OLIVER v. WEYERHAEUSER, 1996 AWCC 94

CLAIM NO. E411392

BRIAN OLIVER, EMPLOYEE, CLAIMANT v. WEYERHAEUSER, SELF-INSURED EMPLOYER, RESPONDENT

Before the Arkansas Workers’ Compensation Commission
OPINION FILED MAY 17, 1996

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

Claimant represented by the HONORABLE CHARLES PADGHAM, Attorney at Law, Hot Springs, Arkansas.

Respondent represented by the HONORABLE WENDELL L. GRIFFEN, Attorney at Law, Little Rock, Arkansas.

Decision of Administrative Law Judge: Reversed.

[1] OPINION AND ORDER
[2] The respondent appeals an opinion and order filed by the administrative law judge March 13, 1995. In that opinion and order, the administrative law judge found that the claimant sustained a compensable injury. After conducting a de novo review of the entire record, we find that the claimant failed to prove by a preponderance of the evidence that his injury was not substantially occasioned by his intoxication. Therefore, we find that the administrative law judge’s decision must be reversed.

[3] The claimant was operating a “skoog machine” on July 20, 1994, when his left index and middle fingers were amputated. A skoog machine punches out knot holes in sheets of veneer and replaces the holes with patches of clean wood. According to his testimony, the machine periodically became jammed with patches of wood, requiring him to remove patches of wood from the machine. At approximately 10:00 p.m. on July 20, 1994, near the end of the claimant’s shift, the machine jammed, and the claimant lifted the door to the chamber and attempted to use his fingers to remove patches of wood from the inside the machine. One of the patches was broken, so the claimant reached across his body with his other hand to get a tool he needed to remove the patch. As he did so, the door to the chamber closed, and the claimant’s fingers were partially amputated. The machine is activated by foot switches, which the claimant contends he was not near at the time. Moreover, the claimant asserts that the machine was turned off at the time of this incident, and he asserts that the machine could not possibly be activated when it is turned off.

[4] On the day following this incident, the claimant submitted to a drug screen test, and this test was positive for marijuana metabolites. In this regard, the claimant candidly admitted that he and two other individuals shared one marijuana cigarette after he got off work at 10:00 p.m. on July 19, 1994. Afterward, he went home and went to sleep after watching television. He got up at approximately 9:00 a.m. the following morning, and he watched television and listened to music prior to reporting for work at 1:45 p.m. The claimant testified that he experienced a “buzz” from smoking the marijuana cigarette. However, his testimony indicates that he wasn’t experiencing any effects the following morning or when he reported for work. He testified that he attended a safety meeting prior to beginning his shift, and he testified that he led the group of employees in exercises at the request of his supervisor. There were no witnesses to the accident. The claimant contends that he was not impaired at the time of the accident. He lives with his aunt, and his aunt testified that he appeared to be normal on the morning of July 20, 1994, before he went to work. However, we note that his aunt also testified the evidence indicates she saw him on the night of July 19, 1994, after he had admittedly smoked a portion of the marijuana cigarette, but she also testified that she had never seen the claimant when he appeared to be under the influence of any drugs or alcohol. Thus, we find that her testimony is entitled to little weight.

[5] Since the claimant’s injury occurred after July 1, 1993, this claim is governed by the Arkansas Workers’ Compensation Law as amended by 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 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 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.

[6] Act 796 of 1993 made substantial changes in the law regarding this issue. As amended by Act 796, an injury which 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 rebuttable 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 orders. Ark. Code Ann. § 11-9-102(5)(B)(iv) (Cumm. Supp. 1993). In addition, the amended law provides that “[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.”

[7] 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); 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 a 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 interests of justice.” Id.

[8] In the present claim, the only evidence presented to rebut the presumption that the injury was substantially occasioned by the use of drugs is found in the testimony of the claimant and his aunt. As discussed, his aunt did not perceive that he was under the influence of marijuana on the night before the accident, even though the claimant’s testimony establishes that she did in fact see him in that state. Therefore, as discussed, we find that her testimony is entitled to little weight and that it is not sufficient to rebut the presumption. Consequently, we are left with only the claimant’s testimony to overcome the presumption. 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 (quoting Barnhart, Useof Presumptions in Arkansas, 4 Ark. L. Rev. 128, 141 (1950):

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 interests of justice. If dissipation by a bare denial from an interested witness seems to accord too trifling an effect to a presumption, the court would seem justified to require more before the presumption is rebutted.

[9] Thus, the question of whether the testimony of an interested party is sufficient to rebut the presumption remains a question for the trier of fact. See also, Ross, supra.
However, in determining if the testimony of an interested party is entitled to sufficient weight to overcome the presumption, in itself, it must be remembered that the testimony of interested parties is not to be treated as undisputed in determining the weight it is to be accorded.Ball, supra; Phelps v. Partee, 208 Ark. 212 185 S.W.2d 705
(1945).

[10] In the present claim, the evidence shows that marijuana was present in the claimant at the time of the injury. Thus, we begin with the presumption that the claimant’s injury was substantially occasioned by the drug. In considering the weight of the evidence necessary to rebut this presumption, we note that this presumption reflects the strong public policy against the use of drugs in the work place and the strong public policy against the payment of workers’ compensation benefits where the cause of the injury is something other than the employment. With this in mind, the claimant sought to show that he was not impaired at the time of the injury by testifying that he had not smoked any marijuana since the previous night and by presenting testimony indicating that he was not impaired in any manner during the time he was working for the respondent on July 20, 1994. However, no evidence was presented to show the impairing effects of the marijuana or to show that the test results presented by the respondent were not sufficient to show a sufficient level of marijuana metabolites in the claimant to result in his impairment at the time of the injury. Likewise, no testimony other than that of the claimant was presented to show that he was not behaving in an impaired manner on the night of the injury. More significantly, no evidence, other than the claimant’s testimony, was presented regarding the circumstances surrounding the injury, and the claimant’s testimony gives no indication of what could have caused the injury. Indeed, accepting the claimant’s testimony would require us to find that a machine which was completely turned-off and shut-down, and incapable of activation from the position of the claimant at the time of the injury, suddenly, became operational and performed maneuvers requiring human action for activation.

[11] Considering the significant public policy considerations under the presumption involved in this claim, we find that the claimant’s testimony is not sufficient to rebut the presumption that the injury was substantially occasioned by the use of drug, under the circumstances presented by this claim. Thus, we find that the claimant failed to show by a preponderance of the evidence that this claim is compensable.

[12] Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant did not sustain a compensable injury. Therefore, we find that the administrative law judge’s decision must be reversed. This claim is hereby denied and dismissed.

[13] IT IS SO ORDERED.

JAMES W. DANIEL, Chairman ALICE L. HOLCOMB, Commissioner

[14] Commissioner Humphrey Dissents.

[15] DISSENTING OPINION
[16] I must respectfully dissent from the majority’s finding that claimant failed to prove by a preponderance of the evidence that his injury was not substantially occasioned by intoxication.

[17] I would have assigned more weight to the corroborating testimony of claimant’s aunt, and find it unfortunate that the majority has dismissed her testimony on the grounds that she could not testify as to having previously seen claimant in a state of intoxication. This fact alone does not render claimant’s aunt incompetent to testify as to intoxication in general.

[18] So long as claimant’s aunt’s own capacity to observe was not impaired (which would of course have a bearing on the weight to be given her testimony; see David v. State,286 Ark. 205, 691 S.W.2d 133 (1985)), I see no reason to essentially consider her testimony in this case a nullity. I would find that claimant’s aunt’s testimony, taken in conjunction with claimant’s testimony, is sufficient to rebut the presumption in favor of intoxication as provided by Ark. Code Ann. § 11-9-102(5)(B)(iv).

[19] Prior to Act 796 of 1993, the burden of proving that drugs or alcohol “substantially occasioned” an on-the-job injury was on the employer, where it rightfully belonged in that intoxication was and supposedly remains an affirmative defense. Before this burden could be met, an employer had to overcome a presumption that drugs or alcohol did not “substantially occasion” the injury. If Act 796 had done no more than remove this presumption, it could be said that the General Assembly had simply levelled the playing field in terms of a respondents’ chances of successfully raising this defense.

[20] Instead, Act 796 has reversed the playing field entirely, by not only removing the presumption formerly in favor of injured claimants, but also re-imposing a new presumption in favor of intoxication if any illegal drugs, alcohol, or unauthorized prescription drugs are present in a claimant’s system. The potential for absurd results created by this change is overwhelming.

[21] In practical effect, claimants faced with the intoxication defense will be put in the position of proving a negative, to wit, that they were not intoxicated at the time a work-related injury took place — even where remote, trace amounts of any of the aforementioned substances are detected. When corroborating testimony of non-impairment is not accepted, as in the instant case, or where claimants essentially work alone, respondents will be able to successfully raise an affirmative defense even where there is absolutely no positive evidence of impairment — which is exactly what has happened in the case before us. One can only speculate as to the myriad other situations in which a claimant who is not impaired at the time of an injury will nevertheless be denied compensation due to even an aged and minuscule presence of some foreign substance.

[22] There can be no denying that substance abuse, whether in the work place or some other setting, is an immense public policy concern. The General Assembly’s efforts to deal with this problem in Arkansas are recognized and appreciated. However, the result reached in this case through application of Ark. Code Ann. § 11-9-102(5)(B)(iv) is only the first of what will be many instances where claimants not actually impaired at the worksite will nonetheless be denied workers’ compensation benefits.

[23] For the reasons set forth hereinabove, I must respectfully dissent.

[24] PAT WEST HUMPHREY, Commissioner