Opinion
CLAIM NO. E804423
OPINION FILED AUGUST 13, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by PHILIP M. WILSON, Attorney at Law, Little Rock, Arkansas.
Respondent represented by JIM KING, Attorney at Law, Pocahontas, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
[2] The respondent appeals a decision of the Administrative Law Judge filed on November 24, 1998, finding that claimant sustained a compensable injury to her hand on April 4, 1998, for which she is entitled to benefits. Based upon our de novo review of the entire record, we find that claimant has failed to meet her burden of proof. Therefore we find that the decision of the Administrative Law Judge must be reversed.At the hearing held on October 30, 1998, claimant contended that she sustained a compensable injury to her right hand when that hand became caught in a press she was operating. Conversely, respondent contended that claimant's claim is barred by Ark. Code Ann. § 11-9-102(5)(B)(iv) since claimant tested positive for codeine, amphetamines and methamphetamines during her post-injury drug screen. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent.
The evidence reveals that on April 4, 1998, claimant was operating Press No. 320 when her hand became caught in the press resulting in crush injuries to her second, third and fourth digits. A co-worker assisted claimant in removing her hand from the press. Claimant then went to the first-aid room where her fingers were bandaged. Claimant was offered further medical treatment which she refused. Claimant was allowed to take the remainder of the day off. Pursuant to claimant's testimony, over the weekend she took one of her mother's Tylenol 3's which contained codeine for her pain.
The evidence reflects that the incident occurred on Saturday and claimant did not seek medical treatment until the following Monday. Claimant testified that on Monday morning she called her employer and requested a vacation day claiming that her hand was still in pain. It was not until later in the morning that claimant decided to seek medical treatment. Upon seeking medical treatment, a post-accident drug test was performed. The toxicology report introduced into evidence revealed positive results for amphetamine, methamphetamine and codeine. When asked during cross-examination where claimant thought the positive codeine results came from claimant stated:
The codeine probably came from the Tylenol 3 with codeine.
As far as the methamphetamine results were concerned, claimant testified that she had no idea where that came from. Claimant was further asked:
Q. Did you — between Saturday morning when this occurred and Monday afternoon when you took the — you gave a sample for a drug test? Is that right?
A. Yes.
Q. Did you take anything that would have had Methamphetamine in it during that time?
A. No, not that I'm aware of.
Q. Okay. So it should have been the same on Saturday it would have been on Monday, you would have thought?
A. I would think. I took a lot of stuff for pain over the weekend.
Consequently, pursuant to claimant's own testimony, had she taken a drug test immediately following her accident, it would have shown positive for methamphetamines. Although claimant testified that she took a lot of "stuff" for pain over the weekend, she specifically stated that she was unaware of taking any product that contained methamphetamine. Therefore, we find that this claim is factually distinguishable from Morrilton Manor v. Brimmage, 58 Ark. App. 252, 952 S.W.2d 170 (1997) relied upon by the Administrative Law Judge. In Brimmage, the claimant had taken Tylenol 3 with codeine after her accident, but before her positive drug screen. However, unlike Brimmage, the claimant in the present case also tested positive for methamphetamine and amphetamines. Pursuant to the claimant's own testimony, she was unaware of taking any product after her accident which contained methamphetamines. Therefore, claimant testified that had the drug test been performed immediately following her accident, the results from methamphetamine would have been the same as it was when the drug test was eventually taken two days later.
The dissent is concerned with our acceptance of the claimant's testimony that she is not aware of taking anything which contained methamphetamines after her injury but before the sample was supplied for the drug screen.
This testimony is as follows:
Q. Okay. Well, there's been a drug screen, Ms. Bice, which we've talked about before, which shows positive for Methamphetamines and also for Codeine. Are you aware of that?
A. Yes.
Q. Where would you think the Codeine came from?
A. The Codeine probably came from the Tylenol 3 with Codeine.
Q. And where did you get that?
A. I got them from my mother.
Q. Now, do you have any idea where the Methamphetamine might have come from?
A. I have no idea unless it came out of one of those bottles.
Q. Did you — between Saturday morning when this occurred and Monday afternoon when you took the — you have a sample for a drug test. Is that right?
A. Yes.
Q. Did you take anything that would have had Methamphetamine in it during that time?
A. No, not that I'm aware of.
Q. Okay. So it should have been the same on Saturday it would have been on Monday, you would have thought?
A. I would think. I took a lot of stuff for pain over the weekend.
Claimant admitted taking Tylenol 3 and other medications for pain after her injury. The Codeine from the Tylenol 3 is shown in the drug screen results. Claimant neither admitted using Methamphetamines out right nor identified any product she took which might contain methamphetamines. Consequently we are left with no alternative but to conclude, just as the claimant did, that the drug screen results would have been the same on the day of claimant's accident. There is nothing devious or surreptitious about this reasoning.
Despite claimant's testimony that she does not know how the methamphetamines came to be present in her drug screen, claimant did not challenge the authenticity of the drug screen results. She merely denied any prior methamphetamine use. Consequently, we find claimant's denial without any corroborating evidence regarding the reliability of the results to be insufficient to discredit the results. The Arkansas Court of Appeals and the Arkansas Supreme Court have upheld our opinion in Eugene Ester v. National Home Centers, F.C. opinion Filed May 23, 1997 ( E504977) finding that the rebuttable presumption is consistent with the 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 system. Here we have a positive test result for methamphetamines. Claimant denied using methamphetmines, but she did not refute the test results, she just pled ignorance. Claimant voiced no objection to the introduction of the drug screen result nor did she call into question the accuracy of the results or the chain of custody of the urine sample. Accordingly, we find that once the drug screen results were introduced into evidence, without an objection or any credible evidence that the results are unreliable we find that the rebuttable presumption created in Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) was properly and sufficiently raised.
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 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 rebuttal 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 order. Ark. Code Ann. § 11-9-102(5)(B)(iv) (Repl. 1996). 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.
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). 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 methamphetamines were present in the claimant at the time of the drug screen and pursuant to claimant's testimony they would have also been present immediately following the accident. Interestingly, claimant never denied methamphetamine use. She just feigned ignorance as to where the drugs came from. In light of the positive drug screen and claimant's lackadaisical response to the introduction of the drug screen results, we do not find claimant's denial of methamphetamine use to be credible.
In E.R.C. Contractor Yard and Sales v. Lonnie Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998), the Arkansas Supreme Court held that a positive test result, regardless of the quantity detected, is sufficient to trigger the statutory presumption that an injury was substantially occasioned by the presence of that prohibited substance. In Robertson, alcohol was the substance detected in the post-accident drug screening. The Court in Robertson stated:
The plain language of Ark. Code. Ann. § 11-9-102 provides that once the presence of alcohol is established as a fact, there is a presumption that any injury or accident was substantially occasioned by the use of alcohol. This statute does not quantify the term "presence".
Consequently, we find that the positive test results for methamphetamines triggered the statutory presumption that claimant's injury was substantially occasioned by the use of this illegal substance. Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. E.R.C. Contractor Yard and Sales v. Lonnie Robertson, supra, Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). Although the evidence revealed that two co-workers also experienced difficulties with Press No. 320, we are not persuaded to find that this evidence overcomes the presumption that claimant's accident was substantially occasioned by the use of amphetamines and methamphetamines. In this regard, we note that claimant testified about the conversation she had with Mr. Mango, the safety director regarding two other people also experiencing a malfunction on this press. In addition, respondent's witnesses also testified about claimant's presses malfunctioning on two other occasions. Although these witnesses agreed with claimant's counsel that the accident was a result of the double pinch point we note that evidence still indicates that claimant was the only person who actually sustained an accidental injury.
The dissents suggests that we have failed to consider the testimony of respondent's witnesses regarding the cause of claimant's accidental injury. On the contrary, we note that respondent's witnesses are both disinterested witnesses and we have accorded their testimony the weight to which it is entitled. Specifically, we find that their testimony explaining how no other employees have ever sustained an accidental injury of the magnitude sustained by claimant while operating this particular press even with its malfunction wholly supports our finding that claimant's accidental injury was substantially occasioned by the presence of methamphetamines in her system at the time of the accident.
Unlike claimant, the other individuals who got their hands caught in the press were not injured. The Administrative Law Judge stated in her Opinion that respondent failed to offer any lay testimony to show that claimant was intoxicated or impaired on the date of her injury. In our opinion, this comment clearly shifted the burden upon respondent prematurely. By claimant's own testimony, the methamphetamines would have been present in her drug test immediately following the accident. The evidence reflected a positive drug test for methamphetamines. Contrary to these results claimant argued that she was not intoxicated or impaired at the time of the injury. In light of the evidence, we find that claimant carried the burden of proof to refute the positive drug results. This claimant failed to do. Consequently, the rebuttable presumption that the injury was substantially occasioned by claimant's illegal drug use applies to this claim. The mere fact that the press was later determined to have been defective, is not, in and of itself sufficient to prove that it was this defect, and not claimant's drug induced impairment, which caused claimant's accidental injury. As previously noted respondent's two witnesses agreed that the accident was caused by the malfunctioning press since the press had a double pinch point. However, this testimony does not rebut the statutory presumption that claimant's injury was substantially occasioned by the use of methamphetamines. Others obviously experienced malfunctioning with this particular press; but the others did not receive an accidental injury. The evidence reflected that other individuals had experienced difficulties with this press, however, there is no evidence establishing that the other individuals had, in fact, sustained an accidental injury let alone one of the magnitude experienced by claimant. Consequently, the record reflects that despite the malfunction, employees who were not shown to be impaired did not experience an accidental injury. Therefore, we find that but for claimant's methamphetamine use she would have been able to avoid serious injury as the other non-impaired employees clearly did. See, Tracy Riddick v. Binkly Co., Full Commission Opinion filed May 15, 1998 ( E603208), affirmed by the Court of Appeals in an unpublished Opinion on March 17, 1999. The dissent takes issue with our opinion claiming fault in our failure to discuss how claimant could have avoided injury. In our opinion no explanation is necessary. The record reflects non-impaired employees obviously avoided injury. This indicates that the use of clear, unimpaired judgment and swift, clear thinking were all that was necessary. If claimant were not impaired, her judgment and response time would not have been faulty. Consequently, the evidence reveals that drug impairment affected claimant's response time and thus substantially occasioned her accidental injury.
Therefore, for those reasons set forth herein, we find that claimant has failed to overcome the presumption that her injury was substantially occasioned by the use of illegal drugs. Accordingly, we find that the decision of the Administrative Law Judge finding that claimant sustained a compensable injury must be reversed.
IT IS SO ORDERED.
_______________________________
DISSENTING OPINION
[21] I must respectfully dissent from the majority opinion. I must dissent from the finding that claimant failed to overcome the presumption that her injury was substantially occasioned by the use of illegal drugs.The relevant code section, A.C.A. § 11-9-102(5)(B)(iv), provides that the claimant may overcome the rebuttable presumption that her accident was substantially occasioned by the use of illegal drugs by a mere preponderance of the evidence. See;Express Human Resources III v. Terry, 61 Ark. App. 258, 968 S.W.2d 630, (1998). An injury is substantially occasioned by the use of drugs or alcohol when there is a direct causal link between the use of alcohol or drugs and the injury. See; ERC Contractor Yard Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). A review of the documentary evidence and the testimony of respondent's witnesses establishes that this injury was caused by malfunctioning equipment and there is no evidence of a causal link between claimant's alleged drug use and her injury.
The majority is correct in observing that the "question of whether the testimony of an interested party is sufficient to rebut the presumption remains a question for the trier of fact." In this case however we need not rely only on claimant's testimony regarding the cause of her injury. Certainly we should also consider the testimony of the witnesses presented by respondent.
Mr. Ken Bates, first shift superintendent, testified that he had personally checked claimant's pullback restraint devices, intended to keep her hands free from harm, and they were properly fitted. Mr. Bates testified that the cause of claimant's accident was a double pinch point and that since this series of accidents respondent has changed the equipment. Regarding the cause of claimant's injury Mr. Bates testified as follows;
A. I am aware that there was an accident on a previous shift, yes, sir. The details I do not know.
Q. Her accident happened exactly like his. Is that correct?
A. I know how hers happened, yes, sir.
Q. And since you're the supervisor on her shift, those gloves were properly fitted? I don't know if I'm using the right word.
A. Sir, I personally checked her straps, personally.
Q. And is it fair to say that had there not been a double pinch point — I'm using your terms because I don't know anything about it. . . .
A. That's true, yes, sir.
Q. . . . those straps would have kept her hands from going in there?
A. Yes, sir.
Q. So the cause of this accident was the double pinch point?
A. Yes, sir.
Q. It's my understanding that since then you all have gone away from the gloves and put a double hand. . . .
A. Put a double hand control button.
This exchange makes it clear that in the opinion of her supervisor the cause of claimant's injury was the malfunctioning machine press.
Mr. Ron Mangold, safety supervisor, was called to testify by respondent. Mr. Mangold testified that the night prior to claimant's accident Mr. Jermaine Johnson suffered an accident like the one which injured the claimant while using the same press to create the same product. In that instance Mr. Mangold confirmed that Mr. Johnson's pullback restraint devices were properly adjusted. Mr. Mangold surmised that there was a problem created by the part they were running. Mr. Mangold further testified that he was aware that a third employee, Bonnie Mancea, had also gotten her hand caught in the same press. Regarding the cause of claimant's injury Mr. Mangold testified as follows;
Q. So is it fair to say that — I mean, the reason that this accident occurred, at least on the two that you've examined, is because of the double pinch point?
A. Yes.
Mr. Mangold's testimony is substantiated by a memo which he prepared after investigating the two accidents. That memo states in pertinent part that;
"On 4/6/98 Ted Ring advised me about two accidents that happened over the weekend on Saturday the 4/4/98. Jermaine Johnson and Mary Bice were involved in two separate accidents involving press 320. The press was investigated and come to find out it had a double pinch point that was caused by running a certain product while using the foot pedal. The corrective action taken to avoid this problem from happening again is to communicate to the employees that this certain product must be operated with palm buttons."
As did Mr. Bates, Mr. Mangold, an employee of respondent charged with maintaining a safe work environment, unequivocally identified the malfunctioning press as the cause of claimant's injury.
In short, claimant was operating a dangerously defective machine and it was simply a matter of time until someone was severely injured. Claimant was unfortunate to be that person. After the accidents with this particular press respondent recognized the need to redesign the process in order to avoid more injuries to it's employees. No redesign would have been necessary if claimant's injury was in fact substantially occasioned by illegal drug use.
Absent from the majority opinion is any discussion of how claimant could have avoided this injury. Appropriate safety devices were in place and being used properly at the time of claimant's injury. The majority has not cited any evidence of how any action by claimant contributed to her injury. There is no evidence that she contributed to the cause of her accident or made any error in operating the machine press, in fact the record indicates that it was outside of her control. Certainly there is no evidence that claimant's co-workers avoided injury by using clear, unimpaired judgment and swift, clear thinking. There is no evidence that by using clear, unimpaired judgment and swift, clear thinking claimant could have avoided her injury. In the absence of evidence of how, or even if, claimant could have avoided her injury it is speculation and conjecture to assert that she could have. It is axiomatic that speculation and conjecture, even if plausible, cannot be substituted for evidence.
Also absent from the majority opinion is any meaningful consideration of the testimony by Mr. Bates and Mr. Mangold regarding the cause of claimant's injury. While we are not required to accept as relevant or credible all evidence in the record we may not simply disregard it. In the case of Patterson v. Frito Lay, Inc., 66 Ark. App. ___, ___ S.W.2d ___, (1999), the Court of Appeals directed that we "may not arbitrarily disregard the testimony of any witness." By failing to consider the testimony that the machine malfunction was the cause of claimant's injury I feel that the majority has effectively disregarded that testimony.
This case is similar to Woodall v. Hunnicutt Construction, ___ Ark. App. ___, ___ S.W.2d ___, July 7, 1999, in which we held that the ability of a similarly situated co-worker to avoid injury constituted proof of impairment of the injured worker at the time of his accident. The Court of Appeals rejected our holding in that case, reversed the denial of benefits and remanded the case for an award of benefits. The Court of Appeals agreed with claimant's argument that "the fact that appellant's co-worker was not injured is not evidence of appellant's impairment." In the matter before us, as in Woodall, this argument is simply not persuasive, particularly when the cause of the accident is outside the control of the injured worker.
Unlike the majority I do not believe that the Administrative Law Judge prematurely shifted the burden of proof onto respondent by observing the absence of any testimony showing that claimant was intoxicated or impaired on the date of her injury. When I consider that the presumption that her injury was substantially occasioned by the use of illegal drugs may be rebutted by a mere preponderance of the evidence and the uncontroverted evidence that claimant was performing her job properly, using the prescribed safety features, on malfunctioning equipment which respondent's witnesses testified was the cause of claimant's accident I believe that the Administrative Law Judge's inquiry was entirely appropriate. I am concerned with the willingness of the majority to assert that the claimant concluded that methamphetamine would have been present in her urine immediately after her injury. I do not believe that the record supports that assertion. The majority's conclusion is based upon claimant's vague and qualified response to a rhetorical trap laid by respondent's counsel which is then subjected to layers of byzantine reasoning. In fact, claimant testified that she had no idea where the methamphetamine found in her urine came from and she was unaware of taking any product that contained methamphetamine. Quite simply the evidence on this point is ambiguous and based on the mechanics of claimant's accidental injury should have no bearing on the outcome of this claim. The conclusion that claimant admitted to using methamphetamine prior to her accident is too attenuated to be supported by the record.
The record contains plentiful and credible evidence that claimant's injury was not substantially occasioned by the use of illegal drugs. When I examine the record for evidence of a direct causal link between claimant's drug use and her injury I find nothing other than the presumption itself. Therefore, the evidence that claimant's injury was caused by malfunctioning equipment constitutes a preponderance of the evidence on the issue of causation and rebuts the presumption raised by the positive drug test. Accordingly, we should affirm the opinion of the Administrative Law Judge in it's entirety.
________________________________ PAT WEST HUMPHREY, Commissioner