Prock v. Bull Shoals Landing

390 S.W.3d 78, 2012 Ark. App. 47, 2012 WL 76072, 2012 Ark. App. LEXIS 113
CourtCourt of Appeals of Arkansas
DecidedJanuary 11, 2012
DocketNo. CA 11-175
StatusPublished
Cited by6 cases

This text of 390 S.W.3d 78 (Prock v. Bull Shoals Landing) 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
Prock v. Bull Shoals Landing, 390 S.W.3d 78, 2012 Ark. App. 47, 2012 WL 76072, 2012 Ark. App. LEXIS 113 (Ark. Ct. App. 2012).

Opinions

DOUG MARTIN, Judge.

|T On November 1, 2007, in his employment for appellee Bull Shoals Landing, appellant Greg Prock was using an acetylene torch to cut the top off of a fifty-five-gallon barrel that had previously contained marine oil when the barrel exploded and caused a fire that seriously injured Prock and his co-worker, Matt Edmisten. Prock and Edmisten were taken to the hospital where they both tested positive for illegal drugs.1 Prock appeals the Workers’ Compensation Commission’s opinion finding that Prock failed to rebut the legal presumption that his accident and injury at work were substantially occasioned by his use of marijuana. On |2appeal, Prock argues that the Commission’s decision is not supported by substantial evidence and that the workers’ compensation system is unconstitutional.2 We affirm.

Steve Eastwold, co-owner of Bull Shoals Landing, testified that, on November 1, 2007, he was at the marina’s shop when he saw Prock and Edmisten around 8:30 a.m. in Prock’s black Jeep coming from a road that led into town. Eastwold stated that he “hollered” at the men to stop but they continued past him. Prock, who was driving, suddenly stopped and backed up the Jeep, and Eastwold asked the two men to get a couple of empty oil barrels from storage and remove the tops from them. Eastwold testified that he told Prock and Edmisten, with respect to the task, “It doesn’t have to be [done] today.” According to Eastwold, there was no work that Prock and Edmisten could have been performing from the direction they had come in Prock’s personal vehicle. Eastwold testified that he was not close enough to Prock and Edmisten to determine whether they were under the influence of drugs, but he recalled that “[t]hey didn’t make a lot of eye contact” and that neither man looked at him “straight on.”

Eastwold testified that, in the past, he showed Prock how to use a pneumatic air chisel to cut the tops off of barrels. East-wold stated that the air chisel moves so slowly that it does not generate sparks and that it was the only way he knew to safely remove barrel tops. [ oEastwold testified that he had never seen Prock use an acetylene torch to cut the barrel tops and had never approved that method.

Roger Williams, a mechanic at Bull Shoals Landing, testified that he was on a houseboat on the lake with co-worker Mike Didway when he heard an explosion around 9:40 a.m. and saw what he described as a “huge fireball with two guys in it.” According to Williams, the fire from the explosion briefly engulfed a fifty-foot houseboat at the dock. Williams testified that Prock and Edmisten were “pretty much totally on fire.” Williams testified that he did not see Prock that morning before the accident occurred. Williams stated that he had never seen employees at Bull Shoals Landing cut the tops off of oil barrels using an acetylene torch, but he had previously witnessed employees cut the tops off of barrels using an air chisel.

Mike Didway, a maintenance worker, testified that he saw Prock and Edmisten that morning in the office where employees typically gathered to drink coffee. Didway testified that he was certain he saw Prock at approximately 7:00 a.m. and that he spoke with Prock “just in passing.” Didway stated that Prock did not appear to be intoxicated at that time. Didway testified that he did not see Eastwold around the dock that morning. Didway stated that he had seen Prock cut oil barrels using an acetylene torch on at least one previous occasion. Didway stated that Prock was not the only welder at Bull Shoals Landing but that Prock was the only employee he had ever seen cut the tops off of barrels using an acetylene torch.

|4Matt Edmisten testified that, at East-wold’s request, he and Prock drove to the top of a hill where old oil barrels were stored, that Prock climbed over some trash and threw two barrels to him, and that he put the barrels into the back of a truck owned by the employer. He and Prock then came down from the hill and stopped next to a houseboat where the welding trailer was located. Prock cut the top off the first barrel, and when they moved to the second barrel, Edmisten held the top of the barrel with channel locks to prevent it from falling into the barrel “where there is usually a little bit of oil.” Prock was six to eight inches into the cut when the barrel exploded, and Edmisten felt “instant heat on [his] hands and [his] face.” Ed-misten testified that his “first reaction” was to jump into the lake. When Edmis-ten emerged from the water, he heard Prock screaming and instructed him to do the same in order to extinguish the flames, which Prock did.

Edmisten further testified that he had seen Prock cut barrels with an acetylene torch many times before the accident occurred and that they had never been cautioned not to open barrels in that manner. While Edmisten initially stated that it was reasonable to use an acetylene torch to open oil barrels because that was the way he “was always told to cut them,” he later testified that no one had told him how to cut the tops off the barrels. According to Edmisten, other employees had cut the tops off of barrels with an acetylene torch and, although he identified a couple of employees at Bull Shoals Landing, those individuals were not present at the hearing to testify. Edmisten agreed that pictures of the barrel that exploded depicted the barrel’s “bunghole” still capped and admitted that he and Prock “probably” did not remove the cap before cutting the barrel.

| ¿Edmisten testified that he “smoked weed maybe once a year” and that he had smoked marijuana a couple of weeks prior to the explosion. Edmisten denied, however, being in Prock’s personal vehicle on the morning of the accident, as Eastwold testified. Edmisten testified that Prock did not appear to be impaired that morning and that he had never seen Prock at work when he appeared to be intoxicated or under the influence of drugs. Edmisten stated, “[Prock] did not act any different that morning than he always did.” Edmis-ten denied telling Eastwold, upon his doctor’s releasing him to return to work following the accident, that he could not pass a drug test.

According to Prock, his employment at Bull Shoals Landing involved welding, maintenance, and general labor. Prock testified that he arrived at work between 7:00 and 8:00 a.m. on the morning of the accident and walked down to the office at the main dock to drink coffee with the others. Prock stated that, on his way out of the dock area and before he had begun any work that day, he encountered East-wold, who asked him and Edmisten to get a couple of barrels and cut the tops off of them. According to Prock, he and Edmis-ten had not been anywhere together that morning in Prock’s personal vehicle.

Prock testified that he selected two barrels after tilting them to determine that nothing was inside them and that he then threw the barrels to Edmisten. Prock stated that he did not read the warning label on the barrels because it was common knowledge that the barrels contained marine oil at one time. He testified that, when he cut the tops off of barrels in the past, he did not look inside the barrels because the only thing they might contain is “a little bit of oil.” Prock explained that oil will burn, but not explode. Prock acknowledged that a | ¿police report indicated that the area around the explosion smelled like gasoline, but Prock insisted that he did not smell any gasoline before the accident.

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Related

Prock v. Bull Shoals Boat Landing
2014 Ark. 93 (Supreme Court of Arkansas, 2014)
Strother v. LaCroix Optical
2013 Ark. App. 719 (Court of Appeals of Arkansas, 2013)
Edmisten v. Bull Shoals Landing
388 S.W.3d 416 (Court of Appeals of Arkansas, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
390 S.W.3d 78, 2012 Ark. App. 47, 2012 WL 76072, 2012 Ark. App. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prock-v-bull-shoals-landing-arkctapp-2012.