Opinion
CLAIM NO. E408568
OPINION FILED OCTOBER 13, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE BILL WIGGINS, Attorney at Law, Fort Smith, Arkansas.
Respondents represented by the HONORABLE JAMES A. ARNOLD, II, Attorney at Law, Fort Smith, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on March 6, 1995. In that opinion and order, the administrative law judge found that the claimant failed to rebut the presumption that his injury or accident was substantially occasioned by the use of illegal drugs. After conducting a de novo review of the entire record, we find that the administrative law judge's decision must be affirmed.
The respondent employer is a temporary employment agency, and the claimant was assigned by the respondent employer to work at Custom Fabrications as a welder. On May 17, 1994, after working at Custom Fabrication for approximately one week, the claimant sustained an injury to his finger. According to his testimony, he was cleaning slag out of the end of his welding nozzle with a pair of needle nose pliers when the gun slipped. As the welding gun slipped, the trigger hit the claimant, activating the welder and causing the wire that puts down the metal to shoot out and into the claimant's finger. Moreover, the claimant was sweaty and standing on his ground, and the inside of his finger was electrocuted. The claimant testified that he reported this incident to the employee at Custom Fabrication who is in charge of safety, and he testified that he might have reported it to his supervisor as well.
This incident occurred around noon, and the claimant worked the remainder of the day. However, after he got home, his finger started swelling and hurting. As a result, he showed the finger to personnel at Custom Fabrication the following day, and advised them that he would not be able to work. He was advised to contact the respondent employer, and the respondent employer referred him to Dr. Allen Beachy, a general practitioner. After examining the claimant's finger, Dr. Beachy referred him to Dr. R. Cole Goodman, a plastic surgeon. On May 18, 1994, Dr. Goodman surgically excised the burn wound.
A drug screen was performed on the claimant on May 18, 1994, and this test revealed the presence of marijuana metabolites. In this regard, the claimant admits to smoking marijuana at a concert approximately two weeks before the accident, and he denies smoking any marijuana subsequently. The claimant also testified that he was required to pass a welding test prior to starting to work for Custom Fabricators, and he testified that he had not had any complaints about his work from Custom Fabricators. In addition, he returned to work at Custom Fabricators after he was released by Dr. Goodman, and he testified that Custom Fabricators has indicated its intent to hire him as a permanent employee.
Jan Haftel, an employee of the respondent employer, testified that she assigned the claimant to Custom Fabricators. Thus, she had the opportunity to observe the claimant approximately two weeks before the accident and after the concert where he allegedly last smoked marijuana, and she testified that he did not appear to be under the influence of drugs at that time. Robin Page, an employee of the respondent employer who is responsible for worker's compensation claims, testified that she did not see the claimant personally on May 17, 1994, the date of the accident. However, she testified that she saw him on May 18, 1994, after he had been to Dr. Beachy's office and the urine sample used for the drug screen had been taken, and she testified that the claimant told her at that time that the drug screen might be positive for marijuana because he had smoked the drug at a concert a few weeks previously.
Dr. Beachy and Dr. Goodman have both stated that the claimant did not appear to be impaired at the time they examined him on May 18, 1994. In addition, Dr. Goodman has indicated he obtained information regarding drug screens from a Dr. Rebecca Fleck, and he indicated that he learned that a drug screen can be positive for marijuana up to four to six weeks following ingestion. In addition, Dr. Goodman indicated that he learned that a positive result is usually considered to be greater than 50 mcgs, and the screen performed on the claimant showed the presence of 30 ng/ml.
Since the claimant's injury occurred after July 1, 1993, this claim is governed by the Arkansas Workers' Compensation Law as amended by Act 796 of 1993. Even under the law that existed prior to the 1993 amendments, injuries which were substantially occasioned by the intoxication of the employee were not compensable. Ark. Code Ann. § 11-9-401 (a)(2) (1987). However, under the law in effect prior to the effective date of Act 796, there was a prima facie presumption that the injury did not result from the intoxication of the employee while on duty. Ark. Code Ann. § 11-9-707 (4) (1987). Thus, under the prior law, employers had the burden of showing that the employee was intoxicated and that the injury was substantially occasioned by this intoxication.
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 the 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 rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders. Ark. Code Ann. § 11-9-102 (5)(B)(iv) (Cumm. Supp. 1993). 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."
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); 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 interests of justice." Id.
In the present claim, we note that we are concerned with the cause of the events that occurred on May 17, 1994, and the only evidence presented which pertains to those events is found in the testimony of the claimant himself. The statements of individuals who observed the claimant on days other than the date of the accident simply are not sufficient to support a conclusion that the claimant was not impaired at the time of the accident. In addition, the fact that a drug screen may be positive for marijuana 4 to 6 weeks after ingestion does not support a conclusion that the claimant had not ingested marijuana on the date of the accident. The evidence does not show any way to determine when the marijuana was ingested from the drug screen. Likewise, the fact that 50 mcgs is generally used as the level necessary to confirm the presence of marijuana metabolites does nothing to show the impairing effects of 30 ng/ml. The evidence does not show any way to determine when the marijuana was ingested from the drug screen.
Thus, the only evidence pertaining to the occurrence of the accident or the claimant's condition on May 17, 1994, is found in the testimony of the claimant himself. With regard to the effect of the testimony of an interested party on a presumption, the Arkansas Supreme Court made the following statements in Dunn, supra (quoting 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 interests of justice. If dissipation by a bare denial from an interested witness seems to accord too trifling an effect to a presumption, the court would seem justified to require more before the presumption is rebutted.
Thus, the question of whether the testimony of an interested party is sufficient to rebut the presumption remains a question for the trier of fact. See also, Ross, supra. 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; Phelps v. Partee, 208 Ark. 212 185 S.W.2d 705 (1945).
In the present claim, the evidence shows that marijuana was present in the claimant at the time of the injury. Thus, we must begin with the presumption that the claimant's injury was substantially occasioned by the drug. In considering the weight of the evidence necessary to rebut this presumption, we note that this presumption reflects the strong public policy against the use of drugs in the work place and the strong public policy against the payment of workers' compensation benefits where the cause of the injury is something other than the employment. We also find that the claimant's credibility is diminished by the fact that he lied to the respondent employer about his past criminal record. Moreover, we note that no evidence was presented to corroborate the claimant's testimony regarding his condition on May 17, 1994, or with regard to the nature of the accident. In this regard, the claimant testified that other employees had been involved in similar accidents, although none had been electrocuted because they were not standing on their ground. However, again no testimony or other evidence was presented to corroborate the claimant's testimony in this regard. Therefore, after giving the claimant's testimony the weight that it is entitled to receive, we find that he failed to rebut by a preponderance of the evidence the presumption that his injury was substantially occasioned by the use of illegal drugs.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant did not sustain a compensable injury. Therefore, we find that the administrative law judge's decision must be, and hereby is affirmed. This claim is denied and dismissed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.