Opinion
CLAIM NO. E705151
ORDER FILED OCTOBER 27, 1999
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE FRANK W. BOOTH, Attorney at Law, Van Buren, Arkansas.
Respondent represented by the HONORABLE MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed
OPINION AND ORDER
[2] Respondent appeals an opinion and order filed by the administrative law judge on May 19, 1999. In that opinion and order, the administrative law judge determined that respondent is liable for any reasonable and necessary treatment of claimant's compensable injury on April 14, 1997, for temporary total disability for the periods he was off work, and for attorney's fees. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed.Respondent has appealed on the limited issue of whether claimant's refusal to take a drug test raises the presumption that the injury was caused by the use of drugs or alcohol under Ark. Code Ann. Section 11-9-102(5)(B). The administrative law judge held, under strict construction of the statute, that claimant's refusal to test does not automatically raise the presumption that drugs or alcohol were involved. The administrative law judge found credible the testimony that claimant's work conditions caused his fall and that there was no evidence that claimant was impaired.
Claimant was working inside a tank which supports a dredge to check for and repair air leaks. The tanks were not lighted and were verty dark. Claimant, alone, used a flashlight and climbed up a "raggedy" stepladder to perform the repairs. The ladder he was using slipped out from under him, and he landed on his hand, causing injury. Claimant was helped out of the tank by a co-worker and witness at the hearing and was taken to the emergency room by another employee of respondent. At the emergency room, claimant was told he would have to provide a sample for a drug test. According to claimant, he objected because he did not think a test was required by his employer. When the employee who accompanied him to the hospital asked about the test, claimant told him he did not have to urinate. Claimant explained that he was hurting and mad, and that he and the employee had a very bad and combative relationship. Claimant stated that he thought the employee told the nurse to test him in order to embarrass claimant, and claimant refused in order to embarrass the employee. Later, claimant asked his job supervisor if post-accident drug tests were required and was told that he had never known anyone to need a drug test.
Under Act 796, an injury which is substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders is not compensable. Ark. Code Ann. § 11-9-102(5)(B)(iv)(a) (Repl. 1996). Every employee is deemed by his or her performance of employment services to have impliedly consented to reasonable and responsible bodily testing for alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders. Ark. Code Ann. § 11-9-102 (5)(B)(iv)(c) (Repl. 1996). In addition, the presence of any of these substances in the body creates a rebuttable presumption that the injury or accident was substantially occasioned by the use of the aforementioned substances. Ark. Code Ann. § 11-9-102 (5)(B)(iv)(b) (Repl. 1996). The Act also provides that an injured 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. Ark. Code Ann. § 11-9-102 (5)(B)(iv)(d).
The Arkansas Courts have not yet addressed the effect, if any, of an injured workers' refusal to submit to post-accident drug testing. Respondent cited two cases in support of its argument that claimant's refusal automatically triggers the statutory presumption that claimant's injury was substantially occasioned by the use of drugs or alcohol, Davis v. Your Employment Services, Inc., Full Commission Opinion Filed December 5, 1996 (WCC No. E415603) and Metcalf v. Trailmobile, Full Commission Opinion Filed April 2, 1997 (WCC No. E507991). We agree with respondent that this Commission has previously interpreted the law such that an employee's refusal to submit to a post-accident drug test triggers the presumption that the injury was substantially occasioned by drugs or alcohol. The Commission applied the rules of strict statutory construction to the Act in Davis, supra.
In Davis, the claimant severed her right ring finger while attempting to unclog a paint machine. At the emergency room, a nurse requested a urine sample, but the claimant refused, saying she did not need to urinate. The Commission found that the preponderance of the evidence established that the claimant was not credible and that she refused reasonable and responsible drug testing. The Commission discussed the refusal to submit to a drug test for the first time. After reciting the tenets of Arkansas statutory construction, the Commission stated:
Clearly, an employee's refusal to submit to reasonable and responsible drug testing denies the Commission the most conclusive evidence possible, i.e., analytical data, to ascertain whether intoxicants were present in the body at sufficient levels to cause impairment. In addition, an employee's refusal to submit to reasonable and responsible testing denies the employer the employer's right under Act 796 to collect and present evidence that an injured worker's injury was substantially occasioned by the use of intoxicants. Thus, in order to provide the maximum incentive for injured workers to submit to testing, the Legislature could have provided that an injured employee's refusal to submit to reasonable and responsible testing is an absolute bar to compensation. However, we note that even a positive test result is not an absolute bar to compensation. Instead, a positive test result creates a rebuttable presumption that the injury was substantially occasioned by the use of intoxicants and therefore shifts the burden of proof to the claimant to prove by a preponderance of the evidence that the injury was not substantially occasioned by the use of alcohol or drugs. After considering the statutory language of Act 796, the subject matter at issue, the object to be accomplished, the purpose to be served, the remedy provided, and our statutory mandate that the provisions of Act 796 are to be strictly construed, we believe that Act 796 does not require an absolute bar to workers' compensation benefits based solely on an injured worker's refusal to submit to reasonable and responsible testing. In that regard, we note that the drafters of Act 796 could have expressly provided for such a bar to compensation, but did not do so. Therefore, we believe that the mandates of strict construction compel a conclusion that Act 796 does not provide for an absolute bar to workers' compensation benefits based solely on a worker's refusal to submit to reasonable and responsible testing. Instead, we believe that a worker's refusal to submit to reasonable and responsible testing is only one factor which we must consider in determining whether a claimant's injury was substantially occasioned by the use of intoxicants. However, we also believe that the General Assembly intended that an injured worker's refusal to submit to reasonable and responsible testing would give rise to the rebuttable presumption that the injury was substantially occasioned by the use of drugs or alcohol. Therefore, we believe that the General Assembly intended that the claimant should have the burden of proving by a preponderance of the evidence that an injury was not substantially occasioned by the use of alcohol or drugs once the respondents prove by a preponderance of the evidence that the claimant refused reasonable and responsible drug testing.
In reaching this construction of Act 796, we note that one of the purposes of Act 796 was to provide for reasonable and responsible testing of injured workers for the presence of alcohol, illegal drugs or prescription drugs used in contravention of a physician's orders. See, Ark. Code Ann. § 11-9-102 (5)(B)(iv) (Repl. 1996). We note that Act 796 provides that every employee is deemed by performance of his or her employment services to have impliedly consented to reasonable and responsible testing. Ark. Code Ann. § 11-9-102 (5)(B)(iv)(c). However, we believe that Act 796 would actually create a dis-incentive to submit to testing, rendering the implied consent provision meaningless, unless the statute is interpreted such that a worker's refusal to submit to reasonable and responsible testing creates a rebuttable presumption that the injury was substantially occasioned by the use of intoxicants. Moreover, we believe this construction is consistent with the statutory purpose of protecting the rights of both the employee and the employer. Therefore, for the reasons discussed herein, we find that the claimant's refusal to submit to reasonable and responsible testing is only one factor to consider in determining whether her injury was substantially occasioned by the use of alcohol or drugs. However, we also find that the claimant has the burden of proving by a preponderance of the evidence that her work-related injury was not substantially occasioned by the use of alcohol or drugs.
In Metcalf, supra, the Commission found that there was circumstantial evidence that the claimant's injury of June 14, 1995 was substantially occasioned by the use of drugs or alcohol. After an accident in which he twisted his back and fell, the claimant went to the doctor where he was advised that he would have to give a urine sample for a drug screen. The claimant contended that he was unable to urinate and thus refused to give a urine sample. However, a preponderance of the credible evidence of record reveals that the claimant actually refused the drug screen because he was concerned that the test would show positive for drug use. The Commission reasoned: "Such evidence is obviously circumstantial evidence that intoxicants were present in his system giving rise to the statutory rebuttable presumption. If such inferences were not permissible, all claimants could refuse a drug screen and thus defeat the presumption established by Act 796 and effectively render Ark. Code Ann. § 11-9-102 (5)(B) null and void." The claimant inMetcalf was unable to rebut the presumption.
We agree with Respondent that the Davis and Metcalf cases are direct Commission authority for the imposition on claimant of the presumption that his injury was substantially occasioned by the use of drugs or alcohol. The next step in our analysis is to determine whether claimant successfully rebutted the presumption by proving by a preponderance of the evidence that his injury was not substantially occasioned by the use of alcohol or drugs.
Claimant suggests that his refusal to test was not a "refusal" within the meaning of the Code as well. On this record, we find that claimant did refuse to take the test, and therefore, we find that the analysis of Davis, supra, applies to impose the presumption upon claimant.
In Davis, the Commission discussed this aspect as follows:
In analyzing whether a claimant rebutted the presumption and proved by a preponderance of the evidence that an injury or accident was not substantially occasioned by illegal drugs, we have previously considered the circumstances surrounding the accident, including whether the claimant was following customary procedure when the injury occurred, and evidence indicating equipment malfunction versus operator error. See, Andre Jefferson v. Munsey Products, Inc., Full Workers' Compensation Commission, Sept. 12, 1995 (Claim No. E405575); Brian Oliver v. Weyerhauser, Full Workers' Compensation Commission, May 17, 1996, (Claim No. E411392). Evidence that other workers have sustained similar injuries may also be relevant. James Sanders v. CFSI Temporary Services, Oct 13, 1995 (Claim No. E408568). We have also considered evidence, or noted a lack of evidence, regarding whether the claimant was acting in an unimpaired manner at the time the injury occurred as well as evidence indicating that the level of drugs found by testing was insufficient to cause impairment. See, Oliver, supra; Sanders, supra.
In Davis, the Commission determined that the claimant had not rebutted the presumption with a preponderance of the evidence. The claimant's injury resulted from inattentiveness or distraction, and not from any type of machine malfunction. She did not follow customary procedure or posted warnings when she placed her hand under the machine. The Commission determined that the claimant's disregard for safety in placing her hand under the machine, her inattentiveness once she placed her hand under the machine, and her refusal to submit to a urine drug test later that morning, were each evidence that the claimant was impaired when the injury occurred. The Commission was not swayed by her testimony that she only rarely drank alcoholic beverages and her suggestion that she did not use drugs. In light of the claimant's refusal to submit to urine drug testing on the morning her injury occurred, her testimony regarding her lack of drug or alcohol use was entitled to little weight.
The Commission, in Brown v. Alabama Electric Co., (WCC No. E411130), determined that the claimant's denial that he used marijuana on the date of the accident was insufficient to constitute a preponderance of the credible evidence and rebut the presumption that the accident was substantially occasioned by the use of marijuana. The claimant had admitted using marijuana in the past, and there was no other explanation for his accident. See also, James Sanders v. CFSI Temporary Services, Full Commission Opinion Filed Oct. 13, 1995 (WCC No. E408568).
In Graham v. Turnage Employment Group, Full Commission Opinion Filed January 10, 1997 (WCC No. E509171), the claimant was installing insulation on the top of a building when he slipped and fell thirty feet. He tested positive for marijuana metabolites. At the hearing, the claimant's only evidence proffered to rebut the presumption was his own contradictory testimony regarding drug use (both admitting and denying marijuana use) and the testimony of a physician that the test results were consistent with both impairment and full ability. In analyzing whether the claimant rebutted the presumption, the Commission stated the following:
A statutory presumption is a rule of law under which the finding of a basic fact compels the finding of a presumed fact, unless sufficient evidence to the contrary is presented to rebut the presumption. See, Black's Law Dictionary, (5th Ed.). If evidence which is contrary to the presumed fact is presented, the determination of the existence or nonexistence of the presumed fact is a question for the trier of fact. Ross v. Vaught, 246 Ark. 1002, 440 S.W.2d 540 (1969); Curtis Circulation Co. v. Henderson, 232 Ark. 1029 (1961); Ford Son Sanitary Co. v. Ransom, 213 Ark. 390, 210 S.W.2d 508 (1948); and Ball v. Hail, 196 Ark. 491, 118 S.W.2d 668 (1938). Just as the determination of the weight to be given to the evidence is a matter within the province of the trier of fact, the determination of the weight to be given to the presumption is a matter within the province of the trier of fact. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973). In this regard, the presumption should be given the weight necessary to "best serve the interest of justice." Id.
When the only evidence as to the occurrence of the accident and the claimant's condition at that time presented to the Commission was the claimant's own testimony, the Commission looked to the Supreme Court in Dunn, supra, (Barnhart, Use of Presumptions In Arkansas, 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.
The Commission, therefore concluded that the question of whether the testimony of an interested party is sufficient to rebut the presumption is a question for the trier of fact. 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).
The claimant in Graham did not rebut the presumption raised by his positive drug screen with his denial of having used marijuana on that date of the accident, or the equivocal testimony of a doctor. The claimant suffered a severe lack of credibility. The Commission noted James Sanders v. CFSI Temporary Services, Full Commission Opinion Filed Oct. 13, 1995 (WCC No. E408568), in which the Commission held that a claimant's mere denial of drug use is insufficient to rebut the presumption, in light of a positive drug test and no other evidence as to the claimant's impairment or lack of impairment or the ature of the accident.
In Oman v. Chem-Fab Corporation, Full Commission Opinion Filed April 1, 1998 (WCC No. E701316), the Commission was almost presented with a similar question where a claimant refused a drug screen. In that case the Commission refused to accept the argument that his refusal operated as a bar to recovery because the issue was not raised at the hearing, but was raised for the first time on appeal, so the Commission's comments are merely dicta. However, the Commission did state that it did not believe the argument was meritorious:
In the present claim, there is an indication that the claimant ever consumed any intoxicants, or that drug use could have played any role whatsoever, in the claimant's injury. In this regard, the evidence indicates that the claimant's injury occurred as the result of conduct by a co-worker, and the claimant's own conduct was of a potentially contributory factor. Therefore, even if the respondents' had properly raised the issue below, so as to create the rebuttable presumption under Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) by the claimant's refusal to take a drug test, we would find that, under the circumstances of the present injury, the claimant has rebutted any presumption that his injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders.
In the present claim, the only evidence that Claimant's injury was substantially occasioned by the use of alcohol or drugs is the fact that he refused to provide a urine sample for the drug test. No one testified that Claimant appeared to be under the influence of any substance, or that his appearance, behavior or judgment seemed impaired, or that he carried an odor of any type of intoxicating substance.
As regards "what happened" in the tank in the present case, and the condition of the ladder used by the claimant, it has been suggested that the claimant and his co-worker, Mr. Meek, presented contradictory testimony. The claimant and Mr. Meek presented the following testimony regarding "what happened" to the claimant, and the circumstances surrounding the claimant's use of the ladder at issue. For our part, we fail to see any contradiction on any salient point in the following testimony.
Mr. Meek testified in relevant part as follows:
Q. Okay, now, had you done this type of work where you take the ladders inside the tanks?
A. Yeah. We was using step ladders.
Q. Okay.
A. And them was all raggedy, too.
Q. Okay.
A. The legs was broke on them.
Q. Have you ever had any problem with the ladders not holding?
A. No, I'm pretty light weight, though. I'm a small feller, and I didn't have no trouble with them really.
Q. Did you see the ladder that Mr. Thompson was using that day?
A. Yeah.
Q. And how would you describe it?
A. Well, it was — see, it had some steps missing on it, and it was in pretty bad shape. It had some bent up spots on it. The feet was off of it, the rubber pad feet.
Q. Uh-huh.
A. They was off of it. It didn't have none of them on there.
Q. What effect does the rubber pads being gone, how does that affect the —
A. It keeps it from sliding.
Q. That's what the rubber pads are there for?
A. Uh-huh, to keep them from sliding.
Q. And what if they're not there?
A. Then the ladder will slide out from under you.
* * *
Q. Now, this ladder that you mentioned that he was on, is this a ladder that you've seen before yourself?
A. Yes.
Q. And you've used it before yourself?
A. I've always put it to the side.
Q. Okay, because you don't think it's a good ladder?
A. Well, we was using it to get in and out of the manholes with, out of the tanks.
Q. And you said you used a step ladder?
A. Yeah, in my other tanks they use step ladders.
Q. Is that something that Mr. Thompson could have used instead of this other ladder?
A. No, we had them all. We had them all; we was using them.
Q. In some — can you tell by looking at this ladder that he was using that it's not safe?
A. Not really. It was sort of dark in that hole. It didn't have very good light in there.
Q. But you say it had no rubber feet on it.
A. Huh-uh, it didn't have any rubber feet on it.
Q. And it's missing some steps, I believe, you said?
A. Yeah.
Q. And is that something that's noticeable to the employee as he tries to ascend this ladder?
A. Well, it would just all depend on how it was turned up there against the wall. If it was turned to where you can see it, it was noticeable. But if it was turned to where the light wasn't shining on it, you couldn't tell it. [Emphasis ours]
Claimant testified in relevant part as follows:
Q. And just for background, just briefly go over what happened that day.
A. I was working, and I was asked to go down and fix some leaks in this tank, and I went down in there and all I had was a flashlight, and I went down there and seen a ladder that I could work off, and I brought this bottle to check the leaks to see where I could find some. And I climbed up that ladder and while I was checking the leak the ladder fell out from under me. It was so dark in there I couldn't actually — when I fell, I didn't know what I had hit or what I'd fell against. My elbow and my ring finger was broke, and these other two were dislocated, and when I came out of the hole, they were all pointing in one direction. So I'm not sure what I hit in there. I would think it was some kind of angle as I come down off of the wall sliding.
* * *
Q. What do you think was the factor that caused the accident?
A. The ladder just slipped. I've been working construction for 30 years, and, actually, I've never had a ladder slip out from under me like that. But I was just climbing up there, and it just slipped. Now, the main thing is that they went in there and painted these floors, and that made it even more slicker, and I haven't been on a painted floor up to that time. I had been on, you know, a floor before that was painted, but up to that time I wasn't on a painted floor, and it seemed like it was slippier in there to me.
Q. Was there any moisture in there?
A. Oh, there's always moisture in there in these tanks and stuff.
Q. Do you know what kind of paint they used to paint the floor?
A. No, just industrial — brown industrial paint.
Q. Is it a water-based paint or an oil-based paint?
A. I would imagine an oil-based paint.
Q. Do you know how long it had been painted?
A. Joe Bottoms did the painting, and he had been working on there for several weeks.
* * *
Q. And you were inside of a tank?
A. Yes.
Q. And nobody could see you or what you were doing in there, is that right?
A. No, that's right.
Q. And were you in there the whole day?
A. No.
Q. How long had you been in there?
A. Two or three hours.
Q. And you got on a ladder that, according to Mr. Meek, was not a good ladder, is that correct?
A. I didn't really know. It was dark in there. All I had was a flashlight, and it's a room bigger than this room. I really didn't notice it.
Q. Had you used that ladder before?
A. I don't — I'm not sure.
Q. And the floor was freshly painted, so it was slick?
A. It had been painted within the last week anyway.
Q. Did you notice there were any rungs missing from the ladder?
A. There was rungs, now, he's saying they're missing. But they're not missing. I have a picture of them over there. They're just cracked.
Q. Okay, is this a metal ladder?
A. Yes.
Q. All right.
A. And I didn't realize that until after I took the picture of them.
Q. And for some reason the ladder fell out from under you or slipped out from under you or whatever?
A. Yes, sir.
Q. How far up the ladder were you when this happened?
A. No more than ten to twelve feet.
Q. And how long of a ladder is it?
A. A ten foot ladder maybe. Well, the bottom of my feet wasn't ten foot up. I'm saying my bottom of my feet were five feet, six feet up.
Q. On a ten foot ladder?
A. Yeah, or half way up.
Q. No rubber feet and it's on a slick floor?
A. Yeah.
To the extent that it has been suggested that Mr. Meek testified that claimant selected this ladder and that claimant then took this ladder into the tank where he was going to work, we initially point out that no where in Mr. Meek's testimony did Mr. Meek testify that claimant took a ladder into the tank. The only reference to claimant taking a ladder into the tank was found in the first question quoted above. On this record, the evidence is inconclusive whether claimant took the ladder into the tank or whether the ladder was already in the tank, although claimant's testimony would tend to indicate that the ladder was already in the tank.
At any rate, the evidence does establish that the metal ladder at issue was missing its rubber feet, and both claimant and Mr. Meek have testified that the disrepaired condition of the ladder available to claimant would cause the ladder to slip across the floor, which is exactly what happened. The evidence of record, therefore, indicates that the lack of rubber feet on the available ladder was the "immediate and direct" cause of claimant's accident and injury. Compare, ERC Contractor Yard Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998);Clark v. Sbarro, Inc., ___ Ark. App. ___, ___ S.W.2d ___ (October 6, 1999).
Under these circumstances, we find that claimant has rebutted the presumption that his injury was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders. In light of the corroborative testimony of Mr. Meek, to which we accord great weight, we find that claimant has proven by a preponderance of the evidence that alcohol, illegal drugs, or prescription drugs utilized in contravention of a physician's orders did not substantially occasion his injury or accident.
In reaching this conclusion, we note that respondent assert in its brief on appeal that the fact claimant would use a ladder in disrepair is evidence that claimant's injury was substantially occasioned by impaired judgment. Respondent also notes that alcohol use and illegal drug use can cause impaired balance.
The problem with respondent's "impaired judgment" theory is, of course that; if claimant's use of the defective ladder was indicative of impaired judgment, respondent having provided the claimant with a defective ladder would be equally indicative of impaired judgment. In a recent case rejecting the same line of reasoning proffered by respondent in the present case, the Court of Appeals reversed the Full Commission in Woodall v. Hunnicutt Construction, 67 Ark. App. ___, ___, S.W.2d ___ (July 7, 1999) on the following basis:
The fact that Summerhill climbed on the scaffolding that he knew was not nailed down on both sides demonstrates that Summerhill and appellant exercised the same judgment. That the Commission chose to find that appellant's judgment was impaired by the use of drugs while finding that Summer hill displayed "presence of mind" and "quick judgment" in keeping himself from harm when the scaffolding collapsed is, we believe, indicative of inconsistent logic. Both workers climbed on the scaffolding. Both worked there until it collapsed. It may be reasonably concluded that neither worker exercised good judgment or that both co-workers exercised poor judgment. But it cannot be fairly concluded, consistent with logic, that appellant's behavior in stepping onto the scaffolding that Summerhill constructed was so different in fact or in its effects as to be distinguishable from Summerhill's judgement. Thus, the Commission erred when it inconsistently reasoned appellant's injury to be substantially occasioned from illegal drug use based on conduct that it commended when engaged in by Summerhill, a co-employee not shown to have taken illegal drugs, who acted the same way.
Nor do we find any evidence of record to support respondent's "balance" theory. The testimony of Mr. Meek and claimant both attribute the ladder's fall to the lack of rubber feet which should have been present on the ladder for safety purposes. The only evidence which might appear to bear on claimant's ability or inability to balance was his testimony that he had been "in there" two or three hours. While this evidence could support an inference that claimant had normal balance (if the claimant was on the ladder for those two or three hours), we fail to see how this or any other evidence in the record supports a conclusion that claimant experienced problems with balance on the day in question. Likewise, if the ladder used by claimant had the rubber feet necessary to keep it from sliding, then the fact that claimant fell from a properly functioning ladder might support an inference that claimant's fall was attributable to balance problems. However, the evidence in the present case doesnot indicate that claimant fell from a properly functioning ladder. The evidence instead indicates that claimant's ladder did not have the rubber feet which would keep the ladder from slipping, and the evidence indicates that claimant became injured when the defective ladder slipped. Under the circumstances, we find that respondent's "balance" theory is contrary to the evidence.
Therefore, for the reasons discussed herein, we find that the decision of the administrative law judge must be, and hereby is, affirmed.
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.
__________________________ ELDON F. COFFMAN, Chairman
Commissioner Wilson dissents.
CONCURRING OPINION
[34] While I question whether claimant actually refused to submit to a drug test and whether an actual refusal triggers the statutory rebuttable presumption, I certainly concur with the ultimate outcome that claimant has successfully rebutted any presumption that his injury was substantially occasioned by the use of drugs or alcohol.If there ever was an employer in Arkansas who should be investigated for safety violations, this is one. Claimant had to use a defective ladder while inspecting and repairing a tank. The floor of the tank had been freshly painted, which made the floor slicker than usual. At some point, the ladder slipped and claimant fell. I agree with the principal opinion's summary of the relevant facts that rebut any presumption that claimant's injuries were substantially occasioned by the use of drugs or alcohol.
Although no investigation has been conducted to my knowledge concerning this employer's failure to provide a safe for its employees, I am compelled to point out that the only evidence in the record indicates that each ladder available for use by these employees was "raggedy" and the one which is the subject of this litigation had numerous defects. The Basic Safety Manual of the Arkansas Department of Labor details numerous rules related to the safety of ladders. Rule 29, Rule 30, Rule 32, and, in particular, Rule 37 appear to all have been violated according to the testimony in this case.
In spite of this uncontradicted evidence, respondent incredibly states that "the ladder was obviously defective and anyone with all of their faculties would not use the ladder because of its state of repair." Under the facts of this case, such a statement is untenable and borders on desperation. Every ladder provided by this particular employer was unsafe. Now, respondent has the audacity to blame claimant for using a defective ladder to perform his employment duties. In my opinion, this employer needs to get its own house in order before another employee is seriously injured.
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