CLAIM NO. F002716
Before the Arkansas Workers’ Compensation Commission
OPINION FILED DECEMBER 10, 2002
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE FREDERICK SPENCER, Attorney at Law, Mountain Home, Arkansas.
Respondents represented by HONORABLE ERIC NEWKIRK, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
Respondents appeal an Administrative Law Judge’s decision filed November 1, 2001 finding that claimant’s injury was not substantially occasioned by the illegal use of drugs. Upon our de novo review of the record, the Full Commission affirms the Administrative Law Judge’s opinion.
Claimant contends that he sustained a compensable specific incident injury to his right arm on February 27, 2000, but respondents argue that claimant’s injury was caused by his illegal drug use and, therefore, recovery is barred pursuant to Ark. Code Ann. § 11-9-102(4)(B)(iv)(a).
Claimant stated that on February 27, 2000, he put on his safety glasses and gloves, but failed to put on his safety sleeve. Upon noticing a “glob” in the machine, claimant used a rod to try to unclog some of the cooled epoxyn that was stuck in the tubing. He stated that the machines had been turned off for two hours and that there was no flow of chemicals through the tube at the time of his injury. Claimant suffered second- to third-degree burns to his right forearm when it contacted with some of the hot resin silica mix he unclogged in the machine.
Claimant’s supervisor took him to the emergency room where claimant was given Compazine and Demerol for his pain. Two hours later, claimant tested positive for cannabinoids — a chemical associated with marijuana. However, claimant testified that the only drug he had taken that day were those given to him at the hospital for pain, and Depakote, a drug used to help control his epileptic seizures. Claimant worked the following night because respondent employer did not give him time off, but had to leave work early because his arm began to swell and hurt.
Carl Head, supervisor, testified that he believed claimant used poor judgement in not protecting his arm, but stated that he did not notice the claimant acting intoxicated or otherwise impaired the evening of the accident.
Claimant stated he was exposed to marijuana the day of his accident at a friend’s garage while working on a motor. Respondent employer terminated claimant’s employment on February 29, 2000 per company policy. Claimant received unemployment insurance benefits of $182 per week from March 27, 2000 through July 23, 2000.
The parties stipulate that but for Ark. Code Ann. §11-9-102(4)(B)(iv)(a), claimant would have sustained a compensable injury. Respondents appeal a decision that claimant rebutted the statutory presumption that his accident was substantially occasioned by the illegal use of drugs based on his positive drug screen.
Ark. Code Ann. § 11-9-102 precludes an award of benefits for any injury:
(iv)(a) [W]here the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders.
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 a physician’s orders.
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 a physician’s orders did not substantially occasion the injury or accident.
The documented presence of marijuana in a worker’s body creates a rebuttable presumption that his injury was substantially occasioned by the illegal use of 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 use of drugs did not substantially occasion the injury or accident. Billings v. Plum CreekTimber Co., Full Commission Opinion, filed February 28, 2002 (E910817). Whether the presumption has been overcome is a question of fact for the Commission. Express Human Resources III v. Terry, 61 Ark. App. 258, 968 S.W.2d 630 (1998).
Claimant argues that his drug test is invalid because it was administered two hours after he was given Demerol and Compazine. Dr. Richard Burnett, while not a toxicologist, reviewed claimant’s drug test and noted questionable procedures in obtaining claimant’s urine sample, specifically the administration of pain medications prior to drug testing.
In interpreting claimant’s drug test results, Dr. Burnett admitted that he could not provide an opinion within a reasonable degree of medical certainty on whether or not claimant’s test, as administered by the hospital, would accurately detect drug use in someone merely exposed to second-hand smoke. (Deposition, p. 6). However, Dr. Burnett did note that the hospital’s administration to claimant of 50 milligrams IV of Demerol and 5 milligrams IV of Compazine (on top of the 500 milligrams of Depakote claimant was taking) prior to giving him the drug test was improper. (Deposition, p. 9).
The dissenting opinion concludes that claimant’s questionable test results trigger the statutory presumption that claimant’s otherwise compensable injury was substantially occasioned by illegal drug. It further suggests that claimant’s testimony is the sole basis for awarding benefits and is insufficient to rebut this statutory presumption, citing
authority under Sanders v. CFSI Temporary Services, Full Commission Opinion, filed October 13, 1995 (E408568). In Sanders, the only evidence to substantiate claimant’s contention and rebut the statutory presumption was claimant’s controverted testimony. While the claimant offered coworkers’ testimony in support of his claim that he was unimpaired at the time he was injured, these witnesses only had first-hand knowledge of claimant’s condition the day following his injury. The Commission stated, “[t]he statements of individuals who observed the claimant on days other than the date of the accident simply are not sufficient to support a conclusion that the claimant was not impaired at the time of the accident.”
The facts in this case are distinguishable from Sanders in that there is other evidence to support claimant’s contention that he was not intoxicated the day of his accident. Carl Head, claimant’s supervisor, worked with claimant the day he was injured and was in a good position to observe the claimant’s demeanor. He testified that claimant did not appear to be any way impaired or intoxicated that day.
In examining whether the claimant’s accident was “substantially occasioned” by illegal drug use, the Administrative Law Judge noted that the accident would probably have occurred without any illegal drug involvement. Upon a review of the record in its entirety — including claimant’s supervisor’s testimony that he failed to notice any impairment of claimant’s condition on the day of his injury; the hospital’s improper administration of claimant’s drug test; and the fact that we believe that claimant provided credible testimony of the circumstances surrounding his accident — the Commission finds that claimant sustained a compensable injury. Specifically, we find that claimant’s test was invalid and that the preponderance of the evidence simply fails to establish the presence of illegal drugs in claimant’s body at the time of his accident. Subsequently, because the test used by the hospital was invalid, the presumption that claimant’s injury was substantially occasioned by the illegal use of drugs never arose.
We further find that claimant is entitled to temporary total disability benefits from February 29, 2000 until March 21, 2000; and that respondents are not entitled to any credit since this time frame does not include any period in which claimant received unemployment benefits.
All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 1996). For prevailing on this appeal before the Full Commission, claimant’s attorney is hereby awarded an additional attorney’s fee in the amount of $250.00 in accordance with Ark. Code Ann. § 11-9-715 (Repl. 1996).
IT IS SO ORDERED.
______________________________ SHELBY W. TURNER, Commissioner
Chairman Coffman concurs.
CONCURRING OPINION ELDON F. COFFMAN, Chairman
For the reasons discussed below, I concur in the principal opinion’s finding that the evidence in this case fails to establish the presence of illegal drugs in the claimant’s body. On that basis, I also concur in the principal opinion’s award of benefits.
As the principal opinion and dissenting opinion each point out, the record contains a printout of drug testing results purporting to contain positive test results for marijuana metabolites. The respondents offered this report into evidence to establish the presence of an illegal drug in the claimant’s body. The respondents also took the deposition of Dr. Richard Barnett, the medical review officer whose name appears on the drug testing results printout, and the respondents offered Dr. Barnett’s deposition testimony into evidence. There is no dispute that Dr. Barnett became aware during the course of his deposition that the hospital gave the claimant Demerol and Compazine prior to collecting a urine sample for drug testing, and Dr. Barnett indicated that “they shouldn’t have done it that way.” There is no dispute that this deposed medical review officer, whose name appears on the printout offered by the respondents, testified that he could not answer, without further research, whether or not the prescribed medications would have any effect on the drug test results at issue. Finally, I note that if Dr. Barnett ever did conduct any supplemental research on this question, the respondents did not offer those research results into the record to supplement the drug testing report and the deposition testimony that the respondents offered into evidence.
Against this background, I note the dissent’s argument that the claimant has failed to rebut a presumption that he was under the influence of marijuana at the time of his accident. I am somewhat confused by this argument. If the medical review officer, whose name appears on the test results, is unable to determine whether or not the drug test results are valid, on what evidentiary basis is the dissent purportedly able to surmise that the drug test results are valid, so as to establish the presence of illegal drugs in the claimant’s body? The respondents offered into evidence the drug test results and the testimony of the medical review officer responsible for these results who candidly admitted that he did not know whether or not the results are valid. It would require speculation and conjecture under these circumstances to conclude that the test results are valid in light of the testimony of the medical review officer in evidence. In short, the record fails to establish the presence of an illegal drug in the claimant’s body.
To the extent that the dissent asserts I am being critical of the respondents, and that I am switching the burden of proof to the respondents, I certainly agree with the dissent that the preponderance of the evidence must establish alcohol, illegal drugs, or prescription drugs used in controvention of a physician’s orders did not substantially occasion an injury or accident if the claimant is going to be entitled to benefits. See Ark. Code Ann. § 11-9-102(4)(B)(iv)(d) (Repl. 2002). I have previously pointed out myself that claimants have the burden of proof under the statutory provision at issue. See generally BeverlyClardy v. Medi Homes LTC Services LLC, Full Workers’ Compensation Commission, Opinion filed October 27, 2000(W.C.C. No. E911499)[Coffman concurring], affirmed Clardy v. Medi-Homes LTC Services LLC, 75 Ark. App. 156, 55 S.W.3d 791 (2001).
Again, in the present case, the claimant met the burden of proof because a preponderance of the evidence does not establish that the presence of alcohol, illegal drugs, or prescription drugs were in the claimant’s body when the injury occurred.
In this regard, as discussed above, the principal piece of evidence in the record intended to show the presence of an illegal drug in the claimant’s body was a piece of paper documenting drug testing results purporting to indicate the presence of marijuana metabolites in a sample taken from the claimant’s body. However, for reasons discussed above, the credibility of that report (i.e., the weight to be accorded the test results contained in that report) was destroyed by the subsequent deposition testimony of Dr. Barnett, who signed that report. Because Dr. Barnett’s testimony, in my opinion, destroyed the credibility of the drug testing report, the preponderance of the evidence in the record failed to establish the presence of an illegal drug in the claimant’s body at the time the injury occurred. The claimant met his burden of proof when Dr. Barnett’s testimony destroyed the credibility of the drug testing report. I only mention additional research that the respondents might have offered into evidence to illustrate one possible means by which the respondents might have been able to rehabilitate the credibility of the drug testing report which they did offer into evidence, but which is not credible in light of Dr. Barnett’s deposition testimony which the respondents also offered into evidence.
Because the record fails to establish the presence of an illegal drug in the claimant’s body when the injury occurred, the claimant has met his burden of proof.
_______________________________ ELDON F. COFFMAN, Chairman
Commissioner Yates dissents.
DISSENTING OPINION JOE E. YATES, Commissioner
I respectfully dissent from the majority opinion finding that the claimant proved by a preponderance of the evidence that he sustained a compensable injury on February 27, 2000. Based upon my de novo review of the record, I find that the claimant has failed to rebut the presumption that he was under the influence of marijuana at the time of the accident. Accordingly, I would reverse the decision of the Administrative Law Judge.
The only evidence pertaining to the occurrence of the accident and the claimant’s condition on February 27, 2000, 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):
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.
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. 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; Felts v. Parte, 208 Ark. 212, 185 S.W.2d 705 (1945). 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.Riceland Foods, 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.Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995).
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 that 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. James Sanders v. CFSITemporary Services, FC Opinion filed Oct. 13, 1995 (E408568).
In my opinion, the claimant’s testimony that he did not smoke marijuana on the day of the accident is not enough to rebut the presumption that the claimant’s accident was substantially occasioned by the use of marijuana. The claimant acknowledged that he failed to follow proper safety procedures by not utilizing the protective sleeve for his arm. Had the claimant had this protective sleeve on, he would not have had the burn to his arm. Failure to use any of the safety equipment provided to the employees is significant with respect to this employer. The employer requires all employees to wear gloves, hats, and sleeves before they ever begin their shift. The respondent-employer’s facility is a harsh environment. The employees are working with heated epoxy, which involves mixing cilica and resin, heated up to 350x. Mr. Head, the manufacturing supervisor who took the claimant to the hospital, stated that a pair of heavy-duty gloves last only four to six hours due to the extreme heat of the material the employees are dealing with.
The claimant admitted that he failed to put the canvas sleeve on prior to starting his shift on the night of the incident. The claimant confessed that he simply was not using common sense on the night of the incident. The claimant had taken the time to put on his hat and gloves, yet the sleeves, which were less than two feet away, were not utilized by the claimant. The claimant suggested that he was not fast enough removing his arm from the falling resin. Regardless of whether or not the claimant failed to act quickly enough, a canvas sleeve would have prevented any type of damage from occurring if it had been utilized. The claimant’s carelessness and inability to react quickly are certainly things that are associated with the use of illegal drugs. Marijuana slows down your reaction time. It is of note that earlier that afternoon, just hours before starting his shift, the claimant had been in a closed garage with two other individuals who were smoking marijuana. Mike Purdue, one of the claimant’s closest friends, was among the people in that garage. The claimant testified that he sees Mr. Purdue two to three times a week and on most occasions, Mr. Purdue is smoking marijuana. The claimant testified that he never smoked marijuana on the afternoon of the work incident, nor at any other time.
The claimant relies on the testimony of Dr. Burnett, who stated, “They shouldn’t have done it that way.” Dr. Burnett’s testimony was referring to the fact that Demerol and Compazine were administered to the claimant prior to the administration of the drug screen. However, Dr. Burnett did not expound on this and he testified that he was not a toxicologist and could not testify whether Compazine and Demerol would affect a urine test.
The concurring opinion is critical of the respondents for not offering into evidence supplemental research on the question of whether or not Demerol or Compazine had any effect on the drug screen results. In my opinion, the concurring Commissioner is shifting the burden of proof to the respondents, which is clearly impermissible under our Workers’ Compensation laws. I am at a loss to understand how the concurring Commissioner can conclude that the respondents have the burden of proof. The burden of proof rests upon the claimant to prove the compensability of his claim. Ringier America v. Comles, 41 Ark. App. 47, 849 S.W.2d 1
(1993). There is no presumption that a claim is indeed compensable.O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party having the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (Repl. 2002). In determining whether a claimant has sustained his or her burden of proof, the Commission shall weigh the evidence impartially, without giving the benefit of the doubt to either party. Ark. Code Ann. §11-9-704; Wade v. Mr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521
(1989); and Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987).
Ms. Deborah Williams, the manager of the lab at the Baxter County Hospital, also testified. She stated that she has never seen Demerol or Compazine alter the results of a drug test. However, Ms. Williams is not a toxicologist and was very quick to point out that that was just based upon her experience, not based upon the fact that she was a toxicologist.
In my opinion, the claimant has failed to rebut the presumption that his accident was substantially occasioned by the use of illegal drugs. The only evidence to rebut the presumption is the claimant’s testimony and the testimony of Dr. Burnett, who stated that, “They shouldn’t have done it that way.” The claimant’s testimony is not sufficient to rebut the presumption. See also; Flowers v. Norman Oaks Construction Co., 341 Ark. 474, 17 S.W.3d 472 (2000). I find the claimant’s testimony not credible. Further, Dr. Burnett’s testimony is not sufficient to rebut the presumption either.
Therefore, for all the reasons set forth herein, I must respectfully dissent from the majority opinion awarding benefits.
_______________________________ JOE E. YATES, Commissioner