Opinion
CLAIM NO. E709656.
OPINION FILED JUNE 23, 2000.
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE JASON WATSON, Attorney at Law, Fayetteville, Arkansas.
Respondents represented by the HONORABLE CURTIS L. NEBBEN, Attorney at Law, Fayetteville, Arkansas.
Decision of administrative law judge: Reversed.
OPINION AND ORDER
The respondents appeal to the Full Workers' Compensation Commission an administrative law judge's opinion filed December 8, 1999. The administrative law judge found that the claimant has proven by a preponderance of the evidence that he suffered a compensable injury to the ring finger on his left hand while employed by the respondents on July 29, 1997. After de novo review of the entire record, the Full Commission reverses the opinion of the administrative law judge. We find from a preponderance of the evidence that the claimant's injury was substantially occasioned by the use of an illegal drug, marijuana.
I. HISTORY
Craig Brown, age 44, testified that he was previously employed with Danaher Tools; however, he was terminated from that company for altering a urine sample for a drug screen. Mr. Brown subsequently became employed with Kawneer Company in 1996. He admitted to smoking marijuana, an illegal substance, throughout 1997. Cole Price testified that he had worked at Kawneer for five years. Mr. Price was a "head stretcher." His job entailed processing aluminum mullions as they came out of a fabricating press.
Approximately two and one-half weeks before the alleged compensable injury, Mr. Brown testified, the employer transferred him to its extrusion department. The claimant was assigned to "tail-stretching" for the manufacture of mullions, aluminum frames, for windows. The claimant estimated that he worked one to two hours daily with five other employees in the tail-stretching department. Mr. Price worked with the claimant and observed that he was "kind of slow," had "red eyes," and "you'd have to repeat a few things to him."
The claimant testified that he began tail-stretching after his 7:00 a.m. break on July 29, 1997:
A. We were running a mullion called Big John's. I was on tail-stretcher. Cole was running the controls — the head-stretcher, I guess it would be. I was probably fifty feet away from him. The mullion comes out of the extrusion machine.
Q. Now, is the mullion the long aluminum strips?
A. Yes, sir.
Q. Okay. And this is a two-man operation?
A. Yes, sir.
Q. You were working on one end and Cole was working on the other?
A. Yes, sir.
Q. Okay. And you say he had the controls, or he had the tail-stretch controls?
A. I don't know if the controls of the tail- stretcher are on his end too, but I had the controls for the clamp to come down on it, on the tail-stretcher.
Q. Okay. So the mullion comes off some rollers, and what do you do?
A. Well, it comes over on some belts to us.
Those mullions are so long that we've got to help it along. Cole put his end in the head-stretcher and I'm on the other end putting it in the tail- stretcher. Hit the buttons for the clamp, and then he hits the buttons for the stretch operation. The jaws come up, and again we have to push the part over, because the part is so big, the belts won't handle that big of a mullion. And that is when my finger got caught and it stopped.
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Q. And explain what happened from that point, what you did from that point forward?
A. Okay. The — I believe I released the jaws, and we take our — I'm on one end and Cole is on the other. We push it over on the belts that take it over to the saw. And when I was pushing my end of it over off of the tail-stretcher onto the belts, the stop came down and — my hand was on the part, and the stop came down and pinned my finger between the stop and the part.
Q. Was the stop supposed to come down at that point in the operation?
A. No, sir. It's never supposed to come down on the part. That's not its design.
Q. Is there a safety device on the tail- stretching machine that is supposed to prevent that stop from coming down?
A. No, sir.
Q. It's not equipped with any eyes or sensors?
A. There is an eye and a sensor which is supposed to be what tells it when to come up and come down.
Q. And was the part still over that sensor when the stop dropped?
A. Yes, sir.
Q. Okay. And this stop caught your hands between that and the mullion?
A. Yes.
Q. Okay. What happened next?
A. Well, I was hung up, and it was just sitting there down on my finger, and I — there was — it's got a lot of pressure. There's no way you can just pull it put. If you pull it out, you're going to leave your finger, and you can't do that anyway. I — I believe Cole got it to come up from his end. He's got the controls. I believe he got up, because I was yelling at him and he heard me yelling at him and saw I was hung up. And the stop came up.
The respondents' attorney queried the claimant on cross-examination:
Q. Can you give me the dimensions of that stud or stop that came down and mashed your hand?
A. It's — As I remember, it's just a steel rod maybe two inches in diameter, maybe.
Q. Okay. And it comes up and down, doesn't it?
A. Yes, sir.
Q. So you had to have your hand in the area that could come down on when it smashed your ring finger on your left hand; isn't that correct?
A. Sir, that stop is never supposed to come down on that part.
Q. That's not my question. My question is, if that's only a couple of inches around, you have to have your hand in that area for it to come down on, don't you?
A. Yes, sir.
Q. If you had been a few feet above, above that stud, and just pushed that mullion over, this wouldn't have come down on your hand, would it?
A. Right.
Q. If you had been watching where that stud was, this wouldn't have come down on your hand, would it?
A. Right.
Q. You really have no idea why or how that bar came down, do you?
A. I only have speculation.
Mr. Price testified:
Q. What's the function of the stud or stop?
A. Well, the function of the stud is to keep that part from going too far over.
Q. Over toward what, sir?
A. Over toward the other belt. And it was supposed to be down the first time, you know, and as soon as you clamp down on the part, it goes back up. Well, that stud don't come back down until you bypass the eye going —
Q. What kind of eye?
A. There's a photo eye down there on this other belt, on this other table, and it goes down as soon as it bypasses that photo eye getting ready for your next part.
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Q. Okay. When you first saw Mr. Brown, can you tell me what position the stud was in?
A. It was down.
Q. Down?
A. Down on — it was down on top of his glove or his hand and the part. And by the time I got down there, he was already out of there.
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Q. Okay. Does Mr. Brown have more than one area he can stand in to push that mullion over?
A. Yeah. You have — you have some room in there.
Q. Okay. Do you know exactly why that stud came down on Mr. Brown's hand?
A. No, I don't.
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Q. Did he have his hand in the wrong place at the wrong time?
A. I'd say, yeah.
The respondents provided prompt medical treatment for the injury. Dr. Karl W. Haws assessed "Displaced fracture left ring finger" and "severe nailbed avulsion." Dr. Haws noted that a post-accident drug screen had been obtained according to company protocol. The claimant testified that he provided the specimen immediately after the accident, but that he had no concerns about providing a urine sample. "I didn't think in the whole world I would ever fail it," he stated. "I had smoked a little bit, like maybe a month before. And I've taken drug tests before. I know marijuana can stay in your system for up to a month."
A report from Laboratory Corporation of America, dated July 31, 1997, indicated that a specimen collected from the claimant on July 29, 1997 was positive for "cannabinoids." Despite his marijuana use, the claimant testified that he "was very surprised" that he tested positive. In any event, the respondent-employer immediately terminated the claimant's employment. The claimant continued to receive medical treatment for his finger throughout the remainder of 1997.
Mr. Brown filed a worker's compensation claim, contending that he sustained an injury to his left hand on July 29, 1997. The claimant contended that he had incurred reasonable and related medical treatment, and that he had been rendered temporarily totally incapacitated from August 18, 1997 through November 30, 1997. The claimant contended that he was neither intoxicated nor impaired on the date in question. The respondents contended that the claimant is barred from receiving worker's compensation, on the basis that the injury was substantially occasioned by the use of either alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders. Meanwhile, Mr. Brown worked for a number of other employers after his termination from Kawneer Company.
After a hearing before the Commission, the administrative law judge found that the claimant sustained a compensable injury and was entitled to temporary total disability compensation and medical treatment. The administrative law judge recognized that Act 796 of 1993 excludes from compensability an injury which is substantially occasioned by the use of illegal drugs. The administrative law judge noted that a drug test taken on the date of injury was positive for cannabinoids, and that the claimant admitted "casual" usage of marijuana, but that the claimant testified that he had not smoked marijuana for approximately one month prior to the accident. The administrative law judge thus found "that claimant has proven that the illegal drugs did not substantially occasion his injury; therefore, claimant has rebutted the presumption raised by A.C.A. § 11-9-102(5)(B)(iv)(b)."
The administrative law judge found that the claimant proved that the presence of illegal drugs did not substantially occasion his injury. "To the contrary," the administrative law judge determined, "the stop descended and pinned the claimant's finger as a result of a machine malfunction. According to the testimony of Price, the machine had malfunctioned on one other occasion. Further, according to Price, there was no reason for the claimant to expect the stop to descend when the clamp was open and further that if the machine had been functioning properly, claimant could have safely pushed the mullion to the other belt. Given this evidence, I find that claimant has rebutted the presumption that the injury was substantially occasioned by the use of illegal drugs; therefore, his claim for compensation benefits is not barred by the provisions of A.C.A. § 11-9-102(5)(B)(iv)."
The administrative law judge found that the respondents are liable for payment of all reasonable and necessary medical treatment, and that the claimant was entitled to temporary total disability from August 18, 1997 and continuing for a six week period (based on an off-work slip from Dr. Bailey). Respondents appeal to the Full Commission.
II. ADJUDICATION
Act 796 of 1993, as codified at Ark. Code Ann. § 11-9-102(4)(B)(iv) (Supp. 1999) 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 was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physicians' 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 used in contravention of the physician's orders did not substantially occasion the injury or accident.
In the present matter, the claimant was working with industrial machinery on July 29, 1997, specifically performing a "tail-stretching" operation. While manually pushing an aluminum part, his left ring finger was mashed by a descending stop in the machine. A urine specimen collected from the claimant immediately after the injury on was positive for "cannabinoids." Therefore, the Commission need not determine whether the claimant was a "regular" or "casual" marijuana smoker. The documented presence of "cannabinoids" in the claimant's body created a rebuttable presumption that his injury was substantially occasioned by the use of illegal drugs. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996). It is of no moment whether the cannabinoids were introduced into the claimant's body "regularly" or "casually."
Despite the presumption in this case that Mr. Brown's injury was substantially occasioned by the use of an illegal drug, marijuana, he may still be entitled to compensation if he proves by a preponderance of the evidence that the illegal drug did not substantially occasion the injury or accident. Ark. Code Ann. § 11-9-102(4)(B)(iv) (Supp. 1999). In reviewing the record, we note that the claimant had worked daily for two and one-half weeks in the extrusion department and was familiar with the tail-stretching operation. There is no real dispute that the claimant's finger was caught between an aluminum section and the machine "stop" on July 29, 1997. Although the claimant asserted that the stop was never supposed to come down on the part, the claimant admitted that if he had been watching where the stop was, he would not have been injured. Cole Price testified that the claimant's hand was "in the wrong place at the wrong time."
We disagree with the dissent's assertion that "it is undisputed that the machine, in fact, malfunctioned." On the contrary, it is not apparent from the record that the machine in fact malfunctioned. Mr. Brown testified that the machine contains a sensor which controls ascension and descent of the "stop." He testified that the part was "over the sensor" when the stop dropped. However, Mr. Brown admitted that he had "no idea" why the bar came down. The claimant testified that the stop came up after he called to Cole Price, but Mr. Price stated that "it was down on top of his glove or his hand and the part." Mr. Price further testified that he did not "know exactly why" the stud came down. Mr. Price stated that the stop had previously malfunctioned, but no other employees were injured.
The Full Commission again notes that a rebuttable presumption has been created that the claimant's injury was substantially occasioned by the use of illegal drugs. Further, we are unable to determine from the conflicting testimony of the two witnesses whether the machine in fact malfunctioned. There is no indication of record that any other employee was injured by the "stop," and the claimant readily testified that had he been watching, his finger would not have been injured. The direct cause of the claimant's injury was his carelessness resulting from his marijuana-induced impairment, not a malfunctioning machine. The Full Commission determines from a preponderance of the evidence that but for the claimant's impaired state as demonstrated by the presence of marijuana in his body, the claimant could have avoided injury on July 29, 1997. See, Bice v. Waterloo Industries, Inc., Full Workers' Compensation Commission, Aug. 13, 1999 ( E804423). Therefore, we find that the claimant failed to rebut the presumption that his injury was substantially occasioned by the presence of an illegal drug. The decision of the administrative law judge is reversed.
Based on our de novo review of the entire record, the Full Commission finds from a preponderance of the evidence that the claimant's injury was substantially occasioned by the use of an illegal drug, marijuana. We reverse the administrative law judge's finding that the claimant proved that he suffered a compensable injury on July 29, 1997. This claim is denied and dismissed.
IT IS SO ORDERED.
________________________________ ELDON F. COFFMAN, Chairman
________________________________ MIKE WILSON, Commissioner
DISSENTING OPINION
I must respectfully dissent from the opinion of the majority denying benefits on a finding that claimant's injury was substantially occasioned by the use of illegal drugs. The well-reasoned opinion of the ALJ should be affirmed.
The majority questions whether the machine actually malfunctioned. The majority states that ". . .it is not apparent from the record that the machine in fact malfunctioned." Actually, it is undisputed that the machine malfunctioned. Cole Price, a co-worker and "head stretcher," testified that the machine malfunctioned and had malfunctioned in a similar manner during the week prior to the work-related accident. Further, on page 6 of its brief to the Commission, respondents acknowledge ". . .that the machine did malfunction causing the "stop" to drop at a time when it normally would not. . . ." Therefore, it is an established fact that the machine malfunctioned. Since theemployer admits that the machine malfunctioned, it is hard to understand how the majority can insist that the evidence does not support such a finding. The majority appears to have confused the questions of whether the machine malfunctioned and why the machine malfunctioned.
The majority finds that claimant exercised impaired judgment by placing his hands in an area where they should not have been. However, claimant testified that the stop is never "supposed to come down at that point in the operation" and this testimony was corroborated by Price. Further, Price testified that claimant "had no reason to expect that stop to drop once those jaws were opened. . . ."
In ERC Contractor Yard Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (l998), the Arkansas Supreme Court found that there must be a "direct casual link" between the use of alcohol or other illegal drugs and the injury in order for compensation to be denied. In the present case, the immediate and direct cause of claimant's injury was a malfunctioning machine. As such, claimant has rebutted the presumption that his injury was substantially occasioned by the use of illegal drugs. Accordingly, claimant is entitled to benefits and the opinion of the ALJ should be affirmed.
______________________________ PAT WEST HUMPHREY, Commissioner