Jackson v. Smith Blair, Inc.
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Cite as 2010 Ark. App. 691
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CA10-539
Opinion Delivered OCTOBER 20, 2010
CHARLIE L. JACKSON
APPELLANT
V.
SMITH BLAIR, INC.
and TRAVELERS INDEMNITY
COMPANY
APPELLEES
APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
COMMISSION
[F506113]
AFFIRMED
RITA W. GRUBER, Judge
Charlie Jackson appeals the Workers’ Compensation Commission’s decision of April
30, 2010, denying his claim for the compensability of a back injury he allegedly sustained at
his workplace. He contends that the Commission erred in denying his claim based on the
statutory presumption of Ark. Code Ann. § 11-9-102(4)(B)(iv) that his injury was caused by
the use of illegal drugs. We affirm.
An injury is not compensable if “the accident was substantially occasioned by the use
of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.”
Ark. Code Ann. § 11-9-102(4)(B)(iv)(a) (Supp. 2009). The phrase “substantially occasioned
by the use” means that there must be a direct causal link between use of the substance and the
injury. Telling Indus. v. Petty, 2010 Ark. App. 602, ___ S.W.3d ___. The presence of illegal
drugs “shall create a rebuttable presumption that the injury or accident was substantially
Cite as 2010 Ark. App. 691
occasioned by the use” of illegal drugs; “to prove compensability, an employee has the burden
to prove by a preponderance of the evidence that the illegal drug did not substantially
occasion the injury or accident.” Ark. Code Ann. § 11-9-102(4)(B)(iv)(b), (d) (Supp. 2009).
“Every employee is deemed by his or her performance of services to have impliedly consented
to reasonable and responsible testing by properly trained medical or law enforcement
personnel for the presence of any of the aforementioned substances in the employee’s body.”
Ark. Code Ann. § 11-9-102(4)(B)(iv)(c) (Supp. 2009).
Whether the intoxication presumption of Ark. Code Ann. § 11-9-102(4)(B)(iv)(b) is
overcome is a question of fact for the Commission to determine. Woodall v. Hunnicutt, 340
Ark. 377, 12 S.W.3d 630 (2000). Our statute does not require that the Commission
promulgate drug testing procedures or specify particular types of tests to be used as a
precondition to the presumption; nor has our legislature required testing that would show a
certain level of illegal drugs, as it has required to invoke the presumption in DWI cases.
Flowers v. Norman Oaks Constr. Co., 341 Ark. 474, 17 S.W.3d 472 (2000) (citing Brown v.
Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753(1998)).
In the present case, the Commission adopted and affirmed the opinion of the
administrative law judge. The Commission first found that Jackson’s own admission and a
hair-follicle sample revealed the presence of marijuana in his system at the time of the alleged
compensable event, thus raising the rebuttable statutory presumption that his injury was
substantially occasioned by his use of the illegal drug marijuana.
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Next, the Commission examined the evidence to decide if Jackson had overcome the
statutory presumption. It found that control, balance, and judgment were all factors that
contributed to the claimant’s alleged compensable fall on September 24, 2003; that these
factors, which could be impaired with use of illegal drugs, had contributed to the injury; and
that impairment of the three was attributable to use of illegal drugs. Additionally, the
Commission found Jackson’s post-accident actions regarding his drug test to be highly
suspicious and found that Mr. Silvey credibly testified about Jackson’s reporting he “could not
perform a urine sample” at the first appointment. The Commission concluded that Jackson
had not overcome the presumption.
Jackson testified at his hearing before the administrative law judge that the following
events occurred on Wednesday, September 24, 2003, during the swing shift.1 He was working
as “shot blast” operator of a machine that cleaned water-meter-machine parts by blasting them
with shot he described as akin to “millions of little b-bs.” Small parts could be hung onto a
“tree” that dragged them into the blasting machine, but 320-pound Jackson sometimes had
to physically push larger parts in. His alleged accident occurred when he was handling a 300to 400-pound coupling: he successfully pushed it into the machine and brought it out to turn
it, but it “stalemated” when he tried to push it back in, and b-bs fell all over the floor.
Jackson, who as an employee knew to be careful of slipping, indeed slipped on the shot. He
felt his right leg “kind of split,” lost his balance, and fell backward against some pallets. He did
1
The record before us does not explain why six years elapsed between the alleged date
of injury and the September 29, 2009 hearing.
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Cite as 2010 Ark. App. 691
not report the incident that night, and there were no witnesses.
Jackson testified that he “hurt pretty good” but “kind of blew it off” because the
accident happened shortly before his last break and his 11:00 p.m. quitting time. He told his
wife about it but told her he thought he was okay. He soaked in a hot tub, he was hurting,
and his wife put “rub” on him. Although on Thursday morning his pain was “kind of severe,”
he again blew it off and went to work at 2:30 p.m., limping a bit. He reported the incident
to his supervisor, Derrel Walraven, and left work after Walraven filled out an accident report.
There was no mention of a drug test at the time, but an appointment with a Dr. Stussy was
set up for the next day, a Friday.
Jackson stated that he went to the appointment around 2:30 p.m., waited until he saw
a nurse practitioner, and was prescribed muscle relaxers and pain pills. He could not urinate
when he was asked to give a urine sample for drug testing, so Smith-Blair’s human resource
manager, John Silvey, brought Gatorade to him and sat with him while he drank it. The
doctor’s office was closing by then, and Jackson left without producing a sample. Monday
morning Silvey instructed Jackson to go to the office of company doctor Mark Gabbie;
Jackson arrived there ready to give a urine sample but learned that Silvey wanted a hair sample
instead. The hair was taken and Jackson went to his shift; he stayed only about thirty minutes
because of pain in his right leg and lower back. About a week after the accident, Silvey
informed him that he was being terminated from employment because the hair-follicle test
was positive for marijuana.
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Cite as 2010 Ark. App. 691
Jackson denied using marijuana the day of the accident or being under its influence
when the accident occurred. He explained that three or four weeks previously, he had
unwittingly eaten marijuana-laced brownies that a Chicago cousin brought to a family
gathering after their grandmother’s death. Jackson said that Silvey and another supervisor
thought this story was “a joke” when he told it to them. Finally, he testified that his leg pain
and spasms had never left although he had seen doctors and physical therapists at various times
in the last years.
Jackson admitted on cross-examination that there was “very little” marijuana in his
system, but referred again to unknowingly eating marijuana-laced brownies. He testified that
he was on his wife’s health insurance, had followed her suggestion to see a pain specialist two
years after seeing his other doctor, and in 2006 had begun getting social security disability. He
said that he had undergone a required physical examination with drug testing before his
employment began at Smith-Blair. He said that his union had an agreement with Smith-Blair
requiring company employees to abide by reasonable work rules and drug policies, and he
acknowledged his signature on Smith-Blair rules prohibiting an employee from having “any
kind of drug or alcohol in his or her system.” He said there had been no random drug testing
in all his years at the company, but he recalled a meeting in July 2003 about drug use in the
workplace.
Evidence considered by the Commission included a letter from Silvey to Jackson,
terminating employment for violation of the company’s drug-testing policy; a positive lab
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Cite as 2010 Ark. App. 691
report from Quest Diagnostics showing .1 pg/mg of marijuana metabolites in Jackson’s hair
sample; accompanying literature from Quest; Jackson’s medical records;2 and Dr. Gabbie’s
deposition testimony. Quest’s literature included information on the appropriateness of
various testing methods:
Drugs in the bloodstream are able to incorporate and bind to the hair follicles
underneath the scalp. It takes approximately 3-10 days for hair containing drug to
reach the outer environment on top of the scalp to be collected based on the average
rate of head hair growth. . . . Urine is useful for detecting recent or new drug use (last
1-3 days except Marijuana which is longer) and hair for providing an approximate
three-month drug history.
....
Because Hair testing detects drug use over a long period of time, usually around
90 days, it is not an appropriate method for post-accident or reasonable suspicion testing. In both
of these situations, the drug testing procedure should detect the drug use of an
individual as close as possible to the time of the incident. However, hair tests are
appropriate for random testing protocols–especially if hair was used for the preemployment test or the employee has been working for more than 90 days.
(Emphasis added.)3
John Silvey testified that the purpose of the July 2003 meeting with all employees was
to mandate drug testing for any job injury, and he testified about getting Jackson tested after
his alleged accident. Jackson was sent to Dr. Stussy on Friday because Dr. Gabbie, the
2
The medical record from Dr. Stussy’s clinic of Friday, September 26, 2003, shows
Jackson’s complaint as “some back pain”; it states that he “has some periodic back pain, . . .
does a lot of heavy lifting all day, . . . and denies any specific injury.” Also in the record is a
neurosurgeon’s 2007 recommendation for surgical decompression at L5 and a 2009
“impairment medical evaluation” referencing a November 11, 2003 MMI finding
degenerative disease diffused in Jackson’s lumbar spine.
3
We do not know precisely the weight the Commission gave to the accompanying
literature from Quest because it was not mentioned in the findings of fact and conclusions of
law.
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Cite as 2010 Ark. App. 691
company doctor, was not able to see him. An employee at Dr. Stussy’s office telephoned
Silvey to report that Jackson had arrived but was upset about having to take a drug test. Silvey
told Jackson over the phone there was no choice because the accident report would be filed
as workers’ compensation. Jackson replied that he did not want it filed and that Silvey knew
about Jackson’s past back problems. Dr. Gabbie’s employee telephoned twenty minutes later
that Jackson still did not want to be tested. When Silvey again told Jackson that he had to,
Jackson said he could not urinate but Gatorade might help. Silvey took Gatorade to the clinic
and Jackson drank it, but after 5:00 it was “obvious” that Jackson would not be giving a
sample.
Silvey testified that on the following Monday he explained Friday’s events to Dr.
Gabbie’s lab technician, who said that Dr. Gabbie’s protocol when someone did “not take the
test” was to do hair-follicle testing. Silvey checked Smith-Blair’s policy,4 found that any type
of testing was allowed, and ordered the hair-follicle test. Silvey subsequently informed Jackson
of the positive results and set up a meeting with Jackson and his union representative. Jackson
then told Silvey about eating the brownies and asked that drug rehabilitation be considered,
but Silvey informed him that company policy allowed rehabilitation only if a person came
4
The company’s drug and alcohol policy, in part, prohibits employees from being at
work or operating company equipment under the influence of illegal drugs, which occurs “if
drug test results indicate the presence of an illegal drug or controlled substance in the
employee’s system in an amount that constitutes a positive test result.” Positive means the test
result shows either “the presence of an illegal drug or controlled substance in the employee’s
system at or above a threshold level set by the laboratory that conducted the test” or .05
percent blood-alcohol for an employee or job applicant. (Emphasis added.)
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forward before positive test results.
On cross-examination Silvey testified that Jackson did a good job at Smith-Blair, said
that the alleged accident could have happened just as Jackson described it, and stated that no
employee or supervisor said Jackson had been intoxicated or acting in an unusual fashion.
Smith-Blair stipulated that an employee was present to testify that Jackson “was not
intoxicated or did not appear to be intoxicated” at the time of his alleged injury.
Dr. Gabbie testified in his deposition that his lab technician would have taken Jackson’s
hair sample by the process specified in Quest’s literature and that the laboratory results showed
the presence of marijuana metabolites. Dr. Gabbie acknowledged that the test did not quantify
the amount present, quantify the amount used, specify the time of use except that it was
within ninety days, or indicate whether Jackson had been inebriated or using marijuana such
to have affected his work performance five days before testing.
Point on Appeal
Jackson contends that the Commission erred in denying his claim based on the
statutory presumption that his injury was caused by use of illegal drugs. He argues that the
presence of marijuana metabolites in his hair sample was not evidence of the presence of
marijuana, that the Commission ignored evidence to the contrary, and that no evidence
supported a finding that drug testing and Jackson’s own admission showed marijuana to be
present in his system at the time of his injury. He asserts that the statutory presumption did
not arise in this case and that, even if it did, he overcame it through his credible testimony of
the remoteness in time of his ingesting marijuana, stipulated testimony confirming that he was
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not impaired on the day in question, and Silvey’s admission that the accident could have
happened just as Jackson said.
It is the function of the Commission to determine the credibility of the witnesses and
the weight to be given their testimony. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911
S.W.2d 593 (1995). The Commission is not required to believe the testimony of the claimant
or any other witness, but may accept and translate into findings of fact only those portions of
the testimony it deems worthy of belief. Id.
The Commission found that Jackson’s admission of marijuana use in the time period
tested and the lab report that marijuana metabolites were present in his hair sample raised the
statutory presumption that his injury was substantially occasioned by his use of illegal drugs.
Our case law clearly states that the presence of marijuana metabolites is evidence of the
presence of marijuana. In Waldrip v. Graco Corp., 101 Ark. App. 101, 105, 270 S.W.3d 891,
895 (2008), we explained:
This court has previously concluded that testing positive for marijuana
metabolites is sufficient to establish a rebuttable presumption that the employee’s injury
was substantially occasioned by the use of marijuana. Wood v. West Tree Service, 70 Ark.
App. 29, 14 S.W.3d 883 (2000); see also Flowers v. Norman Oaks Constr. Co., 341 Ark.
474, 17 S.W.3d 472 (2000) (noting that both the Arkansas Supreme Court and this
court have held that the presence of drugs or alcohol established only by metabolites
or a slight amount of drugs or alcohol was sufficient to raise the rebuttable
presumption and shift the burden of proof to the claimant to rebut the presumption).
Moreover, in this case, appellees’ expert witness testified that the levels of metabolites
in appellant’s urine demonstrated that appellant had the THC active compound in his
blood. Accordingly, we are compelled to conclude that the rebuttable presumption
was created.
See also Flowers, supra; Wood v. West Tree Service, 70 Ark. App. 29, 14 S.W.3d 883 (2000);
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Hickey v. Gardisser, 2010 Ark. App. 464 (discussing the language of the statute).
Jackson directs our attention to the viewpoint of the dissent in Waldrip, that “[n]either
proof of past illegal drug use nor the presence of a metabolite is sufficient to invoke [the]
presumption.” 101 Ark. App. 101, 108, 270 S.W.3d 891, 896. Jackson relies upon his own
story and evidence about the purpose of hair-follicle testing as proof that he overcame any
presumption that the presence of marijuana substantially occasioned his accident and injury.
We comment only that dissenting opinions have no precedential value, and that it is the
Commission’s province to decide the weight and credibility of the evidence before it.
We reject Jackson’s premise that there was no presumption that his injury or accident
was substantially occasioned by the use of illegal drugs, and we find substantial evidence to
support the Commission’s finding that he failed to overcome the presumption. The
Commission’s decision displays a substantial basis for the denial of this claim, and we affirm.
Affirmed.
ROBBINS, J., agrees.
H ART, J., concurs.
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