Jackson v. Smith Blair, Inc.

379 S.W.3d 555, 2010 Ark. App. 691, 2010 Ark. App. LEXIS 728
CourtCourt of Appeals of Arkansas
DecidedOctober 20, 2010
DocketNo. CA 10-539
StatusPublished
Cited by1 cases

This text of 379 S.W.3d 555 (Jackson v. Smith Blair, Inc.) 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
Jackson v. Smith Blair, Inc., 379 S.W.3d 555, 2010 Ark. App. 691, 2010 Ark. App. LEXIS 728 (Ark. Ct. App. 2010).

Opinion

RITAW. GRUBER, Judge.

1, Charlie Jackson appeals the Workers’ Compensation Commission’s decision of April 30, 2010, denying his claim for the compensability of a back injury he allegedly sustained at his workplace. He contends that the Commission erred in denying his claim based on the statutory presumption of Ark.Code Ann. § 11 — 9— 102(4)(B)(iv) that his injury was caused by the use of illegal drugs. We affirm.

An injury is not compensable if “the 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)(a) (Supp.2009). The phrase “substantially occasioned by the use” means that there must be a direct causal link between use of the substance and the injury. Telling Indus, v. Petty, 2010 Ark. App. 602, 378 S.W.3d 167. The presence of illegal drugs “shall create a rebuttable presumption that the injury or accident was substantially | {.occasioned by the use” of illegal drugs; “to prove compensability, an employee has the burden to prove by a preponderance of the evidence that the illegal drug did not substantially occasion the injury or accident.” Ark.Code Ann. § 11 -9-102(4) (B) (iv) (b), (d) (Supp.2009). “Every employee is deemed by his or her performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee’s body.” Ark.Code Ann. § 11-9-102(4)(B)(iv)(c) (Supp.2009).

Whether the intoxication presumption of Ark.Code Ann. § 11-9-102(4)(B)(iv)(b) is overcome is a question of fact for the Commission to determine. Woodall v. Hunnicutt, 340 Ark. 377, 12 S.W.3d 630 (2000). Our statute does not require that the Commission promulgate drug testing procedures or specify particular types of tests to be used as a precondition to the presumption; nor has our legislature required testing that would show a certain level of illegal drugs, as it has required to invoke the presumption in DWI cases. Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000) (citing Brown v. Alabama Elec. Co., 60 Ark.App. 138, 959 S.W.2d 753 (1998)).

In the present case, the Commission adopted and affirmed the opinion of the administrative law judge. The Commission first found that Jackson’s own admission and a hair-follicle sample revealed the presence of marijuana in his system at the time of the alleged compensable event, thus raising the rebuttable statutory presumption that his injury was substantially occasioned by his use of the illegal drug marijuana.

IsNext, the Commission examined the evidence to decide if Jackson had overcome the statutory presumption. It found that control, balance, and judgment were all factors that contributed to the claimant’s alleged compensable fall on September 24, 2003; that these factors, which could be impaired with use of illegal drugs, had contributed to the injury; and that impairment of the three was attributable to use of illegal drugs. Additionally, the Commission found Jackson’s post-accident actions regarding his drug test to be highly suspicious and found that Mr. Silvey credibly testified about Jackson’s reporting he “could not perform a urine sample” at the first appointment. The Commission concluded that Jackson had not overcome the presumption.

Jackson testified at his hearing before the administrative law judge that the following events occurred on Wednesday, September 24, 2003, during the swing shift.1 He was working as “shot blast” operator of a machine that cleaned water-meter-machine parts by blasting them with shot he described as akin to “millions of little b-bs.” Small parts could be hung onto a “tree” that dragged them into the blasting machine, but 320-pound Jackson sometimes had to physically push larger parts in. His alleged accident occurred when he was handling a 300-to 400-pound coupling: he successfully pushed it into the machine and brought it out to turn it, but it “stalemated” when he tried to push it back in, and b-bs fell all over the floor. Jackson, who as an employee knew to be careful of slipping, indeed slipped on the shot. He felt his right leg “kind of split,” lost his balance, and fell backward against some pallets. He did |4not report the incident that night, and there .were no witnesses.

Jackson testified that he “hurt pretty good” but “kind of blew it off’ because the accident happened shortly before his last break and his 11:00 p.m. quitting time. He told his wife about it but told her he thought he was okay. He soaked in a hot tub, he was hurting, and his wife put “rub” on him. Although on Thursday morning his pain was “kind of severe,” he again blew it off and went to work at 2:30 p.m., limping a bit. He reported the incident to his supervisor, Derrel Walraven, and left work after Walraven filled out an accident report. There was no mention of a drug test at the time, but an appointment with a Dr. Stussy was set up for the next day, a Friday.

Jackson stated that he went to the appointment around 2:30 p.m., waited until he saw a nurse practitioner, and was prescribed muscle relaxers and pain pills. He could not urinate when he was asked to give a urine sample for drug testing, so Smith-Blair’s human resource manager, John Silvey, brought Gatorade to him and sat with him while he drank it. The doctor’s office was closing by then, and Jackson left without producing a sample. Monday morning Silvey instructed Jackson to go to the office of company doctor Mark Gabbie; Jackson arrived there ready to give a urine sample but learned that Silvey wanted a hair sample instead. The hair was taken and Jackson went to his shift; he stayed only about thirty minutes because of pain in his right leg and lower back. About a week after the accident, Silvey informed him that he was being terminated from employment because the hair-follicle test was positive for marijuana.

RJackson denied using marijuana the day of the accident or being under its influence when the accident occurred. He explained that three or four weeks previously, he had unwittingly eaten marijuana-laced brownies that a Chicago cousin brought to a family gathering after their grandmother’s death. Jackson said that Silvey and another supervisor thought this story was “a joke” when he told it to them. Finally, he testified that his leg pain and spasms had never left although he had seen doctors and physical therapists at various times in the last years.

Jackson admitted on cross-examination that there was “very little” marijuana in his system, but referred again to unknowingly eating marijuana-laced brownies. He testified that he was on his wife’s health insurance, had followed her suggestion to see a pain specialist two years after seeing his other doctor, and in 2006 had begun getting social security disability. He said that he had undergone a required physical examination with drug testing before his employment began at Smith-Blair.

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Bluebook (online)
379 S.W.3d 555, 2010 Ark. App. 691, 2010 Ark. App. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-smith-blair-inc-arkctapp-2010.