Opinion
CLAIM NO. E714853
OPINION FILED JUNE 15, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE DEZETTE WEATHERS and the HONORABLE SHEILA CAMPBELL, Attorneys at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE THOMAS W. MICKEL, Attorney at Law, Little Rock, Arkansas.
Decision of administrative law judge: Affirmed.
OPINION AND ORDER
[2] The claimant appeals to the Full Workers' Compensation Commission an administrative law judge's opinion filed October 2, 1998. In her opinion, the administrative law judge granted the respondents' motion to dismiss the constitutional challenge to Ark. Code Ann. § 11-9-102(5)(B)(iv)(a)-(c). The administrative law judge granted the respondents' motion to admit into evidence Proffered Exhibits 1, 2, and 3, finding that the respondents sufficiently demonstrated a reasonable chain of custody of a drug screen. The administrative law judge found that the respondents established the presence of an illegal drug pursuant to Ark. Code Ann. § 11-9-102(5)(B)(iv)(a), thus creating a rebuttable presumption that the claimant's injury was substantially occasioned by the use of cocaine, and that the claimant failed to rebut the presumption that the illegal substance substantially occasioned the injury. The Full Commission has reviewed the entire record de novo, and we affirm the opinion of the administrative law judge in all respects.The claimant, age 41, applied for employment with the respondent-employer on or about October 23, 1997. On a Job Placement Medical Questionnaire, the claimant indicated that he was not using harmful drugs and did not use alcohol regularly. The claimant testified that at about 7:00 p.m. on December 4, 1997, he participated in the recreational use of an illegal drug. The claimant said he "took two or three puffs" from a "blunt," a cigar-like device, at a wedding reception. The claimant initially testified that he did not know what substance was in the "blunt," but that it tasted like tobacco and marijuana. The claimant testified at deposition that "I was kind of buzzing because I was drinking a Budweiser at the time and after I did all that, you know, I laughed and talked and carried on with them, you know, and the room was all smoked up." The claimant testified that he later returned to his home, ate, and went to bed before midnight.
The claimant testified that he arose from sleep at approximately 5:00 a.m. the next morning, December 5, 1997, and that he began his welding work for the respondent-employer at 7:00 a.m. The claimant testified that, except for a break at 9:00 a.m., he continually welded until 11:00 a.m., and was then assigned to help unload a cargo of steel from a truck, a procedure he had performed in the past. The claimant testified that the workers wrapped chain around the steel and used a crane to remove the load from the truck. The claimant testified that the bundle of steel was "swinging like a fish," and that he manually steadied and balanced the load to keep it from swinging into a building. The claimant described the alleged compensable injury at hearing:
And about the time he had eased it all off the truck there, and he stopped and let me down, and the chains broke. And when the chains broke like that, you know, it kind of tipped back like this and I couldn't get all the way out from under it and that's when it caught my foot and my knee.
The claimant testified that he could not avoid the falling steel, because the truck was parked very close to the building and did not allow room for escape. However, the claimant also testified, "I was trying to run to save my life." Johnny Parish, who was present and witnessed the incident, testified that the claimant was "right here in the middle of the shop when it happened. And he stumbled back, I'd say, a good 15 feet before he went to the floor." Mr. Parish did not agree that the proximity of the truck trailer and building wall prevented the claimant from avoiding the falling bundle of steel. Mr. Parish testified that the incident "happened real quick. But it wasn't because of anything in his way."
The claimant was transported to Jefferson Regional Hospital on the date of injury. There, he was treated by Dr. Alan Pollard, an orthopaedist, for treatment of a crush injury to the left foot and laceration to the right knee. Mr. Bobby Kientz of Health Care Plus procured a urine sample from the claimant at 2:00 p.m. on December 5, 1997. The urine sample obtained from the claimant produced drug screen results that were positive for cocaine metabolites in an amount greater than 1,000 nanograms per milliliter. When confronted with the presence of cocaine in his physical system, the claimant did not feign surprise. He testified, "Well, I just suppose I didn't know I was doing it, you know, and that's what was in it and it was in a stogy which is called a blunt. . . . I guess they laced it with some cocaine in it, you know."
On December 15, 1997, Dr. Pollard's impression was status post crush injury, left foot, with non-viable left great toe and significant soft tissue injury to the dorsum of the foot. Dr. Pollard planned revision surgery with possible amputation: "This may involve just the great toe, or if he has significant soft tissue injury, he may require more extensive debridement and amputation." The record indicates that Dr. Pollard performed a transmetatarsal amputation, left foot, for crush injury. On a December 15, 1997 Jefferson Regional Admission Assessment, the claimant indicated that he did not use recreational drugs. However, on another Admission Assessment dated February 4, 1998, the claimant admitted that he used recreational drugs on a "special occasion."
The claimant contended that he sustained a compensable injury which caused his foot to be surgically amputated, that he was entitled to temporary total disability benefits, medical expenses, permanent partial disability, and an attorney's fee. The respondents contended that the "intoxication defense" bars the employee's claim, because the claimant's December 5, 1997 injury was substantially occasioned by the presence of illegal drugs.
Hearing was held July 30, 1998. Gary Wimbish, a toxicologist, testified for the claimant regarding chain of custody of drug testing. Dr. Wimbish testified that certifying organizations require that, after an individual donates a specimen, it must be sealed in the presence of that individual. The individual signs or initials a tamper-proof seal, validating that the specimen truly belongs to the donor. That information is recorded as part of the initial chain of custody procedure that accompanies the sample to the laboratory. Once the laboratory receives the sample, the "secessioning technician," viz., the person receiving the specimen, will validate that the specimen received with the initial chain of custody procedure matches the paperwork. This is done by matching a coded sequence of numbers and validating that there has been no tampering or breaking of the seal in transit of the specimen to the laboratory. The specimen is then assigned a "laboratory secession number." At that point, each individual who has care, custody, and control of the specimen during different testing processes will be identified by an internal chain of custody.
Dr. Wimbish testified that, once the testing result is complete, a certifying scientist will review the results of the external and internal change of custody and date generated during the testing procedure. After the review by the certifying scientist, a toxicologist reviews the data and validates that all standard operating procedures established by the laboratory are complete and that all the work is correct. The toxicologist then signs the final report going to the customer, and he validates that the procedures established in the laboratory have been followed, and that the results are true, accurate, and correct.
At hearing, Dr. Wimbish viewed Respondents' Proffer #3, a document from Quest Diagnostics which indicated the presence of cocaine in the claimant's system, and he characterized Quest as "a fine laboratory." Dr. Wimbish was also presented Proffer #2, a NON DOT DRUG TESTING CHAIN OF CUSTODY FORM, dated December 5, 1997. After reviewing these proffers, Dr. Wimbish testified that the chain of custody was incomplete. "No information is here to make any conclusion as to whether chain of custody is true and accurate or not."
However, the respondents' Proffer # 1 consisted of correspondence dated July 21, 1998 from Dr. H.H. Miller, a toxicologist:
I have reviewed a facsimile copy of a laboratory report (#98066382-3) under the donor name of Lavell Ashley, which your office provided to me. This report was generated by Quest Diagnostics Incorporated during the ordinary course of our business and represents the final report of a drugs of abuse test performed on a urine specimen.
The report indicates that the screening test for evidence of the use of the drug cocaine was reactive, and also notes that a confirmatory test using Gas Chromatography/Mass. Spectrometry was positive for evidence of cocaine use (benzoylecgonine, a breakdown product resulting specifically from cocaine ingestion is the substance measured in the testing process.)
The respondents proffered this evidence after the claimant challenged the chain of custody of the drug screen. The respondents also produced the deposition of Bobby Kientz, the individual who obtained the urine specimen from the claimant on December 5, 1997. Mr. Kientz testified about the procedures he utilizes in the chain of custody of specimens, explaining how the claimant had signed the chain of custody forms, and how the specimen was labeled and sealed, transported, and taken into possession by the testing laboratory. Mr. Kientz testified that he had sent 30,000 to 40,000 samples to the testing laboratory used in the claimant's case, and he credibly denied any procedural "irregularities or failures." The administrative law judge found that the drug screen was conducted in a reasonable and responsible manner, and she admitted into evidence Respondents' Proffered Exhibits 1, 2, and 3. We affirm this finding.
Because the claimant's urine tested positive for cocaine metabolites, the administrative law judge found that the evidence establishes a rebuttable presumption that the claimant's injury was substantially occasioned by the use of an illegal drug. We affirm this finding. Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(5)(B)(iv) (Supp. 1997), provides:
(B) "Compensable injury" does not include:
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(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 a physician's orders.
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(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.
In the present case, the claimant testified that he had used alcohol and an illegal drug on Friday evening before reporting to work at 7:00 a.m. the next morning, December 5, 1997. At 11:00 a.m., the claimant attempted to manually maneuver a large, dangling load of steel hoisted by a crane. An injury occurred after the load came loose from its chain and the bundle of steel fell. The claimant, who had spent the previous evening puffing on a "blunt" laced with cocaine, did not get out of the way of the falling object and sustained injuries to his right knee and left foot. The respondents thus contended that the claimant could have avoided injury but for his use of cocaine. Dr. Kim Light, a pharmacologist, opined concerning the degree of a "cocaine hangover" the claimant would experience 12 to 24 hours after ingesting cocaine. Dr. Light concluded that the claimant would experience the effects of cocaine or a cocaine hangover within the 12 to 24 hour period. Counsel presented Dr. Light the circumstance of the claimant working near freight suspended by a chain, and he was asked to opine whether the effects of the illegal substance would impair the employee's ability to be aware of, notice, and react in time to move his foot from under the falling load of steel. Dr. Light concluded that, within a reasonable degree of medical certainty, a cocaine hangover would diminish the employee's prompt responsiveness to such an event.
The administrative law judge thus found that the claimant failed to rebut the presumption that his injury was substantially occasioned by the use of an illegal substance. We affirm. The administrative law judge recognized that the Arkansas General Assembly has strived to provide a healthy and safe work environment for employees, and has for this purpose discouraged the use of illegal drugs in the workplace by enacting Ark. Code Ann. § 11-9-102(5)(B)(iv). On the evening of December 4, 1997, the claimant admittedly inhaled fumes from a "blunt" containing illegal substances. The next morning, December 5, 1997, the claimant performed job duties in an impaired condition, risking harm to others and unfortunately injuring himself. Due to the presence of an illegal drug in his body, the claimant was unable to escape harm from a falling load of steel. After considering the amount of cocaine revealed in laboratory testing, Dr. Light unequivocally opined that the claimant's attentiveness, responsiveness, and reflexes were impaired at the time of the workplace injury. We find Dr. Light's testimony highly persuasive, and we find on this record that the greater weight of the credible evidence establishes that the claimant's injury was substantially occasioned by his use of an illegal drug, cocaine.
At the conclusion of the administrative hearing on July 30, 1998, the claimant, through counsel, announced that he would like to place "certain constitutional issues" into the record. The claimant opined that application of Ark. Code Ann. § 11-9-102(5)(B)(iv) violated equal protection, due process, and "fourth amendment right to legal service." The administrative law judge allowed the parties to brief the Commission on these issues prior to filing an opinion, but the claimant did not do so. In the Notice of Appeal to the Full Commission, the claimant states that admission of the drug test violated his Sixth Amendment "right to cross-examination," arguing that he was not given an opportunity to cross-examine the toxicologists that performed the testing. The United States Constitution, Amendment VI (applied to citizens of States by Amendment XIV), and Article Two, Section 10 of the Arkansas Constitution provide that the accused in acriminal prosecution has a right to confront and cross-examine the witnesses against him. Goston v. State, 55 Ark. App. 1, 930 S.W.2d 384 (1996). The claimant has failed to cite any authority indicating that a Sixth Amendment "right to cross-examination" is applicable to an administrative hearing setting in workers' compensation.
In addition, the claimant asserts that Ark. Code Ann. § 11-9-102(B)(iv) is "void for vagueness," and that "the term `substantial (sic) occasion' does not give sufficient notice of the conduct that it is intending to deter and produces arbitrary decisions by the Commission." All statutes are presumed constitutional, and all doubts are resolved in favor of constitutionality. Golden v. Westark Community College, 333 Ark. 41, 969 S.W.2d 154 (1998); ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997); McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997).
A law is unconstitutionally vague under due process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited. Craft v. City of Fort Smith, 335 Ark. 417, ___ S.W.2d ___ (1998). In a similar context, this Commission has noted that the party making this challenge must establish that the terms of the statute are so vague that persons of common intelligence necessarily guess at its meaning and differ as to its application. See, Malone v. Georgia-Pacific Corporation, Full Workers' Compensation Commission, opinion filed December 3, 1996 ( E401063), citing Harper v. Crockett, 868 F. Supp. 1557 (E.D. Ark. 1994). A statute will pass constitutional scrutiny if the language conveys sufficient warning when measured by common understanding and practice. Dougan v. State, 322 Ark. 384, 912 S.W.2d 400 (1995).
In arguing that Ark. Code Ann. § 11-9-102(5)(B)(iv) is unconstitutional, the claimant asserts that the term "substantially occasioned" is unconstitutionally vague. In ERC Contractor Yard Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998), the Supreme Court construed the phrase "substantially occasioned by the use of alcohol" in Ark. Code Ann. § 11-9-102(5)(B)(iv) as follows:
First, we turn to the plain and ordinary meaning of the words themselves. The word "occasion" when used as a verb is defined in Black's Law Dictionary as "to produce; to cause incidentally or indirectly; to bring about or be the means of bringing about."
Black's, supra at 1078. Thus, the word "occasion" is broad in scope and, standing alone, encompasses causation that may be indirect in origin. However, the word "occasioned" is modified by the adverb "substantially," which is defined as "actually and essentially." Black's, supra at 1428-29. When the words "substantially occasioned" are used together, the causal connection becomes more immediate and direct. . . . 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).
Robertson, at ___.
We recognize that Robertson involved the presence of alcohol rather than illegal drugs. Nevertheless, the Court clearly defined the meaning of "substantially occasioned" as applied to alcohol or illegal drugs, pursuant to Ark. Code Ann. § 11-9-102(5)(B)(iv)(a). After de novo review, we find that application of Act 796 of 1993 to this claim, as codified at Ark. Code Ann. § 11-9-102(5)(B)(iv), is proper under the Constitutions of both the United States and State of Arkansas.
Accordingly, based on the Full Commission's de novo review of the entire record, and for the reasons discussed herein, we affirm the administrative law judge's dismissal of the constitutional challenge to Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(5)(B)(iv)(a)-(c) (Supp. 1997). We affirm the administrative law judge's granting of the respondents' motion to admit into evidence Proffered Exhibits 1, 2, and 3, as the respondents sufficiently demonstrated a reasonable chain of custody of the positive drug screen. We affirm the administrative law judge's finding that the respondents established the presence of an illegal drug pursuant to Ark. Code Ann. § 11-9-102(5)(B)(iv) (a), which presence created a rebuttable presumption that the claimant's injury was substantially occasioned by the use of cocaine. Finally, we affirm the administrative law judge's finding that the claimant failed to rebut the presumption that cocaine substantially occasioned the injury. The Full Commission denies and dismisses this claim.
IT IS SO ORDERED.
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Commissioner Humphrey dissents.