ERC Contractor Yard & Sales et al. v. Lonnie Robertson

ERC CONTRACTOR YARD & SALES and Liberty
Mutual Insurance v. Lonnie ROBERTSON

CA 97-802                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
               Opinion delivered February 18, 1998


1.   Workers' compensation -- rebuttable presumption -- alcohol or drugs --
     claimant must prove injury not substantially occasioned by. -- Prior to
     1993, the burden was upon the employer to prove that a
     claimant's injury was the result of intoxication or drug use;
     Act 796 of 1993 shifted the burden to the claimant by creating
     a rebuttable presumption that an injury was substantially
     occasioned by an intoxicant if one is found in the body; now,
     if the claimant is found to have alcohol or drugs in his body
     after an injury, he must prove by a preponderance of the
     evidence that his injury was not substantially occasioned by
     the alcohol or drugs.

2.   Workers' compensation -- standard of review -- substantial evidence
     defined. -- When reviewing a finding of fact made by the
     Workers' Compensation Commission, the appellate court affirms
     if the Commission's decision is supported by substantial
     evidence; substantial evidence is such relevant evidence as a
     reasonable mind might accept as adequate to support a
     conclusion. 

3.   Workers' compensation -- rebuttable presumption -- whether overcome is
     question of fact for Commission. -- Whether a rebuttable presumption
     is overcome by the evidence is a question of fact for the
     Workers' Compensation Commission to determine. 

4.   Workers' compensation -- medical evidence -- Commission's duty. -- The
     Workers' Compensation Commission's duty is to weigh medical
     evidence as it does any other evidence.

5.   Workers' compensation -- low blood-alcohol level sufficient to rebut
     presumption and to prove injury not substantially occasioned by alcohol. -
     -  Because the results of the blood-alcohol-content testing
     revealed an amount of alcohol in appellee's blood, however
     small, the appellate court concluded that there was a presence
     of alcohol in appellee's blood; notwithstanding, the appellate
     court found that there was substantial evidence in the record
     supporting the Commission's finding that such a low blood-
     alcohol level was sufficient to rebut the presumption and to
     prove that appellee's injury was not substantially occasioned
     by alcohol.

6.   Workers' compensation -- seizure resulted from alcohol withdrawal -- injury
     not substantially occasioned by use of alcohol -- no alcohol on day of
     injury. -- Appellee's employment and his placement on
     scaffolding twelve to fifteen feet above ground increased the
     effects of his fall, thereby making the fall compensable;
     though appellee's seizure was the result of alcohol withdrawal
     related to his long-term use of alcohol, the appellate court
     could not find that appellee's injury was substantially
     occasioned by the use of alcohol where his employer and
     girlfriend corroborated his testimony that he had not had
     alcohol on the date of the injury.

7.   Workers' compensation -- substantial evidence supported finding regarding
     appellee's hourly earnings. -- The Workers' Compensation Commission
     has the duty of determining the credibility of witnesses;
     where the Commission afforded greater weight to the employer's
     testimony and appellee's deposition rather than to appellee's
     testimony, the appellate court concluded that substantial
     evidence supported the Commission's finding regarding
     appellee's hourly earnings.


     Appeal from Arkansas Workers' Compensation Commission;
affirmed.
     Ledbetter, Hornberger, Cogbill, Arnold & Harrison, by: James
A. Arnold, II, and Rebecca D. Hattabaugh, for appellants.
     Rush, Rush & Cook, by: David L. Rush and Craig L. Cook, for
appellee.

     Olly Neal, Judge.
     Lonnie Robertson was employed by appellant as a laborer.  On
September 18, 1995, appellee was injured when he fell approximately
ten to fifteen feet from scaffolding while at work.  Appellee was
taken to the hospital where he was hospitalized and treated for his
injuries.  Appellee filed a claim for workers' compensation
disability benefits for injuries that he sustained as a result of
the fall.  Appellants controverted appellee's claim for benefits
and asserted that his injuries were substantially occasioned by the
use of alcohol and were therefore excluded from coverage under the
workers' compensation act.  The administrative law judge found that
appellee's fall was not substantially occasioned by the use of
alcohol.  The Commission adopted the ALJ's opinion as its own and
affirmed the order.  It is from the Commission's decision that
appellants bring the present appeal.  
       Appellants urge us to reverse the Commission's order on the
grounds that the Commission incorrectly determined that no alcohol
was present in appellee's system at the time of his accident and
that his injury was not substantially occasioned by the use of
alcohol.
     Dr. MacDade examined appellee on the day he was brought to the
hospital emergency room.  Dr. MacDade's notes of August 18, 1995,
indicate that appellee had a faint smell of alcohol on his breath. 
Dr.  MacDade's notes of September 19, 1995, indicate that appellee
had a "fruitescent" substance on his breath.  Appellee's blood-
alcohol content was measured as being less than .01%.  Appellee
also testified that he had not had a drink on the date in question.
     Prior to 1993, the burden was upon the employer to prove that
a claimant's injury was the result of intoxication or drug use. 
Act 796 of 1993 shifted the burden to the claimant by creating a
rebuttable presumption that an injury was substantially occasioned
by an intoxicant if one is found in the body.  Morrilton Manor v.
Brimmage, 58 Ark. App. 252, 952 S.W.2d 170 (1997).  Now, if the
claimant is found to have alcohol or drugs in his body after an
injury, he must prove by a preponderance of the evidence that his
injury was not substantially occasioned by the alcohol or drugs. 
Id.   
     Appellants contend that the Commission erred in finding that
no alcohol was present in appellee's system at the time of the
accident.  In making its decision the Commission wrote:
          Claimant's initial physician noted the smell of
          alcohol on the claimant when claimant was brought
          in for treatment.  However, the alcohol blood
          test subsequently performed revealed that
          claimant's alcohol level was less than .01%.  We
          find this does not establish the presence of 
          alcohol so as to give rise to said presumption.
          Further, if the test did establish the presence of
          alcohol, the low blood alcohol level would be 
          sufficient to prove that the injury was not       
          substantially occasioned by alcohol.
     When reviewing a finding of fact made by the Workers'
Compensation Commission, we affirm if the Commission's decision is
supported by substantial evidence.  Weaver v. Whitaker Furniture
Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996).  Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.  Id.  Whether a
rebuttable presumption is overcome by the evidence is a question of
fact for the Commission to determine.  Id.  The Commission's duty
is to weigh medical evidence as it does any other evidence.  Id.
     The legislature has not quantified the level of alcohol that
need be present in the blood to give rise to the presumption that
an injury is substantially occasioned by the use of alcohol.  The
Arkansas courts have been admonished to defer to the legislature
when such matters need to be addressed.  See Ark. Code Ann.  11-9-
1001  (Repl. 1996).   However, because the results of the blood-
alcohol content testing revealed an amount of alcohol in appellee's
blood, however small, we agree with appellants that there was a
presence of alcohol in appellee's blood.  Notwithstanding, we find
that there is substantial evidence in the record that supports the
Commission's finding that such a low blood-alcohol level was
sufficient to rebut the presumption and prove that appellee's
injury was not substantially occasioned by alcohol.
     This leads us to the remaining question, i.e., does appellee's
long-term use of alcohol disqualify him from receiving workers'
compensation disability benefits?  The gravamen of appellants'
argument is that appellee's long-term alcohol use resulted in an
alcohol withdrawal seizure that caused his fall, and that appellee
would not have suffered from an alcohol withdrawal seizure if not
for his alcohol use.
     With regard to this issue the Commission employed the
following rationale:
          The medical records indicate that the claimant's
          physicians believe he suffered an alcohol with-
          drawal seizure.  Based upon those opinions we find
          that the claimant suffered a fall which was related
          to alcohol withdrawal.  As such, the claimant's 
          fall was caused by a condition which was personal in
          nature and has been defined as an idiopathic fall.
          Injuries from idiopathic falls do not arise out of
          the claimant's employment unless the employment
          contributed to or aggravated the risk or the injury.
          While the fall would normally not be compensable
          because it is personal in nature, in this case,
          claimant was placed on a scaffold 12 to 15 feet
          off the ground thereby increasing the effects of 
          his fall.  Therefore, claimant's idiopathic fall
          is compensable.
     We agree with the Commission's rationale.  Appellee's treating
physicians opined that appellee's seizure was the result of alcohol
withdrawal.  Appellee's employment and his placement on scaffolding
twelve to fifteen feet above ground increased the effects of the
fall, thereby making the fall compensable.  Though the seizure
appellee suffered was the result of his long-term use of alcohol,
we cannot find that appellee's injury was substantially occasioned
by such use of alcohol, where his employer and girlfriend
corroborated his testimony that he had not had alcohol on the date
of the injury.
     In his cross-appeal, appellee argues that there is not
substantial evidence to support the Commission's finding that he
was making $5 an hour.  We disagree.  Appellee testified that he
was to be paid $6 an hour.  On cross-examination, appellee
acknowledged that he had stated during his deposition that he
earned $5 per hour.  Appellee did state that he misunderstood the
question and thought that the question referred to his previous
employment with appellant.  Appellee's employer testified that
appellee was to be paid at a rate of $5 an hour.  The Commission
has the duty of determining the credibility of the witnesses. 
Here, the Commission obviously afforded greater weight to the
employer's testimony and appellee's deposed testimony.  We conclude
that substantial evidence supports the Commission's decision.
     Affirmed.
     Stroud, J., agrees.
     Rogers, J., concurs.

     Judith Rogers, Judge, concurring.  I concur in the result of this
case but write separately because I am unwilling at this time to
state that a blood-alcohol level of less than .01% is sufficient
proof of the presence of alcohol so as to give rise to the
rebuttable presumption that appellant's injury was substantially
occasioned by the use of alcohol.  It is the Commission's duty to
find the facts, and in this case, the Commission found that a
blood-alcohol level of less than .01% did "not establish the
presence of alcohol as to give rise to said presumption."  As in
the two recent cases of Graham v. Turnage Employment Group, 60 Ark.
App. 150, ___ S.W.2d ___ (1998) and Brown v. Alabama Electric Co.,
60 Ark. App. 138, ___ S.W.2d ___ (1998), the Commission had the
duty and authority to find whether there was the presence of drugs
in the claimants' systems.  The only difference between this case
and those cited is the fact that in the cited cases the Commission
found that there was evidence to establish the presence of drugs in
the claimants' systems.  The legislature chose not to include
guidelines as to the minimal level of intoxicants that must be
present in one's system.  Because of this lack of guidance, I am
more persuaded that it is the Commission's place to determine the
fact question of what constitutes "presence."  I believe, however,
that the legislature should establish guidelines setting minimum
levels of intoxicants that would trigger the rebuttable presump-
tion.  
       Nonetheless, the majority opinion agrees that the Commission
found the rebuttable presumption was overcome, and I agree with the
Commission's award of benefits.  The evidence supports the
Commission's finding that appellant suffered an idiopathic fall,
and I cannot disagree.SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
                          April 8, 1998

                       Divisions I and II

                                                   ___ S.W.2d ___


Workers' compensation -- substantial evidence supported Commission's decision. 
     -- Substantial evidence supported the Workers' Compensation
     Commission's decision that appellee's fall was not
     substantially occasioned by the use of alcohol and its finding
     that appellee suffered a compensable idiopathic fall.

     Appeal from the Arkansas Workers' Compensation Commission;
Supplemental Opinion Denying Rehearing.
     James A. Arnold II, for appellant.
     Craig Cook, for appellee.

     Judith Rogers, Judge.
     We write to emphasize that appellantþs argument in support of
his petition for rehearing is misplaced and not a correct statement
of our holding in this case.  In our majority opinion, we found
that there was substantial evidence to support the Commissionþs
decision that appelleeþs fall was not substantially occasioned by
the use of alcohol.  The evidence presented and relied on by the
Commission and this court was  appelleeþs testimony that he had not
had alcohol on the date of the injury; appelleeþs employer and
girlfriendþs corroboration of appelleeþs testimony; the low level
of alcohol in appelleeþs system; and the medical evidence that
showed appellee was suffering from alcohol withdrawal.  This
provided substantial evidence to support the Commissionþs decision,
and its decision was not supported only by appelleeþs low blood
alcohol level.  In addition, appelleeþs alcohol withdrawal was
personal in nature, and his employment placed him on a scaffold
twelve to fifteen feet off the ground, increasing the effects of
his fall.  These facts support the Commissionþs finding that
appellee suffered a compensable idiopathic fall.
     Robbins, C.J., Bird, Neal, and Griffen, JJ., agree.