Weld Rite, Inc. v. Dungan

423 S.W.3d 613, 2012 Ark. App. 526, 2012 WL 4476271, 2012 Ark. App. LEXIS 645
CourtCourt of Appeals of Arkansas
DecidedSeptember 26, 2012
DocketNo. CA 12-226
StatusPublished
Cited by4 cases

This text of 423 S.W.3d 613 (Weld Rite, Inc. v. Dungan) 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
Weld Rite, Inc. v. Dungan, 423 S.W.3d 613, 2012 Ark. App. 526, 2012 WL 4476271, 2012 Ark. App. LEXIS 645 (Ark. Ct. App. 2012).

Opinion

JOHN B. ROBBINS, Judge.

| ^Appellant Weld Rite, Inc., appeals the award of benefits for a left-wrist injury sustained by appellee Mark Dungan in a fall from a ladder at work on the afternoon of January 28, 2008. Weld Rite contends that this injury would be compensable had the injury not been substantially occasioned by Dungan’s use of illegal drugs (marijuana) and alcohol. The claimant prevailed before the administrative law judge (ALJ), and on de novo review by the Workers’ Compensation Commission, it affirmed the award of benefits.1 Weld Rite appeals, asserting that the ALJ and Commission erred in finding that the presumption of non-compensability was not triggered in this instance, and erred in finding that the evidence did not establish by a preponderance that the injury was substantially occasioned by Dungan’s use of illegal drugs or alcohol. We affirm the ALJ’s and Commission’s decisions.

|gWe review decisions of the Workers’ Compensation Commission to determine whether there is substantial evidence to support it. Rice v. Georgia Pacific Corp., 72 Ark.App. 148, 85 S.W.3d 828 (2000). Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark.App. 146, 41 S.W.3d 822 (2001). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. Geo Specialty Chem. v. Clingan, 69 Ark.App. 369, 13 S.W.3d 218 (2000). It is the Commission’s province to weigh the evidence and determine what is most credible. Minn. Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999); Buford v. Standard Gravel Co., 68 Ark.App. 162, 5 S.W.3d 478 (1999). It is the responsibility of the Commission to draw inferences when the testimony is open to more than a single interpretation, whether controverted or uncontroverted, and when it does so, its findings have the force and effect of a jury verdict. Gaither Appliance v. Stewart, 103 Ark.App. 276, 288 S.W.3d 690 (2008). The issue on appeal is not whether we would have reached a different result or whether the evidence would have supported a contrary conclusion; we affirm if reasonable minds could reach the Commission’s conclusion. Sharp County Sheriffs Dep’t v. Ozark Acres Improvement Dist., 75 Ark.App. 250, 57 S.W.3d 764 (2001).

The parties entered into certain stipulations prior to the administrative hearing and reiterated them at the beginning of the hearing. One stipulation was that the claimant’s wrist injury would be compensable had it not been substantially occasioned “by illegal use |sof drugs.” During the hearing, the employer’s attorney clarified that the illegal drug was marijuana and added “potentially alcohol” as a causative factor.

The testimony revealed that appellee Dungan, a man in his forties, worked for appellant, a metal fabrication company, among about thirty-five other employees. Dungan stated that he was at work at approximately 3:00 p.m. on January 28, 2008, hanging large sheets of metal for a drop ceiling. He was using scaffolding and a ladder to reach the necessary heights, and Ray Young was present as the foreman that day. Dungan testified that he was drilling a screw into sheet metal above his head when he felt the ladder give way. Dungan said that the ladder was defective because the “feet” at the bottom of this ladder were bent and twisted, about which he had complained numerous times to Young and the company owner, Billy Shavers. He said he was told only to be careful while using the equipment.

Dungan said he hit his head and left wrist when he hit the floor.2 He reported this to the main office, and another employee, Debbie Young, drove him to a local clinic. The clinic sent them immediately on to Fulton County Hospital due to the severity of his injury. At the hospital, he was given pain-medication injections, a wrist splint, and a prescription for pain medication. He was discharged and told to report to the hospital in Batesville the following day, leading to orthopedic surgery in February 2008 to reset his wrist with a steel plate and a subsequent carpal-tunnel-release surgery in March 2008. He missed some weeks of work due to the surgeries. Dungan denied that anyone ever asked him to take a drug test 14or that he refused to take one. Dungan said he believed he would have passed a drug test had he taken one that day.

Dungan said he did not drink or do drugs that day or the day before, although he admitted to drinking a six-pack of beer over the weekend. Dungan stated that his most recent marijuana use prior to his work injury was two weeks or more before he fell from the ladder. Dungan frankly admitted that he had used drugs sporadically through the years, specifically marijuana and Xanax, and he even admitted smoking marijuana on the Weld Rite premises with other employees in April or May 2008, but he denied ever having used drugs on a daily basis.

Dungan testified that he experienced a difficult divorce from his ex-wife in approximately 2009. He claimed that his ex-wife cooked methamphetamine and abused multiple substances — Xanax, various prescription pain medications, methamphetamine, marijuana, and whiskey. He also acknowledged being fired a year or so after this accident because he came to work “hung over,” but he was rehired about three weeks later.

Dungan’s ex-wife testified that she was still living with Dungan at the time of the work accident and that he smoked marijuana on a daily basis. She said she smoked marijuana with Dungan before he went to work that morning, but she could not recall the date of his accident. She said he typically left for work at about 6:30 a.m. She testified that Dungan told her that he was glad that he was not drug-tested because he would have been positive for marijuana and most likely methamphetamine. She agreed that she lost custody of their |,children in November 2009 due to her own drug use, but she said she was presently in outpatient treatment.

Billy Shavers, owner of Weld Rite, testified that his workers’ compensation insurance coverage had lapsed by the time of this work accident. Shavers denied ever being told that this particular ladder was defective; he denied it being defective. Shavers said Dungan was performing excellent work that day and did not appear to be intoxicated when he saw him that morning or mid-morning. Shavers claimed that Dungan refused to take a drug test at the first clinic where he was taken, but he could not recall who told him about any drug-test refusal. Shavers implied that other employees told him that Dungan was “on something.”

Debbie Young, wife of Ray Young, testified that she was working in the Weld Rite office that day and was the one who drove Dungan to the clinic and then the hospital.

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Bluebook (online)
423 S.W.3d 613, 2012 Ark. App. 526, 2012 WL 4476271, 2012 Ark. App. LEXIS 645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weld-rite-inc-v-dungan-arkctapp-2012.