Arkansas Court Affirms Denial of Benefits; Explosion Caused By Worker’s Marijuana Use
In a split decision, the Arkansas Court of Appeals yesterday affirmed a finding by the state’s Workers’ Compensation Commission that an injured worker failed to rebut the statutory presumption that his accident and resulting injury at work were substantially occasioned by his use of marijuana [Prock v. Bull Shoals Landing, 2012 Ark. App. 47 (Jan. 11, 2012)]. The worker and a co-worker were seriously injured when the worker used an acetylene torch, rather than a pneumatic air chisel, to remove the tops from two barrels that had earlier contained oil. The flame from the torch apparently ignited remnants of the oil in the barrel and caused a large explosion, engulfing the workers in flames. A blood test revealed that the worker had benzodiazepine, opiates, and marijuana in his system. Recognizing that emergency hospital personnel administered certain medications to the worker at the scene of the accident, the Commission focused only on the worker’s apparent use of marijuana. Following a hearing, an administrative law judge determined that the worker credibly testified he had not smoked marijuana on the day of the explosion and that the explosion was caused by the worker’s attempt quickly to finish a task and was not the result of impaired judgment caused by marijuana use. The commission disagreed, discrediting the worker’s testimony.
The appellate court observed that there had been substantial conflict among the testimony offered by the parties. A co-owner of the employer testified that he had earlier told the worker not to use an acetylene torch to remove the barrel tops, that the action of the pneumatic air chisel was sufficiently slow so as to reduce the chance of sparks. Several co-workers testified, however, that the worker had been seen on other occasions removing the tops with the torch. The worker himself testified that he had never been warned about the dangers of using the torch around the empty barrels.
The worker admitted in his testimony that he smoked marijuana during the evenings after work, often as many as three or four times a week. He stated that he had stopped his marijuana use two weeks prior to the accident, however, because he had received a job offer from a welding shop in a nearby town and he wanted to be certain that he could pass a drug test.
The Commission ruled that the worker’s denial that he smoked marijuana on the day of the explosion was not sufficient to rebut the presumption that his injury was substantially occasioned by his use of marijuana [see Ark. Code Ann. § 11-9-102(4)(B)(iv) (Supp. 2007)] because his testimony was “filled with inconsistencies and unexplained evidence.”
The appellate court observed that prior to 1993, it was the employer’s burden to prove that an employee’s accident was caused by intoxication or drug use. After a 1993 amendment to the statute, however, employers are no longer required to produce evidence that a worker was impaired if, after the injury, the worker tests positive for drug use. The court reasoned that once the presumption arose, as it did here, it was up to the worker to prove that the explosion and injury were not substantially occasioned by the marijuana use. While the worker testified he had not used drugs, there was evidence to support the Commission’s finding that his testimony was not credible. Once that decision as to credibility had been made by the Commission, the appellate court was bound as well.
Judge Abramson, joined by Judges Vaught and Hoofman dissented. Judge Hart concurred in the dissent. Judge Abramson indicated that while the worker’s testimony as to his alleged marijuana use may not have been rebutted, that was not the real issue. The true issue was the lack of evidence that the worker was impaired or that any impairment “caused–‘substantially occasioned’–the explosion. According to the judge, the Commission erred by ending its analysis with the finding of drug use in the case. There still had to be be a direct causal link between the use of the drugs (or alcohol) and the injury. The explosion was caused by the use of the dangerous method–the use of the torch, rather than the pneumatic tool. The ingestion of drugs in and of itself was not a sufficient basis for denying benefits if there was no evidence that the drug use was the direct cause of the accident.