Continental Express v. Harris

965 S.W.2d 811, 61 Ark. App. 198, 1998 Ark. App. LEXIS 221
CourtCourt of Appeals of Arkansas
DecidedApril 8, 1998
DocketCA 97-1252
StatusPublished
Cited by24 cases

This text of 965 S.W.2d 811 (Continental Express v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Express v. Harris, 965 S.W.2d 811, 61 Ark. App. 198, 1998 Ark. App. LEXIS 221 (Ark. Ct. App. 1998).

Opinion

Sam Bird, Judge.

Continental Express, a trucking company, appeals a decision of the Workers’ Compensation Commission holding that appellee had rebutted the presumption contained in Ark. Code Ann. § ll-9-102(5)(B)(iv)(b) (Repl. 1996), and proved that the one-vehicle accident in which he was injured was not “substantially occasioned” by the use of alcohol. Appellant argues that the Commission erred in (1) interpreting and applying Ark. Code Ann. § 11-9-102(5) (B)(iv)(b); (2) finding that appellee’s seizures are causally related to his employment; and (3) awarding additional temporary total disability benefits because there was not substantial evidence to show that the claimed period of total incapacitation was causally connected to the compensable injury. We affirm.

On December 21, 1994, appellee was on his way to Crossett. He testified that it was raining and foggy, that he was on a two-lane road, that he was driving about forty-five miles an hour, and that his trailer was empty when a small white car attempted to pass without adequate room and cut closely in front of him. Appellee said that when he put on his brakes to avoid hitting the car and an on-coming vehicle, his truck jackknifed and went into a ditch.

Appellee testified that he was unconscious for a short time and awakened to find a witness asking him if he was all right. He said he crawled out of the truck, across the ditch and onto the highway where law enforcement officers were waiting. He had bruises and cuts on his head, hands, and knees. There was a twelve-pack of unopened beer in the cab of his truck, but an officer performed a field sobriety test on appellee, and appellee passed. Appellee was taken to the hospital by ambulance where he was treated for a laceration to his scalp, a neck injury, a lower back injury, and a left leg injury. Blood withdrawn at the hospital revealed that appellee’s blood-alcohol content was .021%. It is unlawful to operate a motor vehicle if a person has one-tenth of one percent (0.10%) or more alcohol in his blood. Ark. Code Ann. § 10-65-103 (Repl. 1993). However, Ark. Code Ann. § 27-23-112 (Repl. 1994) provides that a commercial truck driver shall be disqualified from holding a commercial driver’s license if convicted of driving a commercial vehicle with a blood-alcohol concentration of four one-hundredths of one percent (0.04%) or greater.

Appellee testified that on December 21, 1994, he and his partner had driven all night from Albuquerque, New Mexico, to Little Rock, and had arrived between 5 and 7 a.m. While waiting for a new load, appellee and his co-driver drank a couple of beers, and then appellee went to bed. Late that afternoon he was told to go pick up a load in Crossett. The accident occurred just north of Monticello. Appellee was taken to Drew Memorial Hospital in Monticello where the emergency-room report shows the time as being 7:09 p.m. The blood-alcohol report shows that appellee’s blood was drawn at 7:45 p.m.

Following his release from the hospital, appellee returned to his hometown of Rayville, Louisiana, where he was treated by Dr. Charles S. Krin, a family practice physician in Rayville. Appellee began to have severe headaches, vertigo, and seizure-like episodes, in addition to his other injuries. On June 15, 1995, appellee was taken to the emergency room at Richardson Medical Center in RayvilLe because he had been drinking and suffered a seizure. His blood-alcohol level was 0.28 percent. Appellee testified at the hearing that he quit drinking that day and had not had a drink since.

Appellant originally accepted the claim as compensable and paid medical expenses and temporary total disability benefits until October 30, 1995, but controverted any claim subsequent to that date. Appellee sought compensation for temporary total disability and medical expenses to the end of his healing period. Appellant raised the defense of Ark. Code Ann. § ll-9-102(5)(B)(iv)(b), which provides that the presence of alcohol, illegal drugs, or prescription drugs used in contravention of 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. Section (d) states 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.

The administrative law judge held that the presumption had been rebutted, and the Commission affirmed and adopted his opinion. It pointed to the evidence that there was a small amount of alcohol in appellee’s blood, that he was driving under the posted speed limit, that there was rain and fog, that his trailer was empty, that his truck was cut-off by a car pulling in too quickly, and that appellee was not cited for being under the influence of alcohol by the investigating officer. The Commission also found that appellee’s testimony was credible, that his seizures were the result of his injury, that he remained in his healing period and totally incapacitated to earn wages as of April 18, 1996, and that he was entitled to temporary total disability benefits from October 30, 1995, through the end of his healing period.

Appellant first argues that the Commission erred in its interpretation and application of Ark. Code Ann. § 11-9-102(5)(B)(iv)(b), because it “engaged in a ‘cause in fact’ analysis in its interpretation of the definition of ‘substantially occasioned’ and erred in its application of the facts to that standard.” Appellant contends that the proper test is merely one of causation and does not equate to a “causation in fact” or a “but for” analysis but instead correlates to a “concurrent cause” analysis. As an example, appellant points to cases of joint and several liability in which concurrent acts of negligence combine to produce a single injury and “each is responsible for the entire result, even though his act alone might not have caused it,” citing Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971) [emphasis appellant’s]. Appellant asserts that to the extent that the Commission required more than a “concurrent cause” analysis, its decision should be reversed and remanded so it can consider the case under a proper standard. Appellant then submits that the rebuttable presumption establishes that appellee’s consumption of alcohol was “at least a concurrent cause” of the accident and appellee was required to prove that alcohol was not a factor by proving the existence of a superseding, intervening cause.

A statutory presumption is a rule of law by which the finding of a basic fact gives rise to the existence of a presumed fact, unless sufficient evidence to the contrary is presented to rebut the presumption. Black’s Law Dictionary 1185 (6th ed. 1990). If evidence that 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, 342 S.W.2d 89 (1961); Ford & Son Sanitary Co. v. Ransom, 213 Ark.

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Bluebook (online)
965 S.W.2d 811, 61 Ark. App. 198, 1998 Ark. App. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-express-v-harris-arkctapp-1998.