Opinion
CLAIM NO. E702510
OPINION FILED FEBRUARY 24, 1999
Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas.
Claimant represented by ROLAND DARROW, III, Attorney at Law, Cabot, Arkansas and BEN E. RICE, Attorney at Law, Jacksonville, Arkansas.
Respondents represented by SKIP HENRY and CHRIS GOMLICKER, Attorney at Law, Little Rock, Arkansas.
Decision of Administrative Law Judge: Reversed
OPINION AND ORDER
[2] Respondent appeals a decision of the Administrative Law Judge filed on April 10, 1998, finding that the mere presence of marijuana metabolites in the deceased claimant's urine is not sufficient to raise the presumption that claimant's death was substantially occasioned by the use of marijuana. Based upon ourde novo review of the entire record, we find that respondent properly presented and raised the presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) that claimant's death was substantially occasioned by the use of marijuana due to the presence of marijuana metabolites in his system. We further find that decedent claimant has failed to overcome this presumption.At the hearing held on February 24, 1998, decedent claimant (hereinafter sometimes referred to as decedent) contended that he sustained an accidental death arising out of his employment on March 4, 1997, and that decedent's estranged spouse and minor child are entitled to dependent benefits. Conversely, respondent contended that at the time of his death, marijuana metabolites were present in decedent's system invoking the presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) that the decedent's death was substantially occasioned by the use of marijuana. Respondent further contended that decedent is unable to overcome this presumption. After reviewing the evidence impartially, without giving the benefit of the doubt to either party, we agree with respondent.
The facts surrounding the decedent's death are not in real dispute. The evidence reflects that decedent and his co-workers were clearing debris following a tornado. In the process of clearing the debris an electrical line became energized. Someone shouted that the line was "hot" and everyone managed to get out of the way except the decedent. Decedent's body was transported to the hospital where blood and urine samples were drawn. The Coroner's investigation also revealed a bag of "green leafy substance", and a pack of "zig-zag cigarette papers" in the decedent's pants pocket. The Toxicology Report ordered by the Pulaski County Coroner from the State Crime Lab. revealed a positive urine test for cannabinoids. The Coroner's office ordered additional toxicology testing from UAMS. Pursuant to the urine forensic drug testing report, decedent's urine revealed 119.8 MG-dL for Carboxy-THC.
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:
. . . [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.
After being presented with evidence of the positive drug screen, decedent deposed Dr. Jimmie Valentine, Ph.D., Toxicologist, who performed the confirmation tests. In his deposition, Dr. Valentine opined that the high level of Carboxy-THC concentration in the decedent's urine revealed the decedent to be a chronic marijuana user and that decedent had used marijuana sometime within the 12 hours immediately preceding decedent's death. The decedent presented testimony from decedent's co-workers who are also relatives by marriage that the decedent was "normal" on the morning of his death. It is decedent's position that the evidence reflecting that he had used marijuana within the 12 hours prior to his death is not sufficient to raise the presumption that marijuana usage was involved. The decedent further contends that the lay testimony that the decedent was his "normal" self is sufficient to overcome the presumption that respondent has raised.
Undisputedly, at the time of the accident, marijuana metabolites were present in the decedent's system. Accordingly, the rebuttable presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv)(b) is applicable. See, Eugene Ester v. National Homes Center, 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 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. ___ (1998); Brown v. Alabama Electric Co., 60 Ark. App. 132, ___ S.W.2d ___ (1998).
As recently as December 10, 1998, the Arkansas Supreme Court affirmed our Opinion in Ester. See, ___ Ark. ___, ___ S.W.2d ___ (1998). In Ester, the Supreme Court stated:
However, there is no statutory requirement that a certain quantity of an illegal drug be proved in order to show its presence.
With regard to the claimant's argument in Ester that drug metabolites fail to confirm the presence of a drug in one's system, the Supreme Court stated:
With regard to Mr. Ester's argument that the presence of cocaine metabolites bears no relationship to the presence of cocaine in his body, there is no evidence in the record demonstrating the lack of a rational relationship between the rebuttable presumption and a positive test for cocaine metabolites. Thus, he has failed to overcome the presumption that Ark. Code Ann. § 11-9-102(5)(B)(iv)(B) is constitutional. ___ Ark. ___, ___ S.W.2d ___ (December 19, 1998).
Having found that respondent properly raised the presumption, we find that the decedent has failed to successfully rebut it. Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine.Ester v. National Homes Center, Inc., supra. Moreover, the rebuttable presumption created by this statute has been found constitutional. Id: See, also, Tracey Reddick v. Binkley Company, Full Commission Opinion, May 15, 1998 ( E603208); Andrea Jefferson v. Continental Loss Adjusting, Full Commission Opinion, April 11, 1997 ( E405575).
In support of his position, the decedent called Jason Sullivan and William Hall to testify. The record reflects that Mr. Sullivan is married to the decedent's wife's daughter. Mr. Hall is married to decedent's sister. Neither of these witnesses actually observed the accident. Instead, they testified regarding their observations of the decedent on the morning of the accident. Mr. Sullivan testified that decedent claimant did not appear to have any problem walking or handling tools, that he did not see the decedent claimant stumbling or trip, and that he did not smell marijuana on the decedent claimant on the morning of the accident. Mr. Hall's testimony corroborated that of Mr. Sullivan. However, it is noted that Mr. Sullivan admitted at the hearing to having smoked marijuana with the decedent claimant in the past. According to Mr. Sullivan, he had even smoked marijuana at work on the evening prior to decedent claimant's accident, but decedent claimant did not partake of marijuana at that time.
In our opinion, the testimony of Mr. Hall and Mr. Sullivan are not sufficient to overcome the presumption that claimant's death was substantially occasioned by the presence of marijuana metabolites detected in his system. First, it is noted that although Mr. Hall and Mr. Sullivan offered their opinion regarding the claimant's sobriety, there was no evidence established that either Mr. Hall or Mr. Sullivan are experts in this capacity. Furthermore, the evidence reflects that both Mr. Hall and Mr. Sullivan heeded the warning of the "hot" line, something which claimant did not do. Consequently, we do not find their testimony persuasive with regard to whether claimant's marijuana use substantially occasioned claimant's death.
The decedent also relies upon the deposition of Dr. Jimmie Valentine in an effort to overcome the presumption that claimant's death was substantially occasioned by the presence of marijuana. The decedent argues that the presence of Carboxy-THC in the decedent's urine did not prove impairment at the time of the injury. However, our review of Dr. Valentine's deposition reveals that the level of Carboxy-THC in the decedent's urine "is consistent with someone that has used it in the previous 12 hours." When asked to assume that the decedent had used marijuana within the 12-hour window prior to his death and asked to assume other facts concerning the decedent coming in contact with power lines, decedent's counsel asked Dr. Valentine to determine whether the use of marijuana within that 12-hour window had any difference on the accident, to which Dr. Valentine responded:
A. Okay. I think the answer is yes, it would have some effect and let me see if I can explain that. Based upon what we talked about earlier that we know that there's some fine motor control skills that are — that affected by marijuana use, and had he still had residual amounts of this marijuana in him from smoking somewhere in the 12-hour frame of time before the accident, it's quite possible that — again, not knowing the circumstances of the accident, it's quite possible that he would have been not able to respond as quickly as you would normally. In other words, the reflexes are not quite as — quite as fast as they would be under normal circumstances because, again, you know, it's been affected a little bit by that. Now, had he smoked very early in that 12-hour period, in other words, let's say that he had smoked just a few hours before the accident occurred, there is ample studies to show that one loses a lot of peripheral vision in those early time periods when — after smoking occurs and, so you don't tend to notice things that come at you from the side because you're more focused on things in front of you and not things coming from the side. So, again, not knowing the details of the accident, if the accident had happened and some — and this had happened from the side, that might be an explanation as to why that occurred. So, a lot depends on what the circumstances of the accident are and so forth for me to really kind of opine and give a — give, you know, what I would feel like would be a reasonable explanation for it.
The decedent argues that since there are no direct studies showing the affect of marijuana on a person after four hours but prior to 12 hours of usage makes the doctor's assumptions based upon 24-hour post-usage studies questionable. However, our review of Dr. Valentine's deposition does not support this argument. Dr. Valentine clearly testified that in his opinion claimant was impaired at the time of the accident. In reaching his findings, Dr. Valentine relied upon studies of pilots after 24 hours post-marijuana use. As explained by Dr. Valentine, such detailed testing has not been conducted at a 4, 8, or 12-hour interval. However, this does not render Dr. Valentine's opinions based upon a 24-hour study meaningless. On the contrary, if a person is still deemed impaired after 24 hours from smoking marijuana, it can logically be assumed that a person is impaired at any time prior to 24 hours post-marijuana use. As explained by Dr. Valentine, impairment has been confirmed in these earlier hours by other testing, but the testing was not quite as sensitive as the test performed on the pilots. Consequently, we are not persuaded by claimant's argument.
When we weigh Dr. Valentine's deposition testimony against that of Mr. Sullivan and Mr. Hall and the decedent's actions on the morning of his death, we find that the decedent has failed to overcome the presumption that his death was substantially occasioned by the presence of marijuana. Dr. Valentine testified to a correlation between the positive findings and impairment. Dr. Valentine further testified that the high level of marijuana metabolites in the decedent's system proved that the decedent was a chronic marijuana user. Although the bag of "green leafy substance" found in decedent claimant's pants pocket was sealed, that does not mean that claimant had not smoked marijuana in the recent past, or that he was not impaired. On the contrary, according to Dr. Valentine, the decedent smoked marijuana within the 12-hours preceding his death. Possibly, decedent claimant could have smoked it within an hour before his death, but he at least smoked it as recently as 12 hours prior to being electrocuted. Mr. Sullivan and Mr. Hall both testified that after being warned of the "hot wire", they were able to avoid it. However, claimant's actions did not prove him to be as nimble. Finally, we place no weight on the testimony of Mr. Hall and Mr. Sullivan regarding claimant's level of intoxication on the morning of the accident. Both men are not only friends of the deceased claimant, but are also relatives by marriage. Their expertise in detecting sobriety was not established. Consequently, we are not persuaded by their testimony that the decedent has overcome the presumption that decedent's death was substantially occasioned by the use of marijuana.
Accordingly, for those reasons set forth herein, we find that respondent has successfully raised the presumption that claimant's death was substantially occasioned by the presence of marijuana and that claimant has failed to overcome this presumption. Therefore, we find that the decision of the Administrative Law Judge should be reversed.
IT IS SO ORDERED.
I respectfully dissent from the majority's opinion. Upon review of the Opinion, the parties briefs and the record, I would affirm the Administrative Law Judge's ruling.
It is clear to me that A.C.A. § 11-9-102(5)(B)(iv)(b) offers no distinction between those who actually are intoxicated at work and those who may have been at a remote point in time but still retain some ethereal "metabolite" or "break-down" product in their system. Metabolic traces are, if anything, an indication that a substance has been processed by the body and reduced to a waste product far removed from its impairment-causing phase. Metabolized and excreted byproducts do not indicate the "presence" of an intoxicant in a person's system. Act 796 requires the "presence" of an intoxicant before the relevant presumption can be raised.
Even if we accept that the presumption was properly raised I find that the testimony of the witnesses constitutes independent evidence that claimant was not impaired at the time of his death and therefore rebuts that presumption. The testimony of Jason Sullivan and William Hall was based upon their personal observation of claimant on the morning of his death. Both witnesses testified that claimant appeared to be sober and gave no outward indication that he was intoxicated. Neither did either witness detect the odor of marijuana on the decedent. Of course there is no requirement that the witnesses have training on the topic of marijuana impairment in order to provide credible evidence on that issue. See; Express Human Resources III v. Terry, 61 Ark. App. 258, 265 968 S.W.2d 630, (1998)
In addition, there is no evidence of impaired or drug influenced judgment, in fact there is evidence that claimant had been exercising good judgment shortly before his death. Likewise, the mere fact that Mr. Wood was unfortunate enough to die on the job does not support the assumption that he failed to heed the warning that the line was hot.
The relevant code section, A.C.A. § 11-9-102(5)(B)(iv), provides that the claimant may overcome the rebuttable presumption that his death was substantially occasioned by the use of illegal drugs by a preponderance of the evidence. See; Express Human Resources III v. Terry, supra. An injury is substantially occasioned by the use of drugs or alcohol when there is a direct causal link between the use of alcohol or drugs and the injury. See; ERC Contractor Yard Sales v. Robertson, 335 Ark. ___, ___ S.W.2d ___ (November 5, 1998). Claimant has provided us with evidence that his death was not substantially occasioned by the use of illegal drugs. When I examine the record for evidence of a direct causal link between claimant's drug use and his death I find nothing other than the presumption itself. Even a scintilla of evidence must constitute a preponderance when compared to nothing.
The opinion of Dr. Valentine does not support the presumption that claimant's death was substantially occasioned by his use of illegal drugs. Dr. Valentine did not know when claimant had last used marijuana nor did he observe the accident which caused claimant's death, both factors which he acknowledged were relevant to his opinion on causation. Dr. Valentine's equivocal conclusions that claimant's reflexes could possibly have "been affected a little bit" or that a possible loss of peripheral vision "might be an explanation" are speculation and far from the level of evidence needed to support respondent's position in light of the evidence presented by the claimant. Dr. Valentine did not identify any direct causal link between claimant's death and his use of marijuana. Speculation and assumptions can not be substituted for evidence.
Ultimately no one knows what happened when the downed electrical wire unexpectedly regained power. We have evidence that marijuana metabolites were present in claimant's system. We have credible testimony that claimant's death was not substantially occasioned by his drug use. We have no evidence which supports the conclusion that claimant's death was directly caused by his drug use. Accordingly, we should give the rebuttable presumption the weight necessary to best serve the interest of justice. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168, (1973). In this case that necessary weight is substantially less than the weight of the evidence presented by the claimant. I find that the purposes of our Worker's Compensation system and the interest of justice require that we affirm the opinion of the Administrative Law Judge in this case.
PAT WEST HUMPHREY, Commissioner