ESTER v. NATIONAL HOME CENTERS, INC., 1997 AWCC 233

CLAIM NO. E504977

EUGENE ESTER, EMPLOYEE, CLAIMANT v. NATIONAL HOME CENTERS, INC., EMPLOYER, RESPONDENT and INSURISK, INSURANCE CARRIER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 23, 1997

Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.

Claimant represented by the HONORABLE SHEILA CAMPBELL, Attorney at Law, Little Rock, Arkansas.

Respondents represented by the HONORABLE ROBERT L. HENRY, III, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Affirmed in part and reversed in part.

[1] OPINION AND ORDER
[2] The respondents appeal an opinion and order filed by the administrative law judge on May 2, 1996. In that opinion and order, the administrative law judge denied the respondents’ motion to deem requests for admission binding on the parties. In addition, the administrative law judge found that the claimant sustained a compensable injury.

[3] After conducting a de novo review of the entire record, we find that the administrative law judge properly denied the respondents’ motion to deem requests for admission binding on the parties. Therefore, we find that the administrative law judge’s decision in this regard must be affirmed. In addition, we find that the claimant failed to prove by a preponderance of the evidence that his injury was not substantially occasioned by the use of illegal drugs. Therefore, we find that the administrative law judge’s decision in this regard must be reversed.

[4] Ark. Code Ann. § 11-9-705 (A) provides that the Commission shall not be bound by the technical or formal rules of procedure except as provided by the Workers’ Compensation Act. The Commission must adhere to basic rules of fair play; however, the Commission is also required to conduct hearings in a manner so as to best ascertain the rights of the parties. St. Paul Insurance Co. v. Touzin,267 Ark. 539, 592 S.W.2d 447 (1980).

[5] In the present case, the respondents propounded to the claimant certain requests for admission (that the claimant had consumed cocaine within 48 hours of his automobile accident and that the accident was substantially occasioned by the claimant’s use of cocaine) on or about September 22, 1995. The claimant did not file a response to the requests within 30 days of service. See, Ark. R. Civ. Proc. 36. Moreover, there is some dispute in this case as to when the claimant’s attorney did in fact respond to the requests for admission. In this regard, the claimant’s attorney explained that she had hearings in several parts of the state and this was the reason for the untimely filing. The claimant’s attorney also indicated that she had mailed responses to the respondents before the respondents filed their motion to have the requests deemed admitted. In light of the dispute over the apparently untimely response by the claimant’s attorney, the administrative law judge scheduled a supplemental hearing to enable the respondents to submit additional evidence if the respondents deemed that course of action appropriate.

[6] While we note that the course of action undertaken by the claimant’s attorney placed her client at serious risk of having adverse admissions deemed admitted by the administrative law judge, we find that the administrative law judge acted within his discretion to protect the rights of both parties by scheduling a second hearing for the respondents’ benefit rather than deeming the requests for admission binding on the claimant. Since we also find that the respondents were not prejudiced by the course of action undertaken by the administrative law judge, we affirm the decision of the administrative law judge denying the respondents’ motion to deem certain admissions admitted.

[7] Because the claimant’s injury occurred after July 1, 1993, this claim is subject to the provisions of Act 796 of 1993. Even under the law that existed prior to the 1993 amendments, injuries which were substantially occasioned by the intoxication of the injured employee were not compensable. Ark. Code Ann. § 11-9-401 (a)(2) (1987). However, under the law in effect prior to the effective date of Act 796, there was a prima facie presumption that an injury did not result from the intoxication of the employee while on duty. Ark. Code Ann. § 11-9-707 (4) (1987). Consequently, under the prior law, the burden of proof was on the employer to show by a preponderance of the evidence that the employee’s injury was substantially occasioned by the employee’s intoxication. County Pride v. Holly, 3 Ark. App. 216, 624 S.W.2d 443 (1981).

[8] Under Act 796, an injury which is substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders is not compensable, as under prior law. Ark. Code Ann. § 11-9-102 (5)(B)(iv)(a) (Repl. 1996). However, Act 796 made a number of substantial changes in this area of the law. In that regard, every employee is now deemed by his or her performance of employment services to have impliedly consented to reasonable and responsible bodily testing for alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders. Ark. Code Ann. § 11-9-102
(5)(B)(iv)(c) (Repl. 1996). In addition, the presence of any of these substances in the body creates a rebuttable presumption that the injury or accident was substantially occasioned by the use of the aforementioned substances. Ark. Code Ann. § 11-9-102 (5)(B)(iv)(b) (Repl. 1996). The amended law also provides that an injured 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. Ark. Code Ann. § 11-9-102 (5)(B)(iv)(d) (Repl. 1996).

[9] In the present case, the claimant was employed by the respondent as a truck driver when, on March 28, 1995, the claimant was involved in a single vehicle accident on a freeway exit ramp. The claimant was taken to the Baptist Memorial Medical Center in North Little Rock for treatment. In addition, the claimant underwent a blood-drug screen which tested positive for opiates and cocaine metabolites.

[10] With regard to the positive blood test for opiates, the medical record indicates that the claimant was administered morphine sulfate during the course of medical treatment between the time of the accident and the time of the blood screen. With regard to the positive blood test for cocaine metabolites, the claimant did not assert that these positive test results were invalid. To the contrary, the claimant has acknowledged that he smoked rock cocaine prior to the accident. However, the claimant asserts that he consumed the drug several days prior to the accident, and he was therefore not impaired by his cocaine consumption at the time of the accident which caused his injury.

[11] After reviewing the medical evidence and the claimant’s testimony, we find that the preponderance of the credible evidence establishes the presence of illegal drugs (specifically cocaine) in the claimant’s body at the time of the claimant’s accident. Consequently, we begin with a rebuttable presumption that the claimant’s injury was substantially occasioned by the use of illegal drugs.

[12] With regard to the nature of the claimant’s accident, the record indicates that the accident occurred during daylight hours, and the testimony of Officer Marvin Nunn, an Arkansas State Trooper, indicates that the weather was not a factor in the accident. Mr. Nunn also testified that when he arrived at the accident scene he observed an 18 wheeler flatbed truck overturned on the side of the road, with two-by-four timbers spread all across the highway. Mr. Nunn testified that the truck left 150 feet of scuff marks on the left side of the road and that the truck overturned on the left. However, Mr. Nunn testified that the truck did not leave any measurable skid marks (brake marks) from which to ascertain the speed of the vehicle prior to overturning. Mr. Nunn testified that the speed limit on the ramp was 35 miles per hour.

[13] The claimant testified that he considered the cause of the accident to be a shift in the load of timber that he was hauling. In this regard, the claimant testified during direct examination as follows:

I had right at twenty-one bundles on there that was in there wrong, and when it was brought off of the boxcar, they was not banded and they never banded them right. And there was like six inches in between them. And I told them about it and I argued with them, and he told me I was right, but to go ahead and try it. And I told him, I said, “Well, I will try it, because I know if I don’t, I’m going to get a headache from this end if I don’t.” And so I went on and tried it, and sure enough, it shifted on me.”

[14] In assessing the weight to be accorded the claimant’s testimony in this regard, we note that the claimant acknowledged on cross-examination that actually he and another individual worked together to secure the load of lumber on the flatbed. In addition, we note that the claimant did not present any testimony to support his uncorroborated assertion that the lumber was loaded improperly prior to the accident or to corroborate his testimony that he reported the allegedly improper loading to other individuals.

[15] With regard to his drug consumption prior to the accident, the claimant testified that he and a female companion smoked rock cocaine at approximate 7:00 p.m. on the Friday night preceding the accident on Tuesday, and that he then drank alcohol on Friday night until approximately 12:30 a.m. In addition, the claimant testified that he did not consume any additional cocaine after Friday night, and that prior to that single use, he had not previously used cocaine since 1988.

[16] After weighing the claimant’s uncorroborated testimony regarding the nature and extent of his drug use and his uncorroborated regarding his interpretation of the cause of his accident, as well as Officer Nunn’s testimony regarding the accident scene, and all other evidence properly in the record, we find that the 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. In reaching that decision, we find that the claimant’s uncorroborated testimony regarding an alleged shift in improperly loaded timber is entitled to essentially no weight. Likewise, we find that the claimant’s assertion that the cocaine metabolites in his blood immediately after the accident are attributable to a single use approximately four days prior to the accident (and approximately 6 years after his last prior use) is also entitled to little weight. Moreover, we also note that neither the weather or mechanical failure appear to have played any part in the claimant’s single vehicle accident. Consequently, we find that the greater weight of the credible evidence establishes that the claimant’s accident was attributable to impaired judgment (either through excessive speed under the conditions or inattentiveness), and we find that the greater weight of the credible evidence in the record indicates that the claimant’s impairment was caused by the use of cocaine.

[17] In reaching our decision, we also note that the administrative law judge apparently gave significant weight to the lack of evidence indicating that the claimant exhibited staggered ambulation, slurred speech, inappropriate behavior, or was otherwise acting in a manner indicating that he was “under the influence” when Officer Nunn arrived. However, the claimant did not present any evidence that a cocaine-induced impairment would produce these types of outward manifestations, in addition to producing impaired judgment. Consequently, we place no weight on the lack of evidence regarding staggered ambulation, slurred speech, or other behavior indicative of being “under the influence,” and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the credible evidence that his automobile accident was not substantially occasioned by the use of cocaine.

[18] Finally, the claimant asserts on appeal that Ark. Code Ann. § 11-9-102 (5)(B)(iv) violate’s the claimant’s constitutional right to equal protection and due process. However, as we recently discussed in Andre Jefferson v.Munsey Products, Full Workers’ Compensation Commission, Apr. 11, 1997 (Claim No. E405575), we believe that the rebuttable presumption at issue in the present case is consistent with, and rationally related to, the legitimate purpose of placing the burden of production on the party with greater access to relevant evidence since the claimant is generally in a better position to know in advance whether drug testing will indicate the presence of illegal drugs in the body at the time of the claimant’s injury. In addition, we found inJefferson that a positive test result for marijuana and cocaine metabolites in urine samples creates a sufficiently reasonable inference of impairment so as to support a rebuttable presumption that the claimant’s injury was substantially occasioned by the use of illegal drugs. Id.
With regard to the nature and operation of the rebuttable presumption and the burden of proof under the statute, seeWeaver v. Whitaker Furniture Co., 55 Ark. App. 400, ___ S.W.2d ___ (1996).

[19] In the present case, the claimant’s positive cocaine test result was obtained from blood sample testing, as opposed to urine sample testing, at issue in Jefferson,supra. However, the claimant in the present case does not assert that the positive test result for cocaine metabolites in his blood at the hospital shortly after the accident was in error. To the contrary, the claimant’s testimony regarding recent cocaine essentially corroborates the positive blood test result for cocaine metabolites. As discussed, however, we find that the claimant has simply failed to present any evidence, in addition to his uncorroborated testimony, which would indicate that the claimant was not impaired by the use of cocaine prior to the injury, and we find that the evidence regarding the nature and circumstances of the accident are indicative of impaired judgment related to cocaine use as the cause of the accident. Consequently, for the reasons thoroughly discussed in Jefferson, supra, we find that the provisions of Ark. Code Ann § 11-9-102 (5)(B)(iv) (Repl. 1996) do not violate an injured worker’s rights to due process and equal protection under the law in general. After reviewing the evidence in the present case, we likewise find that these statutory provisions do not violate the claimant’s due process or his equal protection rights in the present case.

[20] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the administrative law judge properly denied the respondents’ motion to deem requests for admission binding on the parties. Therefore, we find that the decision of the administrative law judge in this regard must be, and hereby is, affirmed. In addition, we find that the claimant failed to prove by a preponderance of the evidence that his injury was not substantially occasioned by the use of illegal drugs. Therefore, we find that the decision of the administrative law judge in this regard must be, and hereby is, reversed.

[21] IT IS SO ORDERED.

ELDON F. COFFMAN, Chairman MIKE WILSON, Commissioner

[22] Commissioner Humphrey concurs in part and dissents in part.

[23] CONCURRING AND DISSENTING OPINION
[24] I concur with that portion of the majority opinion which affirms the Administrative Law Judge’s denial of respondents’ motion to deem certain requests for admissions binding on the parties. However, I must respectfully dissent from the majority’s finding that claimant has failed to rebut the presumption that his injury was “substantially occasioned” by intoxicants.

[25] The majority once again relies on the presence of “metabolites,” or breakdown products, to establish the “presence” of an illegal drug in claimant’s system at the time of the accident. As I have pointed out before, I do not believe that the presence of breakdown products, under our “strict construction” mandate, amounts to the actual “presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders” necessary to give rise to the presumption found in Ark. Code Ann. § 11-9-102
(5)(B)(iv)(b) (Repl. 1996).

[26] While the use of intoxicants on the job demands stiff consequences, the majority’s reliance on metabolites to raise the presumption noted above can lead to a denial of workers’ compensation benefits for activities far removed from the workplace both in time and distance. In my opinion, this not only threatens the bounds of strict construction, but also raises questions of basic fairness.

[27] For the foregoing reasons, I concur in part and respectfully dissent in part.

[28] PAT WEST HUMPHREY, Chairman