly. He further testified that he smoked about twice a week and then would go two or three months without smoking at all. He also stated that he smoked marijuana “every now and again” and that he smoked it when he was depressed.
The medical report also indicated that there was morphine in the claimant’s urine. The claimant attempted to explain the presence of morphine by testifying that he had gone to the hospital in Heber Springs on Sunday for a bad cough and was given cough medicine with Codeine. He also stated that he was given pain medication for his injuries at the Mountain View hospital.
The evidence includes a letter from Dr. Henry Simmons, a toxicologist who examined the results of the drug screen test administered to the claimant. His letter states in pertinent part:
The document indicates that the laboratory screened the specimen for eight different drugs or sets of related compounds and that opiates and “THC” were detected. A follow up confirmation assay demonstrated the presence of the opiate, morphine, at 2349 ng/ml and the specific THC metabolite, tetrahydrocannabinol carboxylic, acid at 212 ng/ml. Morphine is a commonly used analgesic found in some foods and encountered as a metabolite of some illegal and prescription drugs. THC is the principal psychoactive ingredient in marijuana and the prescription drug, Marinol.
The test result is consistent with the donor’s history as stated in your attached letter of 01/23/01. Specifically, an individual more likely than not would have a positive urine test who regularly smokes one to two marijuana cigarettes per week and who last smoked this amount 19 to 20 hours prior to a collection. If this information is accurate, then the bulk of the acute effects would have dissipated by the time of the fall although there is evidence of diminished performance on fine performance tests as long as 24 hours after smoking that cannot be completely discounted. However, the result is also consistent with smoking shortly prior to the accident when acute toxicity could have played a major role in the accident. THC impairs perceptual and motor skills that would be critical to safely performing a hazardous job. Unfortunately, this issue cannot be resolved on the basis of the test alone and the drug cannot be excluded as a factor in the fall.
The morphine in the urine perhaps originated from injections that the patient received for pain in the hospital or even from codeine, which is metabolized to morphine. However, I would also expect to have found some codeine as well if he had received that drug not long after the accident. Morphine also appears in the urine of those who eat poppy seats although seldom at levels this high. Finally, morphine can also arise from abuse of heroin that is metabolized to morphine and filtered into the urine.
There is absolutely no question that the claimant had a positive drug screen and that this positive drug screen created the rebuttable presumption that the claimant’s accident was substantially occasioned by illegal drugs. The drug screen indicated that the claimant had both marijuana and morphine in his system. There is no chain of custody problems, because the drug screen results were stipulated to in the record. Therefore, the claimant must overcome the presumption that his accident was substantially occasioned by the drugs. In our opinion, the claimant has failed to rebut this presumption. The record is replete with evidence of the claimant being under the influence of drugs at the time of the accident. Therefore, in our opinion, the claimant’s accident was substantially occasioned by his drug use.
First, the claimant tried to explain away the morphine by saying he had a pain shot at the hospital. However, an examination of the drug screen records indicate that the drug screen was performed before the claimant was even admitted to the hospital. The drug screen was performed at 19:15 and the claimant was admitted at 19:43.
Second, the claimant offered absolutely no medical records to corroborate his testimony that the Heber Springs hospital gave him cough medicine with codeine on Sunday. It appears that if the claimant had been treated in the emergency room as he alleges, there would be medical records to indicate that the claimant was given cough medicine with codeine.
Third, the claimant admitted to smoking marijuana the night before his accident, and his testimony is in effect that he is a regular user. Dr. Simmons stated in his letter that marijuana can effect one’s job performance as long as 24 hours after smoking. If the claimant had smoked marijuana shortly before the accident, then acute toxicity could have played a major role in the accident. Dr. Simmons concluded that the drug could not be excluded as a factor in the fall. Dr. Simmons’ report also indicates that the effect that the morphine had on the claimant’s system was not likely to be from the drugs the claimant received at the hospital.
Fourth, the claimant did offer testimony that the accident occurred when a pin came out of flying jenny’s pulley. However, we cannot overlook the fact that if the claimant had had his safety belt on, he would have not been hurt. The claimant’s failure to wear the safety belt was consistent with impairment from being under the influence of marijuana and/or morphine. The record contains the testimony of Mr. Haney, who testified that he always put his safety belt on before he got onto the flying jenny. The claimant had been instructed to do so, also.
In a recent case by the Arkansas Supreme Court, Woodall v. Honeycutt, 340 Ark. 377, 12 S.W.3d 630 (2000), the Supreme Court was faced with a similar case such as we have before us. In the Woodall case, the claimant was assisting in constructing a roof and fell when a scaffolding collapsed. The claimant was tested for illegal drugs and the drug screen showed cocaine. The Supreme Court affirmed the Full Commission, who found that the claimant failed to rebut the presumption that his accident was substantially occasioned by illegal drug use. In that case, the Supreme Court stated:
There is no question in this case that substantial evidence existed for the Commission to deny relief. Unlike many of the drug-intoxication workers’ compensation cases, there is no question in this case whether the claimant did or did not have the presence of an illegal drug in his blood. He both readily admitted smoking crack cocaine the night before the incident and admitted that he tested positive for a drug screen on the date of the accident. This automatically raises the presumption that drugs were the cause of the accident and placed the burden on the injured employee to prove that they were not.
* * *
The bottom line is that the appellant was on a rickety scaffolding and had drugs present in his bloodstream. He fell and was injured. The only question we need address is whether the accident could have happened because of the use of illegal drugs. The answer is, of course, that it could have happened just the way the Commission found. Because of the presumption created by former Ark. Code Ann. § 11-9-102(5)(B)(iv)(b), regarding drug use of the injured worker, which the Commission determined appellant failed to rebut, coupled with this Courts’ standard of review in workers’ compensation cases wherein we do not hear the case de novo, but rather affirm the Commission’s decision if reasonable men could have reached the same conclusion as the Commission, we must affirm the Commission’s denial of benefits to appellant, thereby reversing the Court of Appeals decision in Woodall v. Hunnicutt Constr., 67 Ark. App. 196, 994 S.W.2d 490
(1999).
340 Ark. at 381-382.
After our de novo review of the evidence, we find that the claimant has failed to rebut the presumption that his accident was substantially occasioned by illegal drugs. The Court’s findings in Woodall clearly support our finding that the claimant failed to rebut the presumption. Although the claimant sustained horrible injuries as a result of his fall, the claimant’s failure to use the safety belt was the direct cause of his injuries. Accordingly, the decision of the Administrative Law Judge is hereby reversed.
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 this claim is barred by the provisions of Ark. Code Ann. §11-9-102(4)(B)(iv) (Supp. 2001).
Claimant’s job entailed sandblasting and painting. During work inside of a water tank, he stated that he used a “flying jenny.” Claimant described this as a scaffold apparatus. A photograph of the device was introduced. Claimant testified that he was part of a sandblasting crew assigned to work on a water tank in Mountain View, Arkansas. He stated that the job had started about two weeks prior to the accident.
Claimant testified that on October 24, 2000, his shift began at 7:00 a.m. He stated that he worked outside of the tank until after lunch. Claimant stated that he went inside to paint. He testified that he sat on the jenny’s ladder to paint. Claimant stated that the jenny has a lever on top of the motor, which provides air. A device in front of the motor controls the direction of the jenny.
Claimant stated that he continued working inside until taking a brief break at 5:50 p.m. In order to take a break, he had to dismount the ladder on the jenny, get on the ladder attached inside of the water tower, and go down. When claimant returned to work at 6:00 p.m., he climbed the tower ladder, maneuvered so that he could climb onto the end the jenny ladder and sat down. Immediately, he plummeted to the ground. Claimant did not have an opportunity to put on a safety belt.
Claimant testified that he wears a safety belt throughout the day. He stated that Mr. Harris taught him to put the belt on after sitting on the end of the jenny because both hands are free to perform the task. Claimant testified that the belt is placed around his waist. He stated that on October 24, 2000, he followed the same procedure as always in the operation of the jenny.
Claimant testified that Mr. Freddie Haney had rigged the flying jenny about two weeks prior to the accident. It had not been dismantled since that time. Claimant testified that prior to the accident, he had used the jenny on approximately fifteen days. He stated that Mr. Jim Harris, Foreman, furnished basic training with respect to using the jenny. Also, he received some instruction from Mr. Danny Polk.
Claimant testified that after the accident, he was informed that the pulley on the jenny was defective. He introduced a photograph of the pulley, which showed that there was no pin in the center to hold the wheel.
As a result of the fall, claimant sustained multiple injuries, including a broken neck, broken back, and a broken pelvis. Also, he lost a kidney, separated his rib cage, and developed very high blood pressure.
Claimant acknowledged that he smoked 1-2 marijuana cigarettes on October 23, 2000, at approximately 9:00 or 10:00 p.m. The accident occurred twenty hours later. Claimant testified that the effects of the drug had dissipated.
With respect to the morphine detected by the blood test, claimant stated that he was given pain medication in the emergency room. Also, he took codeine cough syrup a few days prior to the accident. Claimant testified that the cough medicine was prescribed by an emergency room physician.
On cross-examination, claimant agreed that the safety belt was on the jenny ladder. He stated that when he took a break prior to the accident, he took the safety belt off as he was sitting on the jenny ladder.
Respondents offered the testimony of Mr. Freddie Haney, Owner. He stated that two foremen taught claimant how to use the jenny. Mr. Haney testified that he offered some instruction as well. He stated that he does not remove the safety belt until reaching the wall ladder. Then, he takes it off and places the belt on the jenny. In the alternative, Mr. Haney uses the belt to tie the jenny to the wall ladder.
On cross-examination, Mr. Haney testified that the pulley pin was never recovered following the accident. He stated he does not know what caused the pin to come out of the pulley. He indicated that the wheel was found at the bottom of the tank.
Mr. Haney testified that he always has his safety belt on before getting on the jenny. He stated that as he stands on the vertical ladder, he reachs across and grabs the jenny. Mr. Haney testified that the distance between the two points is about four feet. Although he always uses the same method to mount and dismount the jenny, Mr. Haney acknowledged that there were differences in the methods used by his employees.
The Administrative Law Judge inquired, and Mr. Haney testified that after the accident, Danny Polk was terminated for following the procedure with respect to the jenny which led to claimant’s injuries. He stated that Mr. Polk instructed claimant in the operation of the jenny.
Respondents introduced a report dated February 1, 2001, authored by Dr. Henry F. Simmons. Dr. Simmons was retained to review the drug screen performed on the date of the accident. He stated that the test results were consistent with the history furnished by claimant. However, Dr. Simmons also indicated that the results were consistent with smoking marijuana shortly before the accident. In that case, “. . . acute toxicity could have played a major role in the accident.” He concluded that: “Unfortunately, this issue cannot be resolved on the basis of the test alone and the drug cannot be excluded as a factor in the fall.” With respect to the presence of morphine, Dr. Simmons stated that it could have resulted from pain medication in the hospital, or codeine. He deemed codeine a less likely possibility because of the absence of codeine in the drug screen.
Claimant contends that he introduced sufficient evidence to overcome the statutory presumption that his accident was substantially occasioned by the use of drugs. I agree. In ERC Contractor Yard Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998), the Supreme Court considered the requisite causal relationship between the intoxicant and the accident in order to deny benefits. The court stated:
We, therefore, conclude that the plain and ordinary meaning of the phrase “substantially occasioned by the use of alcohol” requires that there be a direct causal link between the use of alcohol and the injury in order for the injury to be noncompensable. To conclude otherwise would involve the addition of words that do not appear in the text of Ark. Code Ann. § 11-9-102(5)(B)(iv).
Id. at 71.
The evidence shows that the accident was caused by defective equipment. A “direct causal link” between claimant’s use of marijuana on October 23, 2000, and the accident on October 24, 2000, cannot be established. Moreover, the evidence also indicates that the procedure for operating the jenny varied among the staff. On the date of the accident, claimant did not deviate from his normal routine in operating the jenny.
To support a finding that claimant failed to rebut the statutory presumption, respondents offered the opinion of Dr. Simmons. His opinion is inconclusive. Therefore, I afford it no weight.
For the foregoing reasons, I must respectfully dissent.
_______________________________ SHELBY W. TURNER, Commissioner