Arkansas Worker Fails to Rebut Presumption After Positive Drug Test

An Arkansas appellate court affirmed a decision by the state’s Workers’ Compensation Commission that held an injured worker had failed to rebut the presumption that his work-related injury was “substantially occasioned” by the use of illegal drugs [see Ark. Code Ann. § 11-9-102(4)(B)(iv)(a)], where he tested positive for marijuana at a hospital following his injury [Allen v. Employbridge Holding Co., 2020 Ark. App. LEXIS 129 (Feb. 19, 2020)]. The court acknowledged that the worker testified that he had not used marijuana on the day of the accident and a team leader testified that he observed the worker at a meeting prior to the accident and the worker did not appear to be “wobbly” or intoxicated. The court noted other contradictory evidence, however, and said it was for the Commission to decide the issues of fact.

Background

The worker was employed by a temporary staffing agency, and was assigned to a company that utilized him to assist in the movement of large conveyor-belt parts that weighed approximately one ton. Following a lunch break on the day of the accident, the worker’s right thumb and index finger were crushed while the heavy belt was being lowered.

Some Evidence the Worker Wanted to Avoid Drug Test

A co-worker drove the injured worker to the hospital, where he was given morphine, Zofran, and lidocaine. Hospital staff also performed a drug screen, which was required by the employer in the event of an employee injury. The nurse who administered the test told the co-worker that the injured worker informed her that he did not want to take the drug test. The co-worker then went to speak to the injured worker, who once again asked that the hospital not give him the drug test. The test was given nevertheless, and the injured worker tested positive for marijuana and opiates. The employer subsequently terminated him because of the positive drug test.

Did the Worker Overcome the Presumption?

The employer denied the workers’ compensation claim on the basis that the injury was “substantially occasioned” by the worker’s use of drugs. The worker acknowledged that his positive test for marijuana triggered the statutory presumption. He argued, however, that he presented sufficient evidence to rebut that presumption. The Commission disagreed and denied the claim. On appeal, the court indicated that the issue presented to it was the question of whether the worker’s injury was substantially occasioned by the use of illegal drugs.

Contradicting the evidence presented by the injured worker was additional evidence in the form of testimony by another co-worker that he observed the injured worker before the accident and he noticed that the worker’s eyes were bloodshot at the beginning of the shift. A safety supervisor testified that the equipment had never “swayed” in the manner it did just prior to the accident and he, therefore, concluded that the worker had done something improper to cause the movement.

A supervisor also testified that after the accident he received a phone call from a nurse at the hospital indicating that the injured worker did not want the drug test to be performed. The nurse inquired whether the supervisor could “override” the drug test requirement. The supervisor testified that he told the nurse that he could not.

Appellate Court Could Not Reweigh Evidence

The court said on the basis of this testimony, the Commission found that the worker failed to rebut the statutory presumption that the accident was substantially occasioned by the use of illegal drugs. The court agreed. Noting that the Commission found the injured worker not to be credible in his testimony that he had not used marijuana on the day of the accident, the court then noted that the Commission had found other witnesses to have been credible in their own testimony. The court noted that the injured worker was essentially asking the court to reweigh the evidence. It would not do so.