Miguel Amador, Deceased v. Amador Contracting and AIG Claim Services, Inc.

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ca03-892

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISIONS III and IV

CA03-892

May 26, 2004

MIGUEL AMADOR, Deceased AN APPEAL FROM ARKANSAS

APPELLANT WORKERS' COMPENSATION

COMMISSION [E910521]

V.

AMADOR CONTRACTING

AIG CLAIM SERVICES CONCURRING OPINION ON DENIAL

APPELLEE OF REHEARING

Wendell L. Griffen, Judge

I agree that we should deny appellant's petition for rehearing because the claimant, Miguel Amador, was not performing employment services when he wrecked his employer's vehicle. The claimant deviated from his employment services when he inexplicably moved behind the wheel of a company truck and began to drive away while his supervisor was relieving himself along the side of the road. However, I write separately to express my concern with the Workers' Compensation Commission's near-application of the notions of comparative fault or contributory negligence as part of its employment-services analysis and because I believe the Commission erred in finding that the accident was substantially occasioned by use of an illegal drug.

It is uncontroverted that the claimant died from injuries sustained when the truck he was operating crashed; that he was not a licensed operator of the truck; and that he did not have his supervisor's permission to operate the truck at the time of the accident. Nonetheless, the Commission's consideration of these factors in its employment-services analysis comes dangerously close to injecting notions of comparative fault or contributory negligence into this workers' compensation claim. However, an employee's entitlement to workers' compensation benefits has never been subject to the defenses of contributory negligence or other fault-based tort defenses.

In addition, I write separately because I disagree with the Commission's alternative finding that the claimant "failed to rebut the rebuttable presumption that his accident was substantially occasioned by the use of an illegal drug, pentobarbital." In short, I believe the claimant was not required to rebut the presumption because there was no proof that pentobarbital is an illegal drug, for purposes of denying workers' compensation benefits. The Commission noted that the term "illegal drug" is not defined under our workers' compensation statutes. Therefore, the Commission superimposed onto the workers' compensation scheme the definition of "controlled substance" under Ark. Code Ann. § 5-64-101(d) (Repl. 1997), as supplemented under the schedule of controlled substances promulgated by the Director of the Arkansas Department of Health.

Our General Assembly was aware of the definition of "controlled substance" under § 5-64-101(d) when it chose to exclude from the definition of compensable injury under § 11-9-102(4)(B)(iv)(b)(Supp. 2001) an injury substantially occasioned by the use of illegal drugs or by prescription drugs used in contravention of physician's orders. If the General Assembly wanted to define "illegal drug" to mean the same thing as a "controlled substance" under § 5-64-101(d), it could have done so. But it did not do so. Accordingly, I cannot sanction the Commission's attempt to graft the definition of "controlled substances" under the criminal code onto the definition of "illegal drug" under workers' compensation law because it may restrict or expand the definition of illegal drug in a manner not intended by the legislature.