Opinion
CLAIM NO. E503128
OPINION FILED JUNE 11, 1997
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas.
Respondents represented by CAROL WORLEY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed in part and reversed in part.
OPINION AND ORDER
The Administrative Law Judge in this case held that the respondent failed to properly authenticate the drug test in question, that the claimant sustained a compensable injury, and that the claimant failed to prove entitlement to temporary total disability benefits. We affirm the decision of the Administrative Law Judge in part and reverse in part. Based on our de novo review of the record, we hold that the drug screen results were properly excluded from evidence, and the claimant did sustain a compensable injury. However, we hold that the claimant was entitled to temporary total disability benefits, and the Administrative Law Judge's decision denying these benefits should be reversed.
The evidence presented in this case indicated that the claimant had been employed by the respondent for five years as a truck driver at the time of the motor vehicle accident in question. The claimant testified that on February 16, 1995, he left Little Rock and arrived in Memphis at approximately 11:15 a.m. The weather on that date was rainy and foggy as the claimant was driving in Memphis. The claimant testified that as he was approaching an intersection with a traffic light the vehicle in front of him stopped "all at once, and [he] didn't have time to pull over because traffic was on the side of [him]. . . ." The claimant hit the rear end of the vehicle in front of him due to his belief that that vehicle was going to make it through the intersection before the light turned red, not anticipating the stop. The claimant testified that due to the wet road he slid and was unable to stop.
After the accident, the claimant contacted the terminal manager in Memphis who took the claimant to a hospital. Several hours after the accident the claimant was asked to provide a urine specimen for the purposes of performing a drug screen. The claimant consented to the test, provided the sample, and signed the drug testing form provided.
At the hearing below, the claimant objected to the introduction of the documents pertaining to the drug screens collection, shipment, and the test results on the basis that the documents in question were hearsay and lacked proper authentication. Over the respondent's arguments, the Administrative Law Judge ruled that the drug screen documents were inadmissible based on her finding that the respondent failed to present any testimony at all to authenticate the documents, a chain of custody was not established, and respondent failed to present any proof that the specimen was properly sealed. We agree with the Administrative Law Judge's finding.
While Ark. Code Ann. § 11-9-102 (5) (B) (ii) (Repl. 1996), states that a positive drug test creates a presumption that the accident was substantially occasioned by the use of illegal drugs, that section also states that the testing must be performed in a reasonable and responsible manner. While the Arkansas Supreme Court has stated that strict compliance with the Department of Health regulations is not necessary for admitting a drug test in workers' compensation cases, the Commission still has discretion to "conduct the hearing in a manner as will best ascertain the rights of the parties." St. Paul Insurance Co. v. Tonzin, 267 Ar. 539, 592 S.W.2d 447 (1980). The court in St. Paul, also held that the right to cross-examination was a basic right of fair play that the claimant must be afforded.
Davis v. C M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982), is cited for the argument that not every step of the chain of custody must be filled in order for such test to be properly admitted. The Davis case is easily distinguished from the present case. In Davis there was at least one witness who testified about the blood alcohol test and how the sample was taken. The court in Davis also found it very significant that the claimant was afforded the right to cross-examine any person connected to the blood test but elected not to do so. In the present case the respondent offered not a single witness to discuss how, when, or where the drug screen was taken, how the test was administered, or how the results were arrived at. The respondent did not offer a single witness to discuss the chain of custody of this evidence, and they did not produce a single witness to authenticate the documents in question. The respondent also did not offer any other testimony or evidence to support their intoxication defense, relying solely on the inadmissible drug test.
While the respondent argues that the claimant did not raise these objections until the day prior to the hearing, a thorough reading of the record reveals otherwise. At the hearing, the respondent's attorney, Mr. Tilley, admitted he had prior notice of the claimant's objections to the drug screen, making the following statements which clearly indicate the respondent had more than one days notice, stating:
MR. TILLEY [respondent's attorney]: talked to Gary yesterday, Your Honor, and we talked very candidly or frankly yesterday that he was objecting to the introduction of the evidence. I think that maybe Gary and Carol had talked previously about whether he would stipulate to the introduction of the evidence or records, and I believe he has indicated previously that he would not.
JUDGE HARRISON: All right. So your office has had notice that he was going to raise an objection to the authenticity of the records?
MR. TILLEY: Yes.
The Administrative Law Judge even offered the respondent's attorney a continuance "in order to bring in witnesses to present a foundation. . . ." The respondent failed to seek the continuance and simply allowed the Administrative Law Judge to take the issue under advisement.
In the present case, the claimant gave notice of his intent to challenge the admission of the drug screen results. Respondent did not present a single witness at the hearing to authenticate the documents, testify as to the taking of the specimen, or anyone to testify about how the results were arrived at and properly verified. The claimant was not afforded the basic right to cross-examine anyone concerning anything involving the drug screen. Also, in the interest of "fair play," the respondent was even offered a continuance to produce witnesses to lay a proper foundation for the evidences introduction, and also to give the claimant his essential right to cross-examine such witnesses. The respondent chose not to seek the continuance and the claimant's fundamental rights should not be jeopardized as a result.
The documents, which were presented without any authentication or witnesses, also failed to indicate any chain of custody and whether or not the specimen had been sealed. As the Administrative Law Judge correctly points out, in Southwest Pipe Supply v. Hoover, 13 Ark. App. 144, 680 S.W.2d 723 (1984), the Court of Appeals affirmed the Commission's exclusion of the test results due to the specimen not being sealed, raising questions as to the specimen's purity and doubts as to the reliability of the test results. In the present case, without any proof that the specimen was sealed (that question being unanswered on the form in question), and because no witnesses were offered by the respondent to verify any aspect of the testing, or to allow the claimant his right to cross-examination, we hold that the test was properly excluded, as there was no proof the test was reasonably performed and reliable. We affirm this aspect of the Administrative Law Judge's opinion.
However, we reverse the Administrative Law Judge's finding that the claimant was not entitled to any temporary total disability benefits. The Arkansas Court of Appeals and this Commission have consistently held that in order to be entitled to temporary total disability benefits, the claimant must prove that he remained within his healing period and totally incapacitated from earning. Palazzolo v. Nelms Chevrolet, 46 Ark. App. 130, 877 S.W.2d 938 (1994);Larry Graham v. Chamber Door Industries, Inc., Full Workers' Compensation Commission, January 9, 1997 (Claim No. E400258.) The "healing period" is defined as that period necessary for the healing of an injury that continues until the employee is as far restored as the permanent character of the injury will permit. Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). The healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. Arkansas Highway Transp. Dep't v. McWilliams, 41 Ark. App. 1, 7, 846 S.W.2d 670, 674 (1993). The Commission has the duty of weighing the medical evidence, and the resolution of any conflict is a question of fact for the Commission. Foxx v. American Transp., 54 Ark. App. 115, 924 S.W.2d 814 (1996). The determination of when a claimant's healing period has ended is a factual determination for the Commission. Carroll Gen. Hosp. v. Green, supra.
In the present case, the claimant testified that after the accident he was in significant pain and was unable to perform his job duties. We find that the claimant's testimony was extremely credible. The objective findings indicated the claimant had bulging discs at L3-4 and L4-5, testing taken after he was released to return to work. The medical evidence also indicates that the claimant continued to require recuperative treatment after he resigned his employment with the respondent. The claimant's testimony that he was unable to work and the objective medical findings indicate that he remained temporarily totally disabled and was entitled to benefits as he remained within his healing period. Accordingly, we find that the claimant is entitled to temporary total disability benefits from February 16, 1995, until a date yet to be determined.
Therefore, we affirm the decision of the Administrative Law Judge in part and reverse in part.
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 Commission, the claimant's attorney is hereby awarded an additional attorney's fee in the amount of $250.00 as provided by Ark. Code Ann. § 11-9-715 (b) (Repl. 1996).
IT IS SO ORDERED
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that claimant's drug screen results were not admissible and finding that the claimant sustained a compensable injury. Based upon my de novo review of the entire record, I find that the Administrative Law Judge erred in not allowing the drug screen results into evidence. In my opinion, the drug screen results are admissible and clearly operate to bar claimant's entitlement to benefits.
Following the collision, claimant called the terminal manager in Memphis who came to the accident site. The terminal manager immediately took claimant to the hospital. Upon arriving at the hospital, claimant was asked to provide a urine sample. After providing the urine sample and being examined by medical personnel, claimant was taken to a local motel for the evening.
At the onset of the hearing, respondent moved to introduce numerous documents consisting of the drug screen results and correspondence authenticating the results. Claimant's attorney objected on the basis that the results were not medical records and that respondent has not provided the appropriate information with respect to the foundation to introduce the documents. In her opinion filed August 19, 1996, the Administrative Law Judge held that the drug screen results were not admissible stating:
In the instant case, the respondents were given notice by claimant's attorney that the documents outlining the collection and chain of custody methods would be challenged. These documents were not written or signed by any physician. Respondents failed to produce testimony authenticating these documents. Such testimony would have been subject to cross-examination by claimant's attorney, as required by Commission Rule 20.
Commission Rule 20 states in pertinent part:
In the event a written report of a physician, osteopath, or chiropractor is offered in evidence and the right of cross-examination is requested, it will be granted. The party offering the report must produce the author of the report for cross-examination, but the attendance fee or charge of the witness is the liability of the party requesting cross-examination. In other types of written reports or evidence, the party offering the report shall, at his expense, produce the author of the report for cross-examination.
Moreover, Ark. Code Ann. § 11-9-705 (c) (2) (A) states:
Any party proposing to introduce medical reports or testimony of physicians at the hearing of a controverted claim shall, as a condition precedent to the right to do so, furnish to the opposing party and to the Commission copies of the written reports of the physicians of their findings and opinions at least seven days prior to the date of the hearing. However, if no written reports are available to a party, then the party shall, in lieu of furnishing the report, notify in writing the opposing party and the Commission of the name and address of the physicians proposed to be used as witnesses at least seven days prior to the hearing and the substance of their anticipated testimony.
Subsection (B) states:
If the opposing party desires to cross-examination the physician, he should notify the party who submits a medical report to him as soon as practicable, in order that he may make every effort to have the physician present for the hearing.'
It is my opinion that the Administrative Law Judge erred in failing to allow the drug test results into evidence. Respondent presented competent evidence regarding the identification measures and the authentication measures taken by the drug test laboratory. This evidence is found in the record as Respondent's Exhibit 3-10, correspondence from DSI Medical Services to the claimant's attorney. This correspondence states in pertinent part:
Additionally, the Certified Laboratory indicated the urine specimen and Chain-of-Custody documentation concerning the captioned individual (Drug Scan Specimen Identification No. 3597364; Drug Scan Accession No. 022222-5) were received in accordance with both NMFA (Article 35, Section 3, and federal DOT/DHHS guidelines, and there was no evidence of any post-collection tampering.
Claimant offered no evidence to dispute the authenticity of the drug screen results. There is no evidence that the identification numbers, accession number, or evidence itself was tampered with. The Administrative Law Judge apparently excluded the evidence based upon the fact that claimant's attorney had previously advised respondent's attorney of their objection to this evidence. A mere objection, without legal support is not a reason to exclude evidence. The record only shows that claimant advised respondent's attorney of his chain of custody and authentication objections on the day prior to the hearing. There is no evidence that claimant requested respondent to make appropriate chain-of-custody and authenticating witnesses available for cross-examination any sooner than the day before the hearing. Moreover, the fact that claimant's attorney may have voiced his thoughts that he did not think he could stipulate to the admissibility of the drug screen results is not the same as finally advising respondent the day before the hearing that he intended to object to the admissibility.
In my opinion, there is simply an insufficient basis in the record to support the Administrative Law Judge's finding. It is further my opinion that the drug screen test and related documents are medical records. Contrary to the claimant's argument that the drug screen results are not medical records and the Administrative Law Judge's finding that the results were not signed by a physician, the drug screen results clearly show the contrary. Respondent's Exhibit Number 2-9, the test results, was signed by Dr. F.P. Bonikowski. Furthermore, respondent presented evidence that the drugs were collected by Alice Jeter and identified as specimen number 3597364 on February 16, 1995. The document indicating the specimen number and the receipt by Alice Jeter is signed by claimant. The chain-of-custody documentation further shows that on February 17, 1995 the urine specimen with specimen number 3597364 was received although the signature is illegible. These medical records are competent evidence regarding the identification measures placed upon Mr. Bledsoe's urine sample and regarding the safeguards taken in assuring that the urine sample provided by Mr. Bledsoe was, in fact, Mr. Bledsoe's.
It has long been held, and our rules specifically state, that workers' compensation hearings are not governed by the strict rules of evidence and civil procedure. To now require the stringent chain-of-custody proof espoused by claimant and the Administrative Law Judge would be to negate our own rules.
In Davis v. C M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982), the Arkansas Court of Appeals held that the Commission properly admitted blood alcohol tests into evidence even though the only person subject to cross-examination was the physician who took the sample. The persons conducting the test and others involved in the chain of custody were cross-examined. The Court observed that the claimant was afforded the opportunity to cross-examine any person connected with the blood test but elected not to do so. Accordingly, the evidentiary foundation for such tests does not require the strict and stringent chain-of-custody and evidentiary foundations in workers' compensation hearings as in civil and criminal cases. All a party need to do to introduce such evidence is to allow the opposing party the opportunity to cross-examine the persons involved. If the opposing party does not request cross-examination, the opposing party has waived its objection.
In the present claim, there is no evidence that the claimant requested that persons be made available for cross-examination. At best, the record only shows that claimant objected to the authenticity of the documents on the day prior to the hearing but never requested to cross-examine anyone. In my opinion, an objection voiced on the day before the hearing accompanied by a request for cross-examination on the day before the hearing is insufficient to perfect an objection on the grounds that the person or persons were not made available for cross-examination. Accordingly, I find that the drug screen results are admissible.
Act 796 of 1993 made substantial changes in the law regarding this issue. 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. Act 796 changed the previous law to provide that every employee is deemed by his performance of services to have impliedly consented to testing for any of these substances in his body, and the presence of any of these substances creates a rebuttal presumption that the injury or accident was substantially occasioned by the use of Ark. Code Ann. § 11-9-102 (5) (B) (iv) (Repl. 1996). In addition, the amended law provides that:
. . . [a]n employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician's orders did not substantially occasion the injury or accident.
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.
The only evidence pertaining to the occurrence of the accident and the claimant's condition on February 16, 1996 is found in the testimony of the claimant himself and the testimony of claimant's co-worker, Hosea Williams, who testified that he had never known claimant to smoke marijuana. In my opinion, this evidence is insufficient to rebut the presumption. With regard to the effect of the testimony of an interested party on a presumption, the Arkansas Supreme Court made the following statements inDunn, 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.
Therefore, the question of whether the testimony of an interested party is sufficient to rebut the presumption remains a question for the trier of fact. However, in determining if the testimony of an interested party is entitled to sufficient weight to overcome the presumption in itself, it must be remembered that the testimony of interested parties is not to be treated as undisputed in determining the weight it is to be accorded.Ball, supra; Felts v. Parte, 208 Ark. 212, 185 S.W.2d 705 (1945). 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).
In the present claim, the evidence shows that marijuana was present in the claimant's system at the time of the injury. Therefore, the presumption arises that claimant's injury was substantially occasioned by the use of marijuana. Claimant's mere denial of having used marijuana on the date of the injury, or at anytime previously is not sufficient to constitute a preponderance of credible evidence to rebut the presumption. Claimant's mere testimony denying such use has previously been held to be insufficient to rebut the presumption. James Sanders v. CFSI Temporary Services, FC Opinion filed October 13, 1995 ( E408568).
In the present case, there was no corroborative testimony or other evidence regarding how the accident occurred. Claimant merely testified that the car in front of him had time to run a yellow light but refused, which caused claimant to slam on his breaks and skid into the rear of the car in front. Claimant's testimony that the car in front of him had ample time to run a yellow light, in my opinion, shows impaired judgment on claimant's part. It is his testimony that the car in front of him as well as he, himself, had time to cross a busy intersection in Memphis, Tennessee, after the light turned yellow. Apparently, the car in front of claimant did not agree since it did not run the yellow light. More importantly, a careful review of the transcript reveals that the car immediately in front of claimant's truck was not the only car that would have to run the yellow light in order for claimant to clear the intersection. Claimant testified that when he rear-ended the car in front of his, it pushed that car into the rear-end of the car in front of it. In my opinion, claimant's testimony that he could clear the intersection when he was the third vehicle back clearly illustrates claimant's impaired judgment at the time the accident occurred. In my opinion, had marijuana not been present in claimant's system, claimant's judgment in depth and distance perception might have been different.
Although claimant did submit evidence by way of Hosea Williams' testimony that Mr. Williams has never known the claimant to smoke marijuana, I find such evidence to be of little persuasive value. Mr. Williams testified that he does not socialize with the claimant and, in fact, only sees the claimant at work and speaks to the claimant on the telephone. What claimant does on his off time or when he is alone in his cab is unknown to Mr. Williams. Therefore, I find that Mr. Williams' testimony is not sufficient to rebut the presumption that the claimant's accident was substantially occasioned by the use of drugs.
Consequently, I find that the claimant has failed to rebut the presumption that the accident was substantially occasioned by the use of marijuana which was found in the claimant's body. Therefore, I find that the claimant's accident was substantially occasioned by the use of drugs and that this claim is not compensable. Therefore, I respectfully dissent from the majority opinion.
MIKE WILSON, Commissioner