Opinion
CLAIM NO. E603208
OPINION FILED MAY 15, 1998
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by SHEILA CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondent represented by ROBERT L. HENRY, III, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part; reversed in part; and vacated in part.
OPINION AND ORDER
[2] Respondent appeals from a decision of the Administrative Law Judge filed July 14, 1997 finding that claimant failed to demonstrate that the presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) violates due process and the equal protection clauses of the United States Constitution; that the drug screen results entered into evidence lacks credibility; that claimant sustained a compensable injury; and that Ark. Code Ann. § 11-9-102(5)(B)(iv)(c) violates the Fourth and Fourteenth Amendments to the United States Constitution. After conducting ade novo review of the entire record, we find specifically that claimant failed to demonstrate that the presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) violates the due process and equal protection clauses of the United States Constitution. Accordingly, we affirm this finding. We further find that claimant has failed to prove by a preponderance of the evidence that the positive drug screen offered into evidence lacks credibility, and we find that claimant has failed to prove by a preponderance of the evidence that claimant has sustained a compensable injury. Therefore, we reverse these findings. Finally, we vacate the finding of the Administrative Law Judge that Ark. Code Ann. § 11-9-102(5)(B)(iv)(c) violates the Fourth and Fourteenth Amendments of the United States Constitution.At the hearing held on January 16, 1997, claimant contended that she sustained a compensable injury on March 1, 1996, after reaching her left arm into a machine without first turning the machine off and that the presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) violates the due process and equal protection clauses of the United States Constitution. Respondent contended that claimant's injury was substantially occasioned by the use of drugs and is therefore not compensable. In her opinion, the Administrative Law Judge not only found the claim compensable after discrediting evidence offered into evidence by claimant, but also raised and advocated on her own motion a constitutional issue never raised by either party.
Our de novo review of the entire record reveals that claimant never questioned the validity of the drug screen, she never questioned the authenticity of the drug screen results, and she never questioned the constitutionality of respondent's ability to test a claimant for the use of illegal drugs under Ark. Code Ann. § 11-9-102(5)(B)(iv)(c). The only person in this case to raise these questions was the Administrative Law Judge. However, she did not raise these questions in advance of the hearing, which would allow respondent the opportunity to offer evidence and respond to these issues. The Administrative Law Judge threw out or excluded from consideration a drug screen as "fruit of the poisonous tree" when in fact claimant, herself, never contended, alleged or argued that the tree was, in fact, poisonous.
The undisputed facts in this case are set forth as follows:
1. Claimant is a 29 year old female.
2. Claimant sustained a serious injury to her left arm when she reached her arm into her machine at work without first turning off the machine.
3. Claimant was immediately rushed to the emergency room where she was prepped for surgery.
4. A Foley catheter was inserted.
5. Claimant was administered pain killing drugs.
6. A urine sample was taken from the Foley catheter bag and placed in a sealed uncontaminated container and sent to a laboratory for testing.
7. The urine sample tested positive for marijuana.
The only constitutional issue raised by claimant at the hearing is that Ark. Code Ann. § 11-9-102(5)(B)(iv) relied upon by respondent contains a rebuttable presumption which violates her right to due process and equal protection created by the Fourteenth Amendment of the United States Constitution.
The constitutional issue raised by claimant has previously been addressed by this Commission in Andre Jefferson v. Continental Loss Adjusting, Full Commission Opinion April 11, 1997 ( E405575). See also, Ester v. National Home Center, Inc., 61 Ark. App. ___, ___ S.W.2d ___ (March 18, 1998). In Andre Jefferson we found that the rebuttable presumption was constitutional. This burden is placed upon the party with greater access to the relevant evidence. In Jefferson we further found that placing this burden on the claimant is rationally related to the legitimate state purpose of returning the Arkansas Workers' Compensation system to a state of economic viability while ensuring that legitimately injured workers receive benefits as well as the legitimate state purpose of improving the safety of the workplace. Relying upon our finding in Jefferson, the Administrative Law Judge found that claimant failed to prove that the presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv) violates the due process and equal protection clauses of the United States Constitution. Claimant did not appeal this finding. Accordingly, we find that this finding of the Administrative Law Judge should be affirmed.
In finding that claimant sustained a compensable injury which is not excluded under Act 796 of 1993, the Administrative Law Judge found that Ark. Code Ann. § 11-9-102(5)(B)(iv)(c) is unconstitutional under the Fourth and Fourteenth Amendments of the United States Constitution and that the drug screen was unreliable. This constitutional issue will be addressed later in this opinion. The drug screen result was introduced into evidenceby claimant, not by respondent as stated by the Administrative Law Judge in her opinion. Claimant did not argue that the results were not credible or unreliable. In fact, by introducing the drug screen results into evidence, claimant conceded the authenticity of such results. If claimant questioned the authenticity of the collection of the drug sample or drug screen results, the burden is upon claimant to object to the introduction of such evidence. Obviously, by introducing the results into evidence herself, claimant conceded the reliability and authenticity issues. We are not persuaded, as the Administrative Law Judge was, that the test results were not credible. First, as previously mentioned, no one raised the credibility issue. If both parties agree to the admissibility and do not question the authenticity of evidence, it is not our position and it should not be the position of an Administrative Law Judge to find some reason to discredit it on these grounds. Accordingly, we find that claimant has failed to prove by a preponderance of the evidence that the drug screen results were not reliable.
The evidence reveals that claimant was operating a machine with which she was very familiar. Claimant had been advised in the past not to place any part of her body inside the machine while it was operating. Despite these warnings, claimant purposefully placed her left hand inside the machine while it was running, to adjust a coolant hose. It is claimant's testimony that she was following standard procedures when she placed her hand inside the machine to adjust the hose. However, we find it highly unlikely that claimant was ever advised that it was customary, standard procedure to place her hand into a running machine to adjust the hose. Everett Dunnley, general foreman for respondent, testified that all employees were advised never to place their hands into a machine while it was running. As explained by Mr. Dunnley, if the hose needs to be adjusted, such adjustments should be made when the machine is turned off. After assessing the weight to be accorded the conflicting testimony of claimant and Mr. Dunnley, we find that the greater weight of the evidence does not support a conclusion that claimant was following standard procedures when she reached into the machine while it was running. Logic dictates otherwise. In our opinion, claimant's actions were a sheer disregard for her personal safety which strongly suggests impairment resulting from drug use.
We further note that claimant offered no independent evidence to the effect that she was not impaired at the time the accident occurred. The only evidence regarding the state of claimant's impairment comes from claimant herself and the drug screen results. 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). The only evidence to rebut the drug screen results introduced into evidence by claimant regarding her state of impairment at the time of the injury was claimant's testimony that she had not smoked marijuana for a year prior to the accident and that the marijuana detected in her system was from second-hand smoke. However, claimant offered no medical evidence that the level of marijuana metabolites detected in her system could be the result of second-hand smoke. Moreover, the second-hand smoke in the environment in which claimant lived has existed for a long period of time. It is claimant's testimony that her boyfriend smoked marijuana continuously around her causing her to inhale the second-hand smoke. In our opinion, this argument is flawed by the fact that while living in this environment and allegedly inhaling second-hand smoke the claimant took a drug test prior to her employment with respondent and passed. If the post-accident drug screen results are a result of second-hand smoke, one would expect the pre-employment drug screen results to likewise detect marijuana metabolites since her environment has not changed. (Claimant began her employment with respondent in the fall of 1995, which, if claimant's testimony were to be believed, is after she last smoked marijuana). Consequently, we find that claimant's testimony regarding her use of marijuana lacks credibility.
Accordingly, we find that claimant has failed to present sufficient credible evidence to rebut the presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b). Therefore, we find that the injury was substantially occasioned by the use of illegal drugs. Claimant has offered no additional evidence or witnesses to corroborate her testimony regarding the state of her impairment. Nor has she offered any expert testimony to discredit the test results. We find claimant's testimony regarding her marijuana use lacks credibility. Therefore, we find that claimant has failed to prove by a preponderance of the evidence that her injury was not substantially occasioned by the use of drugs, and we reverse the decision of the Administrative Law Judge accordingly.
Finally, we find that claimant has failed to raise the constitutionality of the implied consent provision of Ark. Code Ann. § 11-9-102(5)(B)(iv)(c); therefore, we find that this portion of the Administrative Law Judge's decision should be vacated. It is the responsibility of the parties to raise constitutional arguments in a timely manner. This was not done by claimant in this case. Thus, respondent was not afforded the opportunity to defend against the constitutional claim raised by the Administrative Law Judge at the hearing. (We are not persuaded to find that the constitutional challenge raised by claimant's attorney at the close of her case is sufficient to invoke a Fourth Amendment challenge against unreasonable searches and seizures. Plainly, claimant's attorney qualified her constitutional challenge only to claimant's "constitutional rights of due process and equal protection.")
However, even if we were to find that claimant properly raised a constitutional challenge to the implied consent provision, a finding that we do not make, we find that claimant has failed to prove that the implied consent provision of the drug section violates the Fourth Amendment of the United States Constitution. This amendment provides:
The right of the people to be secure in their persons, houses, papers and affects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be searched, and the person or things to be seized.
Thus, in order for the implied consent provision to be found unconstitutional it must be found that the urine sample taken from the Foley catheter was a non-consensual, suspicionless search performed at the instance of "state action."
Nurse Sherry Ann Oldner testified by way of deposition that claimant consented to the drug test. As explained by Ms. Oldner claimant was unable to sign the consent form due to trauma and injury sustained and this is reflected on the form attached to the urine specimen. However, claimant did give her verbal consent to the test according to Ms. Oldner. Ms. Oldner specifically testified:
. . . the best that I can remember, she did, because it was very important for Binkley to have that specimen, and we knew that she was unable to sign, and I did advise her that I was going to be getting that for testing purposes.
When asked if claimant was coherent at the time Ms. Oldner discussed the taking of the urine sample, Nurse Oldner stated, "Yes, ma'am, she answered appropriately to all my questions." Thus, despite claimant's testimony that she did not consent to the drug testing procedure, Nurse Oldner's testimony proves otherwise.
Even assuming, arguendo, that claimant did not consent to the "search", we cannot find that claimant's actions were suspicionless. In the present case, claimant's actions of placing her hand inside an operating machine cannot be said to be an activity that is suspicionless or normal.
In analyzing the constitutionality of this provision, we must approach it in favor of constitutionality:
There is a presumption of constitutionality attendant to every legislative enactment and all doubts concerning it must be resolved in favor of constitutionality. The party challenging a statute has the burden of proving it unconstitutional.
Lambert v. Baldor Electric, 44 Ark. App. 117, 868 S.W.2d 513 (1993); Holland v. Willis, 293 Ark. 518, 793 S.W.2d 529 (1987). Thus, the implied consent section must be found constitutional if it is possible to do so. This provision is similar to Ark. Code Ann. § 5-65-202, an implied consent provision regarding the testing of motor vehicle drivers for alcohol. This implied consent provision has withstood constitutional challenges. SeeMercer v. State, 256 Ark. 814, 510 S.W.2d 539 (1974). In rejecting an argument that the drawing of blood against the driver's consent amounted to an unconstitutional search, our Supreme Court stated:
To suppress this evidence, appellant makes two contentions. The first is that it amounts to an unlawful search and seizure. Our legislature recognizes that one who drives an automobile on the highways of this state gives an implied consent to the taking of such tests, Ark. Stat. Ann. § 75-1045. A number of other states have similar laws. The validity of such laws was upheld in Schmerber v. California, 384 U.S. 757, 86 Sup. Ct. 1826, 16 Law Ed. 2nd 908 (1966). Consequently, we find no merit in the contention.
We find that the implied consent provision of Ark. Code Ann. § 11-9-102 (5)(B)(iv) is substantially similar to the implied consent provision of Ark. Code Ann. § 5-65-202 and therefore constitutional under the holding in Mercer v. State, supra.
The Administrative Law Judge relied upon a United States Supreme Court decision, Skinner v. Railway Labor Executives Assoc., 489 U.S. 602, (1989) to find our implied consent provision unconstitutional. However, as amply noted by respondent, this case actually rests in favor of finding the implied consent provision constitutional. Skinner teaches us that the Fourth Amendment does not proscribe all searches, only those that are unreasonable, and the reasonableness of the search depends on the totality of the circumstances surrounding the search. The Court in Skinner stated:
Thus, the permissibility of a particular practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.
The Court in Skinner held:
In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.
Important governmental interests have previously been identified by this Commission in Jefferson v. Muncey Products,supra. See also, Ester, supra. There is a legitimate state purpose in providing a safe workplace, as well as protecting employees (and their fellow employees) and ensuring the payment only of claims that are legitimate and causally related to employment. In our opinion, when these interests are weighed against the minimal privacy interests of taking a urine specimen from a catheter bag, we cannot find that the evidence in this case shows the implied consent provision to be unconstitutional. The holdings in Skinner, Mercer, and Schmerber in our opinion, support the constitutionality of the implied consent provision.
Since we find that the claimant failed to demonstrate that the implied consent provision violates the Fourth and Fourteenth Amendments of the United States Constitution, and as we find that the governmental interests outweigh the minimal intrusion, we find it unnecessary to address whether there was state action in this case. Arguably, there was no state action since all parties involved in the drug testing procedure were individual private parties. The Fourth Amendment does not apply to private, individual actions.
Accordingly, for those reasons stated herein, we find that the decision of the Administrative Law Judge must be and hereby is affirmed in part, reversed in part and vacated in part.
IT IS SO ORDERED.
CONCURRING OPINION
[29] I concur in each of the findings of the principal opinion. I write separately only to express my thoughts on various aspects of the constitutional and statutory issues raised at various stages in this case.In my opinion, by failing to object to the introduction into evidence of the drug testing results now at issue in this case (and in fact offering those test results into evidence herself), the claimant waived any right that she might otherwise have had to raise the issues of (1) whether the test procedure used was "reasonable and responsible" as a matter of statutory construction (see the concurring and dissenting opinion), and (2) whether the urine specimen collection procedure obtained under the authority of the "implied consent" provision impinged on her Fourth Amendment protection from unreasonable search and seizure (See Commissioner Wilson's opinion and order). In addition, I concur in the findings of both the principal opinion and the concurring and dissenting opinion that the administrative law judge also improperly raised the Fourth Amendment issue sua sponte after the hearing in this case.
To the extent that the dissent asserts that the sequence of events involved in collecting a urine specimen in this case did not qualify as "reasonable and responsible" testing, I note that the Courts have not yet specifically defined any parameters on that term which would appear to be controlling in this case. As I interpret the dissent's argument, the dissent is asserting that the urine specimen collected in this case was not collected in a "reasonable and responsible" manner when the urine sample was collected from a catheter bag at a time when the claimant was allegedly not capable of giving informed consent to a urine sample being withdrawn from a catheter bag. To the extent that the dissent seems to assert that the General Assembly intended that "reasonable and responsible" testing requires informed consent on the part of the patient, I simply note that the same sentence of Act 796 which provides for "reasonable and responsible" testing also provides for "implied consent":
Every employee is deemed by his performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee's body. [Emphasis added].
Ark. Code Ann. § 11-9-102(5)(B)(iv)(c) (Supp. 1997).
I believe that the General Assembly specifically envisioned a situation in drafting this provision where an injured employee would not be medically capable of providing "informed consent", and intended to make it clear that medical and law enforcement personnel could proceed with sample collection and testing without waiting to first obtain "informed consent" from the injured employee. Compare, Mercer v. State, 256 Ark. 814, 510 S.W.2d 539 (1974).
With regard to the issue of whether urine specimen collection from a catheter bag is "reasonable and responsible testing" in general (as opposed to the dissent's specific objection regardingwhen the specimen was collected in this case), I do not perceive any evidence from the record indicating that collecting a urine specimen from a catheter bag is any less reliable or would lead to less accurate analytical results as compared to a urine sample collected in a cup or in a sample bottle. Therefore, for the reasons discussed herein, I conclude that the circumstances and nature of the specimen collection procedures at issue in this case fall within the meaning of "reasonable and responsible testing" as that term was intended in Ark. Code Ann. § 11-9-102(5)(B)(iv)(c) (Supp. 1997).
To the extent that how the urine specimen in this case was collected might bear on a Fourth Amendment analysis, I perceive that collecting a urine specimen from a catheter bag is the least intrusive means possible for collecting a urine specimen for a patient who is medically incapacitated from providing informed consent. However, since I concur in the principal opinion's conclusion that the greater weight of the credible evidence in this case indicates that the claimant did in fact provide verbal consent to Ms. Oldner, I believe that this is yet another ground for finding that the Fourth Amendment issue in this case was not properly raised and preserved.
ELDON F. COFFMAN, Chairman
CONCURRING AND DISSENTING OPINION
[39] I have long felt that Ark. Code Ann. § 11-9-102(5)(B)(iv) (Supp. 1997) is far more capable of producing harsh results than of accomplishing its apparent goal of reducing drug and alcohol usage in the workplace. After all, the statute offers no distinction between those who actually are intoxicated at work and those who may have been at a remote point in time but still retain some ethereal "metabolite" or "break-down" product in their system. It has always seemed to me that metabolic traces, if anything, are an indication that a substance has been processed by the body and reduced to a waste product far removed from its impairment-causing phase. Nevertheless, such traces are now a well-established means of raising the presumption of Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) (Supp. 1997), e.g., that an accident was "substantially occasioned" by some kind of intoxicant.But despite my concerns with the statute as a whole, I feel compelled to concur with the majority's findings regarding its constitutionality in this claim. To begin with, prior case law makes it relatively clear that subsection (5)(B)(iv)(b) does not violate the equal protection or due process clauses of the United States Constitution. See Andre Jefferson v. Continental Loss Adjusting, Full Workers' Compensation Commission, Opinion Filed April 11, 1997 (Claim No. E405575) and Ester v. Nat'l Home Centers, Inc., 61 Ark. App. ___, ___ S.W.2d ___ (1998).
Also, I cannot discern from my review of the record that claimant ever specifically raised any constitutional issues relating to search and seizure, and it appears that she only raised her due process and equal protection challenges at the close of her evidence. In my opinion, fairness requires that issues not be determined sua sponte by an Administrative Law Judge unless the parties have had an adequate opportunity to litigate or otherwise address those particular issues. Accordingly, I must concur with the majority's decision to vacate the Administrative Law Judge's finding that subsection (5)(B)(iv)(c) is unconstitutional.
However, I would find that the drug testing administered to claimant was patently unreasonable within the meaning of subsection (5)(B)(iv)(c) itself. Specifically, the statute provides that:
every employee is deemed by his performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee's body.
According to Ms. Sherry Ann Oldner, Chief Nursing Officer for Delta Memorial Hospital in Dumas, claimant arrived in the emergency room at 8:50 a.m., and shortly afterward received implementation of a Foley catheter. At 9:30 a.m., hospital personnel obtained a urine specimen from the catheter bag and then a blood sample at 9:45 a.m. However, Nurse Oldner acknowledged that claimant had been unable to sign a consent form due to the trauma she had sustained: "That's correct. She was in a terrific amount of pain, and her arm was so malformed that there is no way that she could sign." While Nurse Oldner recalled that claimant was coherent, had been informed that samples would be drawn, and had given consent, it is important to note that Nurse Oldner qualified most of these recollections with phrases such as "to the best of my knowledge," and "the best that I can remember." Even more significant is the fact that claimant had received substantial medication by the time hospital personnel took the samples in question:
Q. Was she prescribed any medication at the time that she presented to the hospital at 8:50 on March 1st of 1996?
A. Yes. She had had some Demerol for pain. She received a hundred (100) of Demerol at 9:05 and Versed 2 milligrams at 9:20, so she had been . . . she had had some sedation.
Even though subsection (5)(B)(iv)(c) contemplates implied consent, we have clearly observed on prior occasions that a claimant can essentially refuse consent altogether — albeit with the significant consequence of raising the presumption of subsection (5)(B)(iv)(b). See, generally, Rebecca L. Davis v. Your Employment Service, Full Workers' Compensation Commission, Opinion Filed December 5, 1996 (Claim No. E415603). In the instant case, claimant may have never even had that chance, as she had been under the influence of substantial pre-operative sedation for nearly one-half hour before the first samples were taken. Furthermore, even Nurse Oldner described claimant's pain as "terrific," which one suspects would be less than conducive to informed decision-making. Simply put, the extraction of blood and urine specimens under these circumstances has an ominous appearance, especially in light of the primacy it appears to have received during the course of claimant's initial care:
Yes, ma'am. The best that I can remember, she did, because it was very important for Binkley to have that specimen, and we knew that she was unable to sign, and I did advise her that I was going to be getting that for testing purposes. (From Nurse Oldner's testimony; emphasis added.)
In claimant's altered condition, she might very well have assented to anything that hospital personnel proposed. I simply cannot conclude that such testing is either reasonable or responsible, and would find that the drug tests in question should accordingly be excluded from evidence. Also, given the remaining facts in this case, I would find that claimant clearly sustained a compensable injury within the meaning of Ark. Code Ann. § 11-9-102(5)(A)(i) (Supp. 1997), and must respectfully dissent from the majority's finding to the contrary.
As set out above, I concur in part and respectfully dissent in part from the majority opinion.
PAT WEST HUMPHREY, Commissioner