Hickey v. Gardisser Construction

377 S.W.3d 259, 2009 Ark. App. 725, 2009 Ark. App. LEXIS 899
CourtCourt of Appeals of Arkansas
DecidedNovember 4, 2009
DocketNo. CA 09-537
StatusPublished
Cited by5 cases

This text of 377 S.W.3d 259 (Hickey v. Gardisser Construction) 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
Hickey v. Gardisser Construction, 377 S.W.3d 259, 2009 Ark. App. 725, 2009 Ark. App. LEXIS 899 (Ark. Ct. App. 2009).

Opinion

ROBERT J. GLADWIN, Judge.

| TAppellant David Hickey appeals the April 16, 2009 decision of the Arkansas Workers’ Compensation Commission, which found that appellant was not entitled to medical and indemnity benefits for an injury to his right ankle. The Commission affirmed the ALJ’s finding of disability related to appellant’s wrist injury. Appellant contends that the Commission erred in regard to his ankle injury by finding that he failed to rebut the presumption that his ankle injury was substantially occasioned by his use of illegal drugs. We affirm the Commission’s decision.

Appellant sustained a compensable injury to his left wrist on September 5, 2006, when he fell off a ladder. While undergoing treatment for this injury, he was released to work light duty. On November 22, 2006, while working, appellant walked across a metal roof to get some more screws for his screw gun. He fell off the roof, sustaining serious injury to his right |2ankle. Appellant was transported to Si-loam Springs Memorial Hospital where he underwent surgery to repair fractures in his right distal fibula and distal tibia. Before his release from the hospital, a urine sample was taken for a drug-screen test. This drug-screen test returned positive for methamphetamine.

On June 26, 2007, appellant was released by his treating physician to “activities as tolerated” and to “sitting work with occasional standing and walking.” Based upon the positive drug screen, appellee Gardis-ser Construction, appellant’s employer, controverted appellant’s claim pursuant to Arkansas Code Annotated section 11-9-102(4)(B)(iv)(a) — (d) (Supp.2007), which provides that a compensable injury does not include an injury where the accident was substantially occasioned by the use of illegal drugs.

Appellant testified that he snorted an eighth of a gram of methamphetamine around 6:00 p.m. on the night before his injury. Although he testified that he was not under the influence of this drug at the time of his fall, appellee called Dr. Henry Simmons, Jr., to refute appellant’s testimony. Dr. Simmons is the medical director for the Arkansas Poison Center and also an Associate Professor of Toxicology and Emergency Medicine at the University of Arkansas Medical School. In addition to being a medical doctor, Dr. Simmons also has a Ph.D. in toxicology. Dr. Simmons reviewed documents pertaining to the collection of urine for a post-accident drug test, as well as the results of that test, medical records from appellant’s initial hospitalization, a portion of appellant’s deposition testimony, and he sat through appellant’s hearing testimony. Dr. Simmons testified that, based upon appellant’s testimony Rthat he snorted methamphetamine around 6:00 p.m. on the night prior to the accident, together with the drug-screen result three days after the accident that still showed a significant concentration of methamphetamine and its metabolite in appellant’s urine, appellant clearly had methamphetamine circulating in his body at the time of the accident.

On July 21, 2008, the ALJ found that appellant met his burden of proving by a preponderance of the evidence that his injury was not substantially occasioned by the use of the methamphetamine. The ALJ thus found that appellee was liable for payment of all reasonable and necessary medical treatment provided in connection with appellant’s right-ankle injury. Further, the ALJ found that appellant was entitled to temporary-total-disability benefits beginning November 22, 2006, through July 5, 2007, and again from December 1, 2007, through April 16, 2008. Because appellant received unemployment compensation benefits at a rate greater than his temporary-total-disability rate, the ALJ found appellant not to be entitled to temporary-total-disability benefits from February 3, 2007, through July B, 2007.

Appellee appealed to the full Commission, and based upon its de novo review of the entire record, the Commission found that appellant failed to overcome the statutory presumption by a preponderance of the credible evidence. The Commission stated:

Here, the medical evidence indicates that the claimant had a substantial amount of methamphetamine in his body to effect (sic) both the claimant’s behavior and judgment. Although the metal roof was slippery on the date of the claimant’s injury, the drugs in the claimant’s system were sufficient enough to effect (sic) how he gauged this particular hazard. While other employees had slipped on the roof, they took measures to pour liquid on the roof to obtain more grip. The claimant did not offer Cany testimony with regard to what measures, if any, he took to acknowledge this known hazard. Thus, the only conclusion that can be drawn is that the claimant failed to take any steps to protect himself from possibly slipping off the roof. This failure to gauge the hazard he was faced with is evidence of claimant’s impairment when the injury occurred. Accordingly, we are not persuaded by the claimant’s testimony that he was not impaired and that the accident was just that, an accident that was not substantially occasioned by the presence of methamphetamine. On the contrary, we find that the claimant has failed to present sufficient credible evidence that the his [sic] ankle injury was not substantially occasioned by his use of illegal drugs.

Therefore, the Commission reversed the decision of the ALJ regarding the injury to his right ankle. However, the Commission affirmed the ALJ’s finding of disability related to appellant’s wrist injury. Appellant filed a timely notice of appeal, and this appeal followed.

Arkansas Code Annotated section ll-9-102(4)(B)(iv)(a) provides that an injury is not compensable where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. “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.” Ark.Code Ann. § 11-9-102(4)(B)(iv)(b). Prior to the passage of Act 796 of 1993, it was the employer’s burden to prove that an employee’s accident was caused by intoxication or drug use. Express Human Resources III v. Terry, 61 Ark.App. 258, 968 S.W.2d 630 (1998). However, Act 796 of 1993 shifted this burden of proof by requiring the employee to prove by a preponderance of the evidence that alcohol or drug use did not substantially occasion the injury, if alcohol or drugs were found in his body after an accident. Id. The Commission is | ¡^required to determine whether the claimant has met his burden of proof in rebutting the presumption. Apple Tree Serv., Inc. v. Grimes, 94 Ark.App. 190, 228 S.W.3d 515 (2006); Ark. Elec. Coop. v. Ramsey, 87 Ark.App. 254, 190 S.W.3d 287 (2004). Moreover, whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Id.

Our standard of review in workers’ compensation cases is well settled.

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Hickey v. Gardisser
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Cite This Page — Counsel Stack

Bluebook (online)
377 S.W.3d 259, 2009 Ark. App. 725, 2009 Ark. App. LEXIS 899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickey-v-gardisser-construction-arkctapp-2009.