Opinion
CLAIM NO. E607373
OPINION FILED JANUARY 5, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ROBERT B. BUCKALEW and WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas.
Respondent represented by BETTY J. DEMORY, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
Respondent appeals from a decision of the Administrative Law Judge's opinion filed February 2, 1998, finding that claimant rebutted the statutory presumption that his injury was occasioned by the use of illegal drugs. Based upon our de novo review of the entire record, we find that claimant has failed to overcome this statutory presumption. Claimant did not cross appeal the finding of the Administrative Law Judge with regard to the constitutional issues raised at the hearing level. Therefore, these issues are not before us on appeal.
At the hearing held on November 14, 1997, claimant contended that he sustained a compensable injury on May 21, 1996, during the course and scope of his employment, and that he should be entitled to benefits associated therewith. Conversely, respondent contended that claimant's injury was barred by Ark. Code Ann. § 11-9-102(5)(B)(iv) which states that an injury substantially occasioned by the use of illegal drugs is not compensable. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with the respondent.
The evidence reflects that claimant sustained an injury to his left hand on May 21, 1996, when the plant manager, Bobby Godsby, turned on a saw. It is uncontroverted that a drug screen performed on claimant upon arriving at the hospital after the accident was positive for cannabinoids, with the confirmation test revealing 47 nanograms per mil of Carboxy THC. It is claimant's testimony that he last smoked marijuana some time after 10:30 p.m. on the evening prior to the injury. Claimant's injury occurred sometime between 5:30 and 6:00 p.m. on the evening of May 21, 1996.
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 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 rebuttal 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 order. Ark. Code Ann. § 11-9-102(5)(B)(iv) (Repl. 1996). In addition, the amended law provides that:
. . . 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.
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 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 an effort to overcome this statutory presumption that the injury was substantially occasioned by claimant's use of illegal drugs, claimant presented the testimony of Zane Allen, a co-worker. Mr. Allen testified that he had been working with the claimant on the day of the injury. At the time the injury occurred, Mr. Allen stated that although he was supposed to be running the rip saw, he was actually only ten feet away from the claimant and Mr. Godsby watching them repair the panel saw. It is Mr. Allen's testimony that he observed the claimant on his knees, apparently tightening a sprocket on the machine, when he overheard Mr. Godsby ask: "Are you ready?", to which claimant replied, "Hold on just a minute." At that point, according to Mr. Allen, Mr. Godsby, apparently misunderstanding the response, started the saw causing injury to claimant's hand. Mr. Allen further testified that he had a conversation with Mr. Godsby at the hospital after the injury in which Mr. Godsby admitted fault. Particularly, Mr. Allen testified that Mr. Godsby explained to him that he thought the claimant told him to "turn it on," and not, "hold on a minute."
On cross-examination, Mr. Allen acknowledged that he and the claimant routinely smoke marijuana together and that they had smoked marijuana on the evening prior to the injury.
Claimant testified that he had called Mr. Godsby to the plant after he and Mr. Allen were unsuccessful in repairing the panel saw. Claimant explained that he had put the chain back on the saw by himself and that Mr. Godsby was sitting beside him. Claimant stated he was on his knees and at least halfway under the machine in order to get to the sprocket and the chain. Claimant indicated that he had his left hand up under the machine to tighten the sprockets. Then claimant was asked:
Q. Did he ever give you a warning that he was going to turn on this machine?
A. I don't believe so. I did not hear it if he did. I had been told that he did.
MS. DEMORY: Objection, Your Honor, calls for hearsay.
JUDGE GREENBAUM: All right. Sustained.
Claimant further testified that after the injury, Mr. Godsby drove him to the hospital, and, while on the way to the hospital, Mr. Godsby "told me he was sorry, and I more or less cut him off right there, told him that I knew that it was an accident, I did not blame nobody, but just to please shut up, that I was — did not feel like talking about nothing." When asked about the accuracy of Mr. Allen's testimony, claimant stated "to my recollection, I am going to be perfectly honest, I really cannot remember much about that evening. I blocked a lot of stuff out at the time of the accident." With regard to claimant's memory, the following exchange took place:
Q. Okay. Now, actually, when Mr. Godsby told you that he was going to turn the machine on, you were standing up, were you not?
A. You could not stand up where I was at. There is no way.
Q. Okay. You had already finished with the machine, though, —
A. No, ma'am.
Q. — and you were standing off to the side of the machine, —
A. No, ma'am.
Q. — were you not?
A. No, ma'am, I was still underneath the machine tightening the chain around the sprocket.
Q. Okay. Now, as I understand it, though, you've blocked out quite a bit of memory about that evening May 21st, `96, is that what you're —
A. Yes, ma'am, I have.
Q. So, it's possible you were standing up, was it not?
A. No, ma'am, it's not. If I was —
Q. So, you just blocked out certain parts that you don't want to remember and you've remembered things that are important to you to help win you this case, is that a correct —
A. No, ma'am.
Q. — assessment of your testimony here today?
A. No, ma'am.
Q. Okay. You remember this part, but you've blocked out most everything else of the evening, is that correct?
A. No, ma'am.
Q. So, you don't know what you've blocked out and what you've remembered, is that a correct assessment, then, of your testimony?
A. Perfectly honest? What I have blocked out, no, I do not remember, but what I do remember, I am being perfectly honest about.
Thus, it is claimant's testimony that while he cannot remember much about the accident, he does remember that he was on his knees under the machine and that Mr. Godsby did not tell him, or warn him, that he was about to turn the machine on.
Mr. Godsby testified that he actively assisted the claimant in placing the chain back on the saw. According to Mr. Godsby, he did not simply stand around, as indicated by the claimant. Mr. Godsby further testified that once he and the claimant got the chain on the saw, he and the claimant were standing by the machine, and he advised the claimant that he was going to turn the saw on. Mr. Godsby specifically testified:
We put the chain on and walked around there, and I said, "Donny, let's see what it will do before we do anything else to make sure it's going to work", and he said, "All right." So, I turned my back to him and reached over to hit the start button, and he hollered about that time. He had put his hand inside the chain.
Mr. Godsby was asked if there were any other employees around at the time of the injury, to which he replied that Mr. Allen was working on the rip saw, which was approximately 75 to 100 feet away. Mr. Godsby denied any conversations with the claimant while en route to the hospital. Mr. Godsby was further asked his impression of whether the claimant understood whether Mr. Godsby was going to turn on the machine, to which he replied:
Yes, because he was standing right there beside me when I turned, and said, "just a minute and let's see what the saw is going to do," and he said, "All right."
Under examination by the Administrative Law Judge Mr. Godsby was asked ". . . do you think that he understood that you were getting ready to turn on this machine?", to which he responded, "I thought he did. I wouldn't have turned it on if I had knowed he didn't understand I was going to turn it on."
Jason Ballard, a co-owner of respondent-employer, also testified on behalf of respondent. Mr. Ballard offered a detailed description of the panel saw on which claimant and Mr. Godsby were working. Mr. Ballard confirmed Mr. Godsby's testimony that the sprockets could be adjusted without having to get underneath the saw. He explained that once the sprockets are tightened, then a person would have to get back under the machine in order to tighten the jam nuts. Respondents' Exhibit No. 2 is a rough diagram of the panel saw prepared by Mr. Ballard. Mr. Ballard explained "You would have to climb under the machine to attach the chain, you would have to do that, and then once that would be done, then you would then want to go back out of the machine, move the saw back to home base — this is considered home base at this end of the machine." As explained by Mr. Ballard, the large box drawn on the saw represents home base. Again, during cross-examination, Mr. Ballard explained on cross-examination that the sprockets are on the outside end of the machine and one would need to get out from under the machine in order to reach the sprockets for adjustment. He further explained, "No, you would have to turn the machine on and let it come back to home base and then make the adjustments on the chain and the sprocket and then do the final tightening on the jam nuts, which are then back underneath the machine."
Mr. Ballard further testified that some time after the accident occurred, claimant told him that he was attempting to tighten the jam nuts when Mr. Godsby turned on the machine. Mr. Ballard specifically testified:
Yeah, after the accident had occurred, and months had, I guess, had passed, he had claimed that Donny — or Donny and Bobby were under the saw, they had just completed attaching the chain, and that Bobby said, "Let's go ahead and turn it on. We'll bring it back home and then we'll go ahead and adjust the chain and the sprocket and then tighten it up, and it should be ready to run," and then he said that when Bobby turned to turn it on, he thought he had time to reach in and make one last adjustment and tighten the jam nut, why that would have been, I have no idea.
Undisputedly, at the time of claimant's accident marijuana metabolites were present in claimant's system. Accordingly, the rebuttable presumption created by Ark. Code. Ann. § 11-9-102(5)(B)(iv)(b) (Supp. 1997) is applicable. See, Eugene Ester v. National Homes Centers, Inc., 61 Ark. App. 91, 967 S.W.2d 565 (1998). In Ester, supra, the court stated:
Neither can we agree with appellant's assertion that the evidence was not sufficient to raise the statutory presumption or to deny benefits on that basis. On January 21, 1998, we handed down two (2) opinions affirming the Commission's conclusion that marijuana metabolites in a person's urine was sufficient to invoke the rebuttable presumption that the injury or accident was substantially occasioned by the use of the drug. Graham v. Turnage Employment Group, 60 Ark. App. 150, ___ S.W.2d ___ (1998); Brown v. Alabama Elec. Company, 60 Ark. App. 138, ___ S.W.2d ___ (1998).
Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Ester v. National Home Center, Inc., supra. Moreover, the rebuttable presumption created by this statute has been found constitutional. Eugene Ester v. National Home Centers,supra; see, also, Tracy Reddick v. Binkley Company, Full Commission Opinion, May 15, 1998, ( E603208);Andre Jefferson v. Continental Loss Adjusting, Full Commission Opinion, April 11, 1997, ( E405575).
The Administrative Law Judge found that claimant rebutted the presumption in proving that his injury was substantially occasioned by the use of marijuana. In reaching this conclusion, the Administrative Law Judge opined that claimant's injury was caused by the negligence of Mr. Godsby. The Administrative Law Judge apparently placed more credence in the testimony of Zane Allen, than on that of Mr. Godsby. It is evident from reviewing the transcript that Mr. Allen did not like Mr. Godsby and was a hostile and argumentative witness. On the other hand, Mr. Godsby appeared to be a cooperative witness, who did his best to explain the circumstances surrounding the injury, although he was unable to explain why the injury occurred. It is true that Mr. Godsby was responsible for turning on the saw, but to believe the testimony of claimant and Mr. Allen, one would have to find that the claimant was under the saw with his arm in the machine, and Mr. Godsby turned on the machine without ever checking to see if claimant had gotten out. We find this scenario to be unbelievable in light of the evidence. Claimant's expert toxicologist, Dr. William Wessinger, testified in his deposition that the facts surrounding the accident as presented to him by claimant's attorney, more likely suggested that Mr. Godsby was impaired and not the claimant. We respectfully disagree with this analysis. Our de novo review of the record reveals that there is no evidence whatsoever that Mr. Godsby was impaired in any fashion. Mr. Godsby and Mr. Allen both testified that Mr. Godsby verbally advised the claimant that he was going to turn on the machine, which is just what he did. Mr. Godsby further testified that when he told the claimant he was going to turn on the machine, the claimant was standing next to him. While it is possible that the claimant did tell Mr. Godsby to "hold on a minute," as Mr. Allen explained, there is no evidence that claimant made any attempts to determine if Mr. Godsby heard or even understood this admonishment prior to placing his hand into the machine. In our opinion, a rational and sober person would take precaution before placing his hand in a machine, especially after someone says that he is going to turn the machine on. In our opinion, if Mr. Allen's testimony is taken as true and claimant said, "Hold on", claimant disregarded his own personal safety when he either failed to insure that Mr. Godsby heard his admonishment to hold on when he was still in the machine, or when he placed his hand into the machine believing he still had a few seconds to make adjustments before the machine was started. If claimant's testimony is taken as true, and Mr. Godsby did not warn claimant that he was going to turn on the machine, then we still find claimant's actions of placing his hand into the machine without properly assuring that his supervisor was aware that he was in danger, displays a disregard for his own personal safety.
Accordingly, we find that claimant has failed to overcome the presumption that the injury was substantially occasioned by the use of drugs through Mr. Allen's testimony. Mr. Allen's testimony is not consistent with claimant's regarding whether a verbal warning was issued by Mr. Godsby. Furthermore, according to Mr. Godsby, Mr. Allen was not even around when the accident occurred. Mr. Allen is obviously a friend of claimant and he harbored a grudge against respondent-employer, as evidenced by his hostility. Consequently, we find that Mr. Allen's testimony is entitled to little weight.
Claimant also attempted to overcome the presumption that his injury was substantially occasioned by the use of marijuana through the deposition testimony of Dr. William Wessinger. Dr. Wessinger is a noted toxicologist for the University of Arkansas for Medical Sciences. Dr. Wessinger's deposition was taken for the purpose of establishing that the positive finding of Carboxy THC in claimant's blood did not prove that claimant was impaired at the time the blood sample was taken. However, a thorough review of Dr. Wessinger's deposition reveals that Dr. Wessinger was only able to opine that the test results he reviewed failed to confirm impairment, but did not confirm non-impairment. Dr. Wessinger stated:
Well, as I said earlier, you are on slippery ice if you try to correlate blood levels with impairment, but, certainly, your ice would be less slippery if you actually had THC, detectable levels of THC, in the blood, and you wanted to make some sort of speculation about the level of impairment. If you don't have THC present, your ice gets very slippery if you try to say, "This person was impaired to such and such an extent."
When asked if the 47 nanograms per milliliter of Carboxy THC detected in claimant's blood was relatively high, Dr. Wessinger stated:
Considering that after a single marijuana cigarette you would see peak effects between 22 and 106, it seems like it falls right in the middle, so — you can see levels that are detectable out to, like I said, about 160 hours after ingestion. It's a little bit surprising to see levels of 47 without levels of THC accompanying them, but, again, that doesn't seem to be outside the realm of possibility, by any means, but based upon the six subjects that I have detailed knowledge of, that would be an unusual circumstance.
To summarize Dr. Wessinger's deposition, it is his position that it is impossible for him to determine, based upon the drug screen test, whether claimant was impaired at the time the blood was taken. First, we note that Dr. Wessinger's opinion is not only inconsistent with that of respondents' expert, Dr. Kim Edward Light, but it is also inconsistent with the Full Commission and Court of Appeals Opinions finding that drug metabolites are sufficient to create the rebuttable presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b). Graham v. Turnage Employment Group, 60 Ark. App. 150, ___ S.W.2d ___ (1998);Brown v. Alabama Electric Company, 60 Ark. App. 138, ___ S.W.2d ___ (1998); Ester v. National Homes Centers, Inc., 61 Ark. App. 91, ___ S.W.2d ___ (1998). Second, we note that the rebuttable presumption created in this section arises upon a finding of the presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders, not by confirmation of impairment from these substances. (See Continental Express v. Harris, 61 Ark. App. 198, ___ S.W.2d ___ (1998), wherein the Court of Appeals held that even a negligible amount of alcohol in one's blood, well below that required for legal intoxication, is sufficient to invoke the presumption;) and ERC Contractor Yard Sales v. Lonnie Robertson, ___ Ark. ___, ___ S.W.2d ___ (Opinion delivered Nov. 4, 1998).
Respondents' expert, Kim Edward Light, a Ph.D. Pharmacologist, who is a Professor of Pharmacology at the College of Pharmacy at the University of Arkansas for Medical Sciences, explained why the confirmation test may only have reflected positive Carboxy THC. Dr. Light explained, "A confirmation test in most drug-testing programs looks for the primary metabolite of THC, which is a Carboxy THC, using a technique called GCMS, gas chromatography mass spectroscopy. In this report the test for Carboxy THC by GCMS confirmation was positive and showed a level of 47 nanograms per mil." Dr. Light further explained in his deposition that the negative finding on the confirmation screen for THC indicated:
Well, that just says that they either didn't look for THC — they don't show any indication that they looked for the parent compound THC using the GCMS procedure. The information from this report would be that they just looked for the Carboxy THC, which is not an uncommon approach to take. The Carboxy THC is an easier compound to measure, extract out of blood and measure through GCMS.
So the negative on THC either means that they looked for it and it was below cut-off level or, more likely, their GCMS procedure looked specifically for the Carboxy THC.
When Dr. Light was asked why he thought Dr. Wessinger would disagree with his findings that the positive finding of 47 nanograms per mil of Carboxy THC represented impairment, Dr. Light stated:
Well, the THC is negative. Probably what Dr. Wessinger had not remembered or referred to is the scientific studies that are done to give us the tools to correlate Carboxy THC with impairment and to interpret that. I suspect Dr. Wessinger probably forgot about some science that I was not forgetful about.
When asked to explain how Carboxy THC correlated to impairment of an individual, Dr. Light stated:
A. Well, in these studies — the intent of these studies are to provide us the tools to interpret these types of tests. And so in these particular studies, information of individuals who had smoked marijuana and had blood and urine levels taken, those measurements were made of the Carboxy THC in the blood and the Carboxy THC in the urine. And a relationship between urine concentration and blood concentration was established, measuring both compounds in both media and finding a relationship between that.
And it was found that there is a linear relationship. In other words, the concentration of Carboxy THC in the blood predicts the concentration of Carboxy THC in the urine and vice-versa. From that study then, the nature of that linear relationship is a mathematical relationship. And that's what I used to interpret the 47 nanograms per mil urine level, based upon that linear relationship.
Further on in that study the report — the question then of what urine level of Carboxy THC is indicative of enough THC in the body to be impairing? And the conclusion of those authors was that above 100 nanograms per mil in the urine was indicative of a sufficient concentration of THC to reflect active impairment at that time.
From that then is where I formed my conclusion that the 47 nanograms per mil in the blood corresponds to a 267 nanogram per mil in the urine, which is two-and-a-half times above a concentration that reflects active impairment. And that's based upon the scientific literature. And I suspect Doctor Wessinger didn't have that scientific study in his hands when he rendered his opinion.
When we weigh the expert opinions in this claim, it is our opinion that Dr. Light's opinion regarding impairment is entitled to greater weight. Dr. Light thoroughly explained the correlation between the positive findings of Carboxy THC and impairment. Dr. Wessinger only offered an opinion that the test neither confirmed nor ruled out impairment. Dr. Wessinger is of the scientific thought that impairment from marijuana only lasts a few hours, while Dr. Light explained that the direct effect of marijuana and the "hangover effect" from marijuana ingestion may last for as much as 24 hours. He further explained that although the test results did not detect an active component of THC in claimant's blood, the 47 nanograms per mil of Carboxy THC could be extrapolated out to imply a positive finding of THC in excess of that necessary to reveal impairment.
Accordingly, for those reasons set forth herein, we find that claimant has failed to overcome the rebuttable presumption that his injury was substantially occasioned by marijuana by the greater weight of the credible evidence. The presumption remains; claimant's injury is attributed to his impaired judgment from marijuana use. In our opinion, claimant's actions of either failing to adequately warn Mr. Godsby that he was not completely out of the machine, or of placing his hand into the machine mistakenly believing that he had enough time to adjust the sprockets or jam nuts is clear evidence of claimant's disregard for his own personal safety which strongly suggests impairment resulting from drug use. (See Vernon Woodall v. Honeycutt Construction, Full Commission Opinion filed September 3, 1998 ( E707367); Tracy Reddick v. Binkley, Full Commission Opinion, May 15, 1998 ( E603208).)
Accordingly, for those reasons stated herein, we find that claimant has failed to rebut the presumption that the injury was substantially occasioned by his use of marijuana by a preponderance of the evidence. Therefore, we find that the decision of the Administrative Law Judge should be, and hereby is, reversed.
IT IS SO ORDERED.
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PAT WEST HUMPHREY, Commissioner
DISSENTING OPINION
I respectfully dissent from the majority opinion which finds that claimant failed to rebut the statutory presumption that his injury was occasioned by the use of marijuana.
Claimant worked on the second shift for respondent employer. He testified that on May 21, 1996, a computerized panel saw was malfunctioning. Claimant explained that the chain repeatedly popped off of the sprocket. Because this problem could not be resolved, the plant manager, Bobby Godsby, was called at home. He arrived at about 5:45 p.m. The saw was turned off so that repairs could be made. Claimant stated that he was on his knees and positioned underneath the saw so that he could make the necessary repairs. He testified that he was able to get the chain back on. He stated that his only remaining task was to tighten the sprocket, which he was attempting to do with his left hand. Claimant testified that Godsby was supervising, and not actually working on the saw. He stated the button to turn the saw on was 4-5 feet from where he was positioned. Godsby turned the saw on, and several of claimant's fingers were amputated.
Zane Allen testified in claimant's behalf. He stated that he witnessed the accident. He explained the course of events as follows:
Okay. We had finished cutting a load before they had even got the chain back on. At that time I walked over, approximately 10 to 12 foot from the saw, and I was watching what was going on to see if they figured out what had — why it wasn't — why it was breaking the chain. I seen Donny, I seen the top of his head from where I was and him down on his knees tightening the sprocket. You know, all you can really see is the top of their heads. About that time Bobby goes, "Are you ready?" Donny said, "Hold on just a second," and that quick, Bobby pushed the start button and up — and Donny screamed out. I mean it was a horrible scream. He jumped up and shot out the door and Bobby was right behind him.
Claimant testified that Godsby transported him to the hospital. He stated that en route, Godsby began apologizing; however, he interrupted him. Claimant testified that he told Godsby he knew it was an accident, and did not wish to discuss it. A drug test performed at the hospital was positive for marijuana metabolites. Claimant acknowledged that he had smoked marijuana at approximately 11:00 p.m. the previous evening. He reported for work at 1:00 p.m. on the 21st. Claimant did not smoke marijuana on the date of the accident. He stated that he is an epileptic, takes medication daily, and he took his medication on the date of the accident.
Bobby Godsby testified for respondents. He acknowledged that claimant had been a good employee. His account of the accident was inconsistent with that of Zane Allen. Godsby stated claimant was standing beside him, and he informed claimant he wished to turn the saw on to determine if it would work. He testified that in response to this statement, claimant said "all right." Godsby stated that the instrument panel was two feet from where the men were standing. He reached the machine in just a few seconds, and hit the start button. When claimant screamed, he turned off the machine. Godsby stated that he transported claimant to the hospital, but denied discussing the accident with him. He testified that at the hospital, claimant admitted that the accident was his fault. Godsby testified that when claimant returned to work he again discussed the accident. At that time, claimant indicated that placing his hand in the saw was an exercise of poor judgment on his part.
Godsby testified that when he arrived at the plant, he worked with claimant for approximately 15 minutes. He acknowledged that claimant seemed to be behaving normally.
Jason Ballard testified in behalf of respondents. He stated that when claimant reported to work on May 21st, his eyes appeared bloodshot and swollen. He testified that he did not detect an odor of marijuana. Ballard suspected that claimant had used marijuana prior to reporting to work. However, he acknowledged that he did not confront claimant. Ballard testified that when claimant returned to work following the accident, he admitted hearing Godsby's warning regarding the saw. According to Ballard, claimant believed that he had enough time to tighten up the jam nuts before the saw was turned on.
Ballard explained that to make adjustments to the saw, one must turn it on and allow it return to "home base" and then make the adjustments on the chain and sprocket. On examination by the Administrative Law Judge, Ballard agreed that there would be no purpose in adjusting the jam nuts before the machine was turned on. Ballard also stated that it would be necessary to be in a squatting position to adjust the jam nuts. Moreover, it would take a minute or two to complete this task.
As the Administrative Law Judge pointed out during the hearing, this is more consistent with Allen's explanation as to how the accident occurred. In my opinion, Godsby's explanation strains credulity.
Both parties offered expert testimony from toxicologists with respect to the issue of impairment. However, it is my view that claimant's injury was caused by the negligence of plant manager Bobby Godsby. Nevertheless, the deposition testimony of claimant's expert witness, Dr. William Wessinger, reflects that claimant was not impaired at the time of the accident. He acknowledged that claimant's drug screen was positive for marijuana metabolites. However, he stated that a quantitative analysis indicated that there were no active components of THC found in the sample. Wessinger testified that there were merely inactive components known as carboxy metabolites, which is indicative of recent marijuana use but not impairment.
Claimant contends that he is entitled to medical and temporary total disability benefits. I agree. Claimant's period of disability began on May 22, 1996. At the hearing, the parties stipulated that claimant's healing period ended on March 17, 1997, and that respondents would be entitled to a credit for the time periods that claimant drew unemployment benefits and worked. Therefore, he is entitled to temporary total disability benefits from May 22, 1996, through March 17, 1997, subject to the aforementioned credit.
Based on the foregoing, I respectfully dissent.
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