Arkansas Worker Fails to Show Injury Was Not “Substantially Occasioned” by Marijuana Use

Stressing that an Arkansas appellate court must defer to the state Commission’s findings of credibility and its resolution of conflicting evidence, even though it is the administrative law judge — and not the Commission — that actually hears the testimony, a division of the state’s Court of Appeals affirmed a determination that a worker who suffered a partial traumatic amputation of a finger when she attempted to dislodge material from a jammed cutting machine, and who tested positive for marijuana when she was taken to a hospital for emergency treatment, had failed to rebut the presumption that her injury was “substantially occasioned” by her use of the illegal drug [Blair v. American Stitchco, Inc., 2020 Ark. App. LEXIS 48 (Jan. 22, 2020)]. At her hearing, the ALJ found her testimony credible and sufficient to rebut the presumption, but the Commission disagreed.

Background

The employee sustained her traumatic injury just a few days after beginning her employment with the employer. At her hearing, she testified that she received only a few minutes “training” from a co-worker prior to being given her assignment. She further testified that she felt under pressure to maintain production in her department. A portion of the employee’s finger was severed by a cutting machine as she sought to clear a bit of jammed material.

A urine test given to the employee at the emergency department following her injury revealed the presence of marijuana metabolites, with an initial test level of “50 ng/mL. The employee later admitted having used marijuana on a “sporadic” basis over some thirty years, but stated that such use took place only on weekends. She testified that her last exposure to, or use of, marijuana had been at least four weeks prior to the accident and that she was shocked to learn of the presence of it in her urine.

At the hearing, she also testified to the lack of training, to the fact that subsequent to her injury — but before the results of the drug test had come back from the hospital — the employer had offered her other work that could be performed with one hand. She contended, therefore, that it was clear that her behavior at the time of the injury was unimpaired. Otherwise, she said she wouldn’t have been offered other work.

ALJ’s & Commission’s Findings

The ALJ found that the employee was a credible witness. Moreover, the ALJ found the employee had successfully rebutted the statutory presumption created by her positive drug screen, that there was no direct, causal link between the ingestion of marijuana and her injury, and that the employee, therefore, had proved that she sustained an injury to her left index finger arising and in the course of the employment. The Commission reversed.

Appellate Court

Referring to the Arkansas statutory scheme, the court initially observed that pursuant to Ark. Code Ann. § 11-9-102(4)(B)(iv), a “compensable injury” did not include an injury where the accident was “substantially occasioned” by, inter alia, the use of illegal drugs and that the presence of such drugs creates a rebuttable presumption that the injury or accident was substantially occasioned by the use of such drugs. It added that where the presence of drugs had been established, an employee was not be entitled to compensation under the statute unless he or she proved by a preponderance of the evidence that the illegal drugs (or other substance) did not substantially occasion the injury or accident.

Commission Found the Employee’s Rebuttal Inadequate

Important to the case was the fact that although the ALJ found the employee to be credible, the Commission found her not to be a credible witness. As an aside, practitioners in many states will bristle at this finding, since the ALJ, and not the Commission, heard the employee testify. But in Arkansas and some other states (e.g., North Carolina), it is the Commission, and not the hearing officer, who is charged with determining credibility [see Larson’s Workers’ Compensation Law, § 130.03[3]].

The appellate court observed that the Commission found that the evidence before it did not corroborate the employee’s testimony that she had not smoked marijuana for at least a month or more prior to commencing her employment with the employer. The court added that in Arkansas, a claimant’s testimony is never considered to be uncontroverted. Although the employee here testified as to her lack of marijuana use, she offered no scientific or medical expert testimony to explain if or how the level of marijuana metabolites in her system might have affected her judgment and actions with respect to the accidental injury.

Rebutting the Presumption Was Not Enough

The court indicated that although the employee had come forward with some evidence that tended to rebut the presumption that her injury was “substantially occasioned” by her use of drugs, under the terms of the statute, a mere rebuttal was insufficient. The burden was on the employee to prove that her injuries were not occasioned by her drug use. The Commission had found her evidence insufficient to convince it and the Commission’s determination would stand.