Opinion
CLAIM NO. F203513
OPINION FILED JUNE 25, 2003
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by HONORABLE JOHN C. BARTTELT, Attorney at Law, Jonesboro, Arkansas.
Respondents represented by HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas.
Decision of the Administrative Law Judge: Affirmed.
OPINION AND ORDER
The respondents appeal an opinion and order filed by the Administrative Law Judge on December 3, 2002. In that opinion and order, the Administrative Law Judge found in relevant part that the preponderance of the evidence establishes that the claimant's injury was caused by the claimant's simply standing in an unfortunate location when a structurally deficient rack failed, striking and injuring the claimant. In light of the testimony of the claimant, in light of the testimony of co-worker Shannon Dawes, and in light of the nature of the accident itself, the Administrative Law Judge concluded that the claimant's unavoidable accident and subsequent injury were in no way occasioned by the use of illegal drugs. After conducting a de novo review of the entire record, we find that the accident which injured the claimant was caused by a defective pipe rack and by a dangerous standard operating procedure for transporting pipe by forklift to the rack. Therefore, we affirm the Administrative Law Judge's finding that the claimant has established by a preponderance of the evidence that neither the accident at issue nor his injuries resulting from that accident were substantially occasioned by the use of illegal drugs.
The claimant resides in Doniphan, Missouri, and during the period at issue, worked as a welder for American Railcar in Marmaduke, Arkansas. The claimant would normally get up at 3:30 a.m. in order to leave at 4:00 a.m. and get to Marmaduke after 5:00 a.m.
On March 27, 2002, the claimant clocked in at approximately 5:30 a.m. and began welding fittings onto pipe in the pipe shop. However, the welders in the pipe shop ran out of pipe, so at approximately 6:30 a.m. a forklift operator, Treda White, delivered a bundle of 40 pipe to the shop. Each pipe was 21 feet long and 1 1/4 inches in diameter, with a cumulative weight of approximately 1000 pounds.
As Ms. White approached the pipe rack with the bundle of pipe loaded on the forklift, the bundle shifted. Another welding shop co-worker, Shannon Dawes, reached up and adjusted the bundle. Ms. White then moved the bundle over the five-foot tall pipe rack, and adjusted the forks downward to drop the bundle onto the pipe rack. Unfortunately, the pipe did not drop straight down onto the rack as planned. Instead, one end dropped before the other, and the pipe fell askew across the rack. Mr. Dawes was injured attempting to retreat up onto an adjacent pipe rack. The claimant was injured when a weld in the affected rack gave way as the pipe fell, striking the claimant in the upper body as the claimant stood near the rack.
The claimant subsequently provided a urine specimen for drug screening. The claimant's urine tested positive for the presence of marijuana metabolites. Thereafter, the respondents took the position that the claimant's involvement in the accident was substantially occasioned by his use of marijuana.
Because the claimant's urine tested positive for marijuana metabolites, the claimant must overcome the rebuttable presumption set forth in Ark. Code Ann. § 11-9-102(4)(B)(iv) (Repl. 2002) which provides:
"Compensable injury" does not include:
. . . .
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders.
(c) 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.
(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician's orders did not substantially occasion the injury or accident.
As discussed above, in the present case, the claimant's urine sample collected on March 27, 2002 tested positive for the presence of marijuana metabolites. The presence of marijuana metabolites in the claimant's urine collected several hours after the incident at work is sufficient to raise the presumption that the claimant's injury or accident was substantially occasioned by the use of illegal drugs. See Graham v. Turnage Employment Group, 60 Ark. App., 960 S.W.2d 453 (1998), petition for review denied 334 Ark. 32, 970 S.W.2d 808 (1998). The claimant therefore has the burden of proving by a preponderance of the evidence in the record that the accident and his injuries were not substantially occasioned by his use of marijuana.
With regard to the potential significance of the presence of marijuana metabolites in the claimant's urine, Dr. Henry Simmons explained that the acute effects of smoking marijuana last for several hours and include appreciable impairment of certain skills including the ability to concentrate, time sense, motor coordination, eye-tracking skills, and perceptual functions. The fact that the screen was positive (i.e., in excess of 50 ng/ml of marijuana metabolites in urine) means that the claimant consumed a pharmacologically significant amount of marijuana at some point in the past. However, Dr. Simmons explained that marijuana metabolites can remain present in the body for days or even weeks after consumption. Dr. Simmons testified that the circumstances surrounding the claimant's injury, by failing to get out of the way in time to avoid injury when the rack came apart, is consistent with impairment caused by marijuana. However, Dr. Simmons also indicated that urine testing for marijuana metabolites does not indicate whether or not the test subject was impaired or intoxicated either at the time of the accident or at the time of testing. Therefore, the urine sample test results are also consistent with the claimant not being impaired when the rack broke.
As we understand the respondents' arguments in light of Dr. Simmons' testimony, the respondents apparently assert that the claimant consumed marijuana at some point after he awoke at approximately 3:30 a.m. on March 27, 2002, so that he was mentally impaired when the rack broke at approximately 6:30 a.m. The respondents argue alternatively that marijuana-induced mental impairment caused the claimant to stand too close to the rack before the accident and/or caused the claimant to react too slowly to avoid injury after the rack broke. There are, of course, several problems with the respondents' argument.
First, there is simply no evidence in the record indicating that the claimant consumed marijuana on March 27, 2003 after he woke up at 3:30 a.m., nor is there any evidence that he exhibited any indications of intoxication or the impairing effects described by Dr. Simmons prior to the accident at 6:30 a.m. In fact, the Administrative Law Judge, who heard the live testimony and observed the demeanor of the witnesses, found credible the claimant's testimony that he did not smoke marijuana on the morning of March 27, 2003, and did not smoke marijuana the night before. Furthermore, the Administrative Law Judge obviously also found credible the testimony of Mr. Dawes that the claimant appeared normal on the date of the accident after the claimant arrived at work.
Second, the respondents seem to suggest that the claimant was standing too close to the operation of setting pipe into the pipe rack with a forklift, and that the claimant's close proximity to the operation was itself indicative of impaired judgment. The threshold problem with this argument is that co-worker Dawes was standing even closer to the pipe and the rack than the claimant was, and there was also no evidence that Mr. Dawes was intoxicated or impaired. Notably, when the load of pipe began to lean on the forklift at one point, Mr. Dawes reached up and adjusted the pipe. At that point, Mr. Dawes assessed that any problem with the pipe being twisted on the forklift had been taken care of. Moreover, there is no credible evidence that the claimant was in any way violating any established company safety policy or in any way engaged in conduct indicative of impaired judgment, as compared to the judgment of Mr. Dawes, when the claimant stood nearby and waited for the pipe transfer operation to be completed. Instead, as the Administrative Law Judge has also noted, the claimant was simply an innocent bystander to the operation, as was Mr. Dawes, when the defective pipe rack broke during a routine transfer operation that went awry.
The respondents suggest that impaired cognitive functioning prevented the claimant from avoiding injury when the load of pipe ultimately fell askew on the rack, breaking the rack. Likewise, the dissenting Commissioner argues that the claimant's testimony regarding his smoking frequency is inconsistent with the opinions of Dr. Simmons. On that basis, the dissent asserts that the claimant was not a credible witness and that the claimant's injuries were therefore substantially caused by illegal drugs. As a threshold matter, on this record, we agree with the Administrative Law Judge's assessment that the events unfolded so rapidly when the rack broke that the claimant's injuries appear inevitable, regardless of whether or not his normal reaction time might have been impaired. We note that Mr. Dawes was also taken by surprise and also was injured in the accident. We note that transferring pipe to the pipe rack in the respondents' facility for the employees to weld was not an uncommon event, and the plant had no prior history of the pipe rack breaking during pipe transfer. Furthermore, we do not see the substantial disagreement between Dr. Simmons' "body burden" testimony and the claimant's testimony that the dissent suggests. In this regard, the dissent quotes Dr. Simmons' testimony that a body burden of THC metabolites is established by smoking marijuana at least once per week (i.e., approximately four times per month). In the present case, the claimant testified that he recalled smoking approximately two to three times per month during the period before his injuries. Therefore, the claimant's estimation of his general smoking pattern actually deviates very little from what Dr. Simmons estimated as the inhalation pattern that would produce a detectible body burden for days or weeks.
In summary, the evidence, and lack of evidence, which persuades us that neither the accident nor the claimant's injuries were substantially occasioned by marijuana use includes (1) the time of day that the injury occurred, (2) the relatively short time period that marijuana causes impairing effects, (3) Mr. Dawes' testimony that the claimant appeared normal that morning, (4) the claimant's testimony, which the Administrative Law Judge found credible, that he did not smoke marijuana that morning, (5) the lack of any credible evidence that the claimant was violating any company safety policy or safety warning at the time the accident occurred, (6) the fact that Mr. Dawes was also caught unaware and was injured in the accident, (7) the lack of any history of pipe racks breaking during pipe transfer, and (8) the sudden onset and short duration of the accident which caused the claimant's and Mr. Dawes' injuries. Therefore, 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. 2002). For prevailing on this appeal before the Full Commission, claimant's attorney is hereby awarded an additional attorney's fee in the amount of $500.00 in accordance with Ark. Code Ann. § 11-9-715(b) (Repl. 2002).
IT IS SO ORDERED.
______________________________ OLAN W. REEVES, Chairman
______________________________ SHELBY W. TURNER, Commissioner
Commissioner Yates dissents.
DISSENTING OPINION
I respectfully dissent from the majority's opinion finding that the claimant successfully rebutted the presumption that his injury was substantially occasioned by his use of illegal drugs. In my opinion, the claimant has failed to meet his burden of proof.
The majority agrees with the finding of the Administrative Law Judge that the claimant was a credible witness and cites the proposition that the findings of credibility on the Administrative Law Judge are affirmed because the Administrative Law Judge heard the live testimony and observed the demeanor of the witnesses and found this claimant's testimony to be credible that he did not smoke marijuana on the morning of March 27, 2003, and did not smoke marijuana the night before. The findings of the Administrative Law Judge on issue of credibility are not binding on the Commission. Roberts v. Leo-Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983), Linthicum v. Mar-Bax Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987). 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). When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and to determine the true facts. Arkansas Dept. of Health v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993). 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); Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).
In my opinion, the claimant is simply not a credible witness. The claimant testified that he smoked marijuana approximately two weeks prior to the incident. However, the claimant admitted in another version that he was around second-hand smoke in an enclosed room, but did not partake of the marijuana over the previous weekend. The claimant stated that his friends had smoked four "bowls" of marijuana the previous weekend. The claimant also admitted that he was a casual marijuana user, smoking two to three times per month. There was evidence that the claimant was also convicted of possession of marijuana at one point, even though he testified that he was not a frequent user, wherein he bought it. He stated that he only used when other people had it.
The respondents offered the testimony of Dr. Henry F. Simmons, a medical doctor and a Ph.D. in interdisciplinary toxicology. Dr. Simmons testified that if the claimant lacked a "body burden" there is no way he could have tested positive for marijuana metabolites on March 27, 2002, due to a single marijuana cigarette smoked on March 14, 2002, or the second-hand smoke over the previous weekend. Dr. Simmons testified and explained the concept of body burden.
Q. And how long — if you can, just kind of give me a brief description of what you meant when you said, body burden. And tell us how long, with respect to that, that THC can remain in a person's body at levels high enough to be able to be detected by this type of person.
A. Well, a person that smokes on a very regular, frequent basis could be positive for a period of weeks after the last use. On the other hand — and the reason is, is that THC is a very fat-soluble material. And when it's absorbed, either through ingestion or through inhalation, it's not immediately cleared from the body. It dissolves in the body fat and basically resides there. And it can take weeks for it to be cleared away. When people smoke on a regular basis, then it certainly is possible to be positive for several weeks at these cutoff levels after the last use.
On the other hand, if an individual does not smoke regularly, does not have a body burden, then he'd ordinarily be positive, say no more than one or two days after the last use, at these cutoff levels.
Q. Okay. Now, when you say, regular or frequent user, define that for me.
A. Oh, one or more times per week.
Dr. Simmons testified, in fact, that a heavy, chronic user, could test positive for weeks. Thus, the only way the "single" marijuana cigarette could be the explanation would be that the claimant smoked more than the confessed "two or three times per month", as testified to by the claimant.
Dr. Simmons also refuted the claimant's explanation that he had inhaled "second hand" smoke during the weekend preceding Wednesday, March 27, 2002. He explained:
Q. Dr. Simmons, there was also some testimony by Mr. Hanks of having been exposed to second hand smoke at a party at some point, maybe the week before the accident. Do you remember that testimony?
A. I do recall it. Yes, sir.
Q. Can second-hand inhalation of marijuana produce a positive drug screen a week or so later?
A. Only under extraordinary circumstances would passive inhalation lead to a positive at these cutoff levels. It could happen, but it takes phenomenal passive exposure.
Q. And what type of circumstances?
A. Well, we're talking about being exposed to the smoke of multiple cigarettes in a confined space.
Q. Such as in a pickup truck with the windows up?
A. That certainly is a plausible scenario, if a lot of smoking went on.
Q. Do you view Mr. Hanks' explanation, on its face, of having been around second-hand smoke in a casual setting he described as being capable of having produced this positive drug screen?
A. No, I would not think so.
Therefore, when I consider all the evidence, I cannot find that the claimant has rebutted the presumption that illegal drugs did not substantially cause the injuries the claimant sustained during the incident at work on March 27, 2002. Therefore, I must dissent from the majority's opinion.
_______________________________ JOE E. YATES, Commissioner