CLAIM NO. E609376
BRENT J. TODD, EMPLOYEE, CLAIMANT v. MORGAN BUILDING, EMPLOYER, RESPONDENT and LUMBERMEN’S UNDERWRITING ALLIANCE, INSURANCE CARRIER, RESPONDENT Before the Arkansas Workers’ Compensation Commission
OPINION FILED AUGUST 4, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE CHRISTOPHER PAUL, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by the HONORABLE TERENCE JENSEN, Attorney at Law, Benton, Arkansas.
Decision of Administrative Law Judge: Affirmed.
[1] OPINION AND ORDER
[2] The respondents in this case asserted the defense of intoxication as set out in A.C.A. § 11-9-102(5)(B)(iv) (Repl. 1996). In an opinion dated November 25, 1996, the administrative law judge held that the claimant had established that his use of marijuana did not substantially occasion his otherwise compensable injury. From that decision, the respondents have appealed. Based upon our de novo review of the record, we find that the administrative law judge’s decision is correct and should be affirmed.
[3] The claimant injured his right knee in a fall on July 3, 1996. At the time of this fall, the claimant and his immediate supervisor were standing on a make-shift scaffold installing ceiling panels. One of the boards broke causing the claimant and his supervisor to fall. As a result of this fall, the claimant suffered an injury to his right knee. [4] After reporting the injury to his employer, the claimant was transported to the hospital for emergency treatment. At that time, the claimant also submitted to a drug test. That test was positive for the presence of marijuana. [5] The respondents do not contest the fact that the fall occurred. Rather, they contend that the injury was substantially occasioned by the claimant’s use of marijuana and that the claim is therefore not compensable pursuant to A.C.A. §
11-9-102 (5) (B) (iv). In addition to providing for the above-described defense, the statute also provides that the presence of such drugs shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of such illegal drugs. The statute goes on to provide that an employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the prohibited substances did not substantially occasion the injury or accident. [6] The claimant does not deny that he is an occasional user of marijuana. At the hearing he admitted to having consumed marijuana four days prior to the injury. However, the claimant offered testimony from Mr. Jerry Ellis, the claimant’s immediate supervisor who was working with the claimant on the day of the injury. Mr. Ellis stated that the claimant did not appear intoxicated or in any way impaired or behaving in an unusual or unexpected manner. The claimant also testified that the injury was caused by a board which broke under him and Mr. Ellis. On that basis, the claimant argues that the fall could not have been occasioned by any intoxication or impairment, since the board would have broken regardless of his physical state. [7] Mr. Ellis’ testimony corroborated the claimant’s testimony. In this regard, Mr. Ellis stated that the scaffold arrangement was a standard method with him. He described their scaffold arrangement as consisting of some 2′ x 8″ planks with one end of the boards being on a saw horse and the other end resting upon the rungs of a step ladder. Mr. Ellis stated that he always used such an arrangement when installing ceiling panels and was still using that method as of the time of the hearing. [8] The respondents argued the intoxication defense did apply and that the claimant had not rebutted the presumption. The respondents offered evidence to the effect that earlier on the day of the claimant’s injury he and Mr. Ellis had fallen when another board had broken underneath them. However, on that first incident they were not injured. The respondents contended that had the claimant’s judgement not been impaired from the effects of marijuana, he would not have returned to the same scaffold arrangement. The respondents also offered testimony to the effect that there were safer ways to arrange the scaffolding than that employed by Mr. Ellis. [9] The administrative law judge held that the claimant successfully rebutted the presumption that the claimant’s intoxication had substantially occasioned the injury. The administrative law judge was apparently persuaded by the fact that the scaffolding arrangement was chosen by the claimant’s immediate supervisor and that the claimant had no choice in the matter. Also, there was no indication that the claimant’s intoxication could have played any role in the board breaking. [10] The sole issue presented on the appeal is whether or not the intoxication defense acts to bar the claim for benefits filed herein. In turn, that issue depends upon whether or not the claimant was able to rebut the presumption provided for in A.C.A. §
11-9-102(5)(B)(iv). In our opinion, the claimant has done so and we affirm the administrative law judge’s decision. [11] There is no dispute that the incident described by the claimant and Mr. Ellis did occur. That is, while acting in the course and scope of their employment, the board upon which the claimant and Mr. Ellis were standing broke. There is also no question that the claimant’s knee injury was the result of this fall. In order to prevail in this claim, the claimant must establish that the effects of the marijuana which were found in his system did not substantially occasion his injury. Our review of the record does not reveal any facts demonstrating that intoxication did, or could have, played any role in the claimant’s injury. He was injured because the scaffolding upon which he was standing broke. The claimant’s supervisor, Mr. Jerry Ellis, testified that at the time the fall occurred, he and the claimant were nailing a ceiling board into the ceiling. According to both Mr. Ellis and the claimant, the board simply broke causing both of them to fall to the floor. [12] The only argument made by the respondents to demonstrate how the claimant’s intoxication could have played a role in the injury is that the claimant should have refused to use the scaffolding arrangement after the first board broke. However, as the administrative law judge noted, the claimant was working with his immediate supervisor who had directed the scaffold to be arranged in that manner. Both Mr. Ellis and the claimant indicated that they did not believe that the arrangement was inherently dangerous. They were of the opinion that the first fall occurred merely because of a faulty board. In fact, Mr. Ellis testified that he had used this arrangement for many years and was still using it. The respondents have argued that the claimant could have refused to return to the scaffolding arrangement unless steps were taken to make it safer. However, we find that the claimant’s willingness to continue working under the conditions of his employment in the present case was in no way indicative of any intoxication or any impaired judgment which might be associated with intoxication. Instead, the evidence simply establishes that the claimant was performing his assigned employment duties when a scaffolding board unexpectedly broke causing the claimant’s compensable injury. [13] Therefore, after conducting a de novo review of the entire record, and for the reasons discussed herein, we find that the credible testimony of the claimant and Mr. Jerry Ellis establish that the claimant’s injury was caused by a faulty board and was in no way causally related to the marijuana which the claimant used at some point prior to the injury. Consequently, we find that the defense set out in A.C.A. §
11-9-102 (5)(B)(iv) does not act as a bar to the present claim. The respondents are hereby ordered and directed to provide to the claimant all reasonable and necessary medical care as well as any disability benefits to which the claimant is entitled. All benefits which have previously accrued in this matter shall be paid to the claimant in a lump sum without discount and this award shall bear interest at the maximum legal rate. The claimant’s attorney is hereby awarded the maximum attorney’s fee as provided for by A.C.A. §
11-9-715 as well as an additional fee of $250.00 for prevailing upon this appeal. One-half of such attorney’s fee shall be paid by the claimant out of benefits he receives herein and the balance shall be paid by the respondent. [14] IT IS SO ORDERED.
ELDON F. COFFMAN, Chairman PAT WEST HUMPHREY, Commissioner
[15] Commissioner Wilson dissents.