Opinion
CLAIM NO. E405575
OPINION FILED SEPTEMBER 12, 1995
Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas.
Claimant represented by the HONORABLE SHEILA F. CAMPBELL, Attorney at Law, Little Rock, Arkansas.
Respondents represented by the HONORABLE RALPH R. WILSON, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Affirmed.
OPINION AND ORDER
The claimant appeals an opinion and order filed by the administrative law judge on December 9, 1994. In that opinion and order, the administrative law judge found that the claimant did not sustain a compensable injury because the accident was substantially occasioned by the claimant's 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 claimant was employed by the respondent employer as a die-cast machine operator. On April 6, 1994, he placed his hand in the machine to retrieve a push-bar which was jamming his machine, and his hand came into contact with the dye, resulting in the amputation of several fingers. The claimant described the accident as follows:
I was retrieving the push-bar back and my hand was about the same distance. When the first one started to come out, I took my thumb, my left thumb off the button and my right hand kept on going and mashed up against the dye.
The claimant testified that it was customary for him to insert his hand into the machine to remove the push-bar, and he testified that he had not been instructed not to do this by the respondent employer. According to the claimant, he was not pushing any buttons at the time, so the machine was not supposed to move. He also testified that the machine had malfunctioned in this manner on another occasion, and he testified that he had notified management of that malfunction. However, he also testified that the machine would close on his right hand when it was inside the machine if he inadvertently touched the controls with his left hand.
James Butler, also a die-cast machine operator for the respondent employer, testified that he had observed the claimant place his hand into the machine to catch the push-bar on several occasions. He also testified that he had seen other operators do this as well. In addition, Mr. Butler testified that the machine the claimant was using at the time of the accident had a history of problems.
Other evidence is contrary to the testimony of the claimant and Mr. Butler. Joe Conic, the claimant's supervisor testified that he was not aware of any problems with the claimant's machine. Mr. Conic also testified that it was not necessary for the claimant to use his hand to free a jammed machine because there is a safety rod that is inserted for this purpose. According to Mr. Conic, this safety rod is used to prevent injuries such as the one sustained by the claimant. Mr. Conic also testified that there was a safety rod available for use on the claimant's machine at the time of the injury. In addition, Mr. Conic testified that he had never seen the claimant use his hand to unjam the machine. Consistent with Mr. Conic's testimony, Melvin Lewis, a furnace attendant for the respondent employer, testified that he worked in close proximity to the claimant, and testified that he had never seen the claimant place his hand into the machine to retrieve a rod.
A drug screen was performed on a urine specimen which was taken from the claimant at Doctor's Hospital where he was taken after this accident, and this drug screen was positive for the presence of marijuana and cocaine. The claimant admitted that he had previously used drugs. In fact, he tested positive for marijuana and cocaine on another occasion after he was injured at work on December 14, 1993. He was suspended as a result of this positive drug screen, and he did not return to work until January 4, 1994, when a drug screen did not reveal the presence of any illegal drugs. In this regard, the claimant denied the use of any illegal drugs since the fall of 1993. However, Dr. Fred Leland McClure, a supervisor at SmithKline Beecham Laboratories in St. Louis, Missouri, where the claimant's urine specimen was sent for screening, testified with regard to the level of marijuana and cocaine that was found in the claimant's specimen. According to Dr. McClure, the levels found indicated that cocaine had been injected within the past two or three days at most and that he had used marijuana within four weeks at maximum. He also testified that it would not be possible for the claimant to have the levels of marijuana and cocaine that were found after having tested these drugs in January of 1994 without having ingested the drugs in the interim. Dr. McClure admitted that these tests do not indicate the degree of impairment. However, he also testified that cocaine is a central nervous system stimulant and that marijuana is a disassociative, potentially hallucinogenic drug which sometimes has sedative hypnotic properties.
Since the claimant contends that he sustained an injury after July 1, 1993, this claim is controlled by the Arkansas Workers' Compensation Law as amended by Act 796 of 1993. Under the amended law, injuries resulting from accidents that were substantially occasioned by the use of illegal drugs are excluded from the definition of compensable injury. Ark. Code Ann. § 11-9-102 (5)(B)(iv) (Cumm. Supp. 1993). In addition, under the amended law, the presence of illegal drugs creates a rebuttable presumption that the injury or accident was substantially occasioned by the use of the illegal drugs, and imposes on employees the duty to prove by a preponderance of the evidence that the illegal drugs did not substantially occasion the injury or accident.
In the present claim, the evidence clearly establishes that illegal drugs were present at the time of the accident. Furthermore, we find that the claimant failed to prove by a preponderance of the evidence that the injury or accident was not substantially occasioned by the illegal drugs. In this regard, we note that the claimant testified that he had not used any illegal drugs since the fall of 1993. However, this testimony is inconsistent with the unrebutted evidence regarding the presence of cocaine and marijuana. Therefore, we find that the claimant's credibility is questionable. Furthermore, although the claimant attempts to show that he was following the customary procedure when he placed his hand in the machine, the evidence in this regard is inconsistent, and the greater weight of the evidence does not show that this was the customary procedure. Likewise, although the claimant attempts to show that the machine malfunctioned, the greater weight of the evidence does not support this contention. Instead, the greater weight of the evidence establishes that the accident was caused by operator error. Therefore, we find that the claimant failed to rebut the presumption that the accident or injury was substantially occasioned by the illegal drugs.
In reaching this decision, we note that the claimant challenges the constitutionality of certain provisions of the Arkansas Workers' Compensation Law, as amended by Act 796. Although constitutional questions must be raised at the Commission level, those questions can only be decided by a court of law. International Paper Co. v. McBride, 12 Ark. App. 400, 678 S.W.2d 375 (1984); Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 375 (1984); Swafford v. Tyson Foods Inc., 2 Ark. App. 343, 621 S.W.2d 862 (1981). Therefore, we decline to address the constitutional questions raised by the claimant.
Accordingly, based on our de novo review of the entire record, and for the reasons discussed herein, we find that the claimant failed to prove by a preponderance of the evidence that he sustained a compensable injury, as that term is defined by the amended Arkansas Workers' Compensation Law. Therefore, we find that the administrative law judge's decision must be, and hereby is, affirmed.
IT IS SO ORDERED.
Commissioner Humphrey dissents.
CONCURRING OPINION
I respectfully concur from the majority's opinion finding that claimant has failed to prove by a preponderance of the credible evidence that he sustained a compensable injury on April 6, 1994.
Claimant sustained an injury to his hand on April 6, 1994. However, respondent controverted the claim in its entirety contending that claimant's injury was substantially occasioned by intoxication from illegal drugs.
A.C.A. § 11-9-102 (B)(iv) provides:
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 a physician order.
Immediately following the injury, Doctor's Hospital conducted an appropriate urinalysis which established the presence of cocaine and marijuana in claimant's urine at the time of the accident. The propriety of the drug test is not being questioned. The record is clear it was a valid, proper test. Because of the presence of the illegal drugs and pursuant to Arkansas law, the statutory presumption arises that claimant's injury was substantially occasioned by the illegal drugs. Claimant contends he overcame the statutory presumption that the illegal drugs substantially occasioned his injury. In the alternative, claimant contends that the "drug statute" is unconstitutional.
Based upon a de novo review of the record, it is clear that claimant failed to overcome the statutory presumption that his injury was substantially occasioned by the presence of illegal drugs.
Claimant contends that he successfully rebutted the presumption that his injury was substantially occasioned by the marijuana and cocaine found in his urine. However, his contention is not supported by a preponderance of the credible evidence.
On April 6, 1994, claimant attempted to clear a machine. During this attempt, claimant experienced an injury. A mechanical engineer, Mr. Schreve, testified that the machine did not malfunction. Rather, it is clear that the accident was caused completely by operator error.
Despite the accident being caused by operator error, claimant contends that he successfully rebutted the presumption that the accident was substantially occasioned by the illegal drugs in his system. It seems that claimant contends that since there is no eyewitness evidence that he was intoxicated when the incident occurred, the presumption is rebutted. However, even before our law contained the statutory presumption herein question, the Arkansas courts have stated that eyewitness testimony is not necessary. InBlevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (___?___), claimant's negligent behavior combined with the presence of intoxicants was sufficient to establish intoxication.
Claimant's credibility is minimal. Claimant had been discharged with drug abuse on prior occasions. Furthermore, he gave false testimony concerning his current drug use. Claimant testified that he had not ingested any drugs for a significant period of time prior to the accident which was proven untrue by other evidence.
It is difficult to imagine a situation in which a claimant with as much as stake as this one, would readily acknowledge that his illegal drug use substantially occasioned his injury. Thus, in my opinion, claimant's entire testimony is suspect.
As noted by our statute, the burden of proof on claimant is "a preponderance of the evidence". Arkansas case law offers some insight into the sufficiency of evidence necessary to rebut a presumption. The evidence needed to rebut a presumption must be positive, unequivocal, unmistakable and strong. For example, a presumption is present when a husband and wife purchase property. There is a presumption of a gift from the party furnishing the greater part of the consideration to the other party. This presumption requires clear, positive, unequivocal, unmistakable, strong and convincing evidence to rebut. Lyle v. Lyle, 15 Ark. App. 220, 691 S.W.2d 188 (1985). Furthermore, in Arkansas, a presumption exists concerning the Child Support Chart. It is presumed that the amount on the Child Support Chart is the reasonable amount to be paid. Although this presumption may be overcome, it is only overcome upon consideration of all relevant factors which include food, shelter, utilities, clothing, medical and educational expenses, accustomed standard of living, insurance, transportation and expenses. Jones v. Jones, 43 Ark. App. 7, 858 S.W.2d 130 (1993). Furthermore, there is a rebuttable presumption that a search without a warrant is an unreasonable search. Maurine v. State, 11 Ark. App. 119, 666 S.W.2d 720 (1984). A warrantless search can only be deemed reasonable under very specific circumstances. Consistently, a rebuttable presumption is used in wills, estates and trusts. In Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992), the courts specifically found that the rebuttable presumption of undue influence was not overcome when the only testimony that there was no undue influence exerted over the testator was offered by the beneficiary. This is similar to Igwe v. State, 312 Ark. App. 220, 849 S.W.2d 462 (1993). Igwe dealt with the criminal charge of "intent to deliver heroin". The court specifically noted that "the only evidence he presented bearing on the issue of (of intent) was his own testimony that he was a drug user, carried the heroin for his own use. . ." The court determined that claimant's testimony simply was not enough to rebut the presumption that due to the amount of heroin he had in his possession, claimant intended to deliver the drug. Also, in Arkansas, it is presumed that a child born to a married couple is the child of the husband. Brown v. Danley, 263, Ark. 480, 566 S.W.2d 385 (1978). Parents cannot "bastardize" a child born in wedlock by simply testifying to their own nonaccess to one another. Brown, Id. The General Assembly codified this common law presumption to protect the public interest. It is in the public's best interest to have legitimate children for economic and social reasons.
Again, the General Assembly found fit to create a presumption when attempting to increase workplace safety. When one considers the plain language of the statute, the intent of the General Assembly to increase workplace safety, and the case law, it is clear that although rebuttable, the presumption can only be overcome by claimant proving by a preponderance of positive, unequivocal and unmistakably strong evidence that the illegal drugs in his system did not substantially occasion the injury. Simply put, claimant's biased self-serving testimony is simply not sufficient.
When considering the aforementioned, it is clear that claimant has failed to rebut the presumption that his injury was substantially occasioned by the use of illegal drugs. Therefore, we affirm the decision of the Administrative Law Judge.
Furthermore, we note that claimant has raised the issue of the constitutionality of this provision of Act 796 of 1993. Although constitutional questions must be raised at the Commission level, those questions can only be decided by a court of law. International Paper Co. v. McBride, 12 Ark. App. 400, 678 S.W.2d 375 (1984); Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 541 S.W.2d 375 (1984); Swafford v. Tyson Foods Inc., 2 Ark. App. 343, 621 S.W.2d 862 (1981).
Claimant challenges the legitimacy of the drug testing statute maintaining that the introduction of urinalysis for the purpose of creating a rebuttable presumption that an accident was substantially occasioned by an illegal substance is irrational, arbitrary, and capricious and, thus, violates claimant's constitutional rights. In essence, claimant contends that placing the burden upon him to prove that the illegal substance did not substantially occasion the accident is irrational, capricious and arbitrary because the mere presence of an illegal drug bears no relationship to whether claimant is impaired or intoxicated. We do not find claimant's contention persuasive.
The law was specifically drafted to allow a claimant to rebut the presumption. Thus, when a claimant proves that his injury was not substantially occasioned by the presence of illegal drugs, alcohol, or prescription drugs used in contravention of a doctor's prescription, then claimant is entitled to workers' compensation benefits. A claimant is obviously in the best position to prove this. It is claimant's body and behavior that has been called in question when illegal drugs, etc., appears in an urinalysis, blood test or other drug screen. Thus, claimant is in a better position to rebut the presumption. ?
Claimant herein apparently contends that the application of the statute is or may be applied arbitrarily. However, such is not the case. A.C.A. § 11-9-102 is not voluntary. The law clearly states that the presence of alcohol, illegal drugs or prescription drugs used in contravention of physicians' orders shall create a rebuttal presumption. The "shall create" makes this an absolute law. When there is the presence of illegal drugs, alcohol, etc., the provisions of A.C.A. § 11-9-102 are invoked. Thus, every claimant who has a positive drug test has the burden of proving that the presence of the drugs, alcohol or prescription drugs used in contravention of the doctor's prescription did not substantially occasion his/her accident. Therefore, claimant's argument that the statute is arbitrary and capricious is incorrect.
Claimant complains that the statute is unconstitutional because the presumption of intoxication is based upon the mere presence of an illegal drug. Claimant contends that mere presence does not test impairment, and thus, violates due process. This is a sophisticated argument designed to circumvent the law and violate public policy. If this (or any other claimant in a similar situation) truly believes the ". . . mere presence of an illegal drug . . ." had nothing to do with his injury or that the accident was not substantially occasioned thereby then there are numerous types of expert witness proof available for claimant's use in rebutting this statutory presumption.
The law is drafted in a rational manner. This claim is the type of situation which concerned the General Assembly. Illegal drug use is something that must be eliminated from the work place! The safety of the entire working population is in jeopardy! One way to discourage this behavior is not to allow employees to be compensated for their injuries if they occurred while one was using illegal drugs, alcohol or prescription drugs used in contravention of a physician's orders. The most practical and rational means to accomplish the goal of the legislature while protecting the claimant is by establishing the rebuttal presumption based upon the presence of the intoxicants.
Furthermore, claimant's entire constitutional argument is premised on the presumption that there is a property interest in workers' compensation benefits. However, workers' compensation benefits, as we have stated, are not a recognizable property right. Claimant simply has a claim for a statutory entitlement. Claimant is merely an applicant for benefits rather than a recipient. The substantive right is the parent of procedure, not visa versa. Constitutionalizing every state procedural right would stand any due process analysis on its head. Shango v. Jurrick, 681 F.2d. 1091, 1101 (7th Cir.) (1982). Thus, there is not even a property right to merit the raising of constitutional issues.
As stated, we do not have the authority to rule on the constitutional issues. However, the aforementioned drug testing provision of the Arkansas Code is a significant improvement in our law. Clearly, the legislative intent was to increase safety in the workplace. Thus, we would do the entire Arkansas workforce an injustice if we agreed with claimant's constitutional argument.
Therefore, we affirm the decision of the Administrative Law Judge and include in our opinion the rational behind and the constitutionality of the drug testing procedure. Thus, I concur in the majority's opinion.
ALLYN C. TATUM, Commissioner