Billy Leon Graham v. Turnage Employment Group, and Wausau Insurance Companies
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Billy Leon GRAHAM v. TURNAGE EMPLOYMENT GROUP
and Wausau Insurance Companies
98-147___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered July 2, 1998
1. Appeal & error -- issue not reached -- constitutional
challenge not raised below. -- Appellant's argument that a
statutory presumption was unconstitutional was not addressed
by the supreme court because appellant failed to raise it
before the Workers' Compensation Commission.
2. Appeal & error -- petition for review -- petition denied. --
The supreme court initially granted appellant's petition for
review because it was thought that the case presented an
opportunity to address when the statutory presumption created
by Ark. Code Ann. § 11-9-102(5)(B)(iv) may be invoked;
however, on appeal, appellant's arguments did not properly
raise this issue; instead, appellant made evidentiary
arguments; the petition for review was improvidently granted;
appellant's petition for review was denied, and the court of
appeals' decision in Graham v. Turnage Employment Group, 60
Ark. App. 150, 960 S.W.2d 453 (1998), remained the binding
decision in this matter.
Petition for Review denied.
The cortinez Law Firm, P.L.L.C., by: Robert Cortinez, for
appellant.
Anderson & Kilpatrick, by: Randy Murphy, for appellees.
Annabelle Clinton Imber, Justice.
The appellant, Billy Leon Graham, appeals from the decision of
the Workers' Compensation Commission denying him benefits for
injuries he sustained in a work-related accident. We initially
granted Graham's petition for review of the Court of Appeals'
decision affirming the Commission. Upon further examination, we
have determined that review was improvidently granted.
Accordingly, the petition is denied, and the Court of Appeals'
decision in Graham v. Turnage Employment Group, 60 Ark. App. 150,
960 S.W.2d 453 (1998), remains the binding ruling in this case.
On June 13, 1995, Billy Graham fell from a roof while he was
working as a construction laborer for Turnage Employment Group.
While being treated for his injuries at a nearby hospital, Graham
submitted to a urine drug screen. An analysis performed the next
day revealed that Graham's urine contained marijuana metabolites.
Graham subsequently filed a claim for workers' compensation
benefits. Turnage and its workers' compensation carrier, WausauInsurance, contended that Graham's injuries were not compensable
because they were "substantially occasioned by the use
of...illegal drugs" pursuant to Ark. Code Ann. § 11-9-102(5)(B)(iv) (Supp. 1997).
During a hearing before the administrative law judge (ALJ),
Graham testified that he did not smoke marijuana or use any type
of illegal drugs on the day of the accident, but he admitted that
he had taken "a couple of puffs" of marijuana approximately three
weeks prior to the accident. Graham, however, made several
contradictory statements about his prior drug use in his
deposition and to a representative from Wausau Insurance. Dr.
Henry F. Simmons, Jr., a toxicologist and medical doctor retained
by Graham, explained that the presence of metabolites in a
person's urine is both consistent and inconsistent with being
under the influence of marijuana, and thus, the lab report did
not prove that Graham used marijuana on the day of the accident.
Dr. Simmons then testified that "under some circumstances, a
urine specimen could [test] positive for weeks, if not in excess
of a month" after the use of marijuana. Finally, Dr. Simmons
explained that the effects of marijuana could last four to six
hours.
The ALJ awarded Graham benefits because he had presented
sufficient evidence to rebut the statutory presumption that his
injuries were substantially occasioned by the use of illegal
drugs. After conducting a de novo review of the record, the
Workers' Compensation Commission concluded that Graham failed torebut the statutory presumption because his testimony was
"replete with contradictions and inconsistencies," and "[h]e is
not able to tell the same story twice." Accordingly, the
Commission reversed the ALJ's ruling and denied Graham's request
for benefits. In a split decision, the Court of Appeals affirmed
the Commission's decision. Graham v. Turnage Employment Group,
60 Ark. App. 150, 960 S.W.2d 453 (1998).
We initially granted Graham's petition for review because we
thought this case presented an opportunity to address when the
statutory presumption created by Ark. Code Ann. § 11-9-102(5)(B)(iv) may be invoked. As acknowledged by Judge Roaf,
Graham's arguments on appeal, however, "miss the mark." Graham,
supra (Roaf, J., concurring). Instead of questioning whether a
urine analysis, which can only detect the presence of non-psychoactive metabolites of marijuana, is sufficient to invoke
the statutory presumption, Graham made the evidentiary arguments
that the lab result was hearsay, and that the proper chain of
custody had not been established. Graham also argued that the
urine analysis could not detect "impairment." This argument is
also misplaced because the statute only requires the "the use" of
illegal drugs and not impairment. Finally, Graham argued in
passing that the statutory presumption was unconstitutional. We,
however, cannot address this constitutional challenge because
Graham failed to raise it before the Workers' Compensation
Commission. Jefferson v. Munsey Products, Inc., 55 Ark. App.
105, 930 S.W.2d 396 (1996); Green v. Smith & Scott Logging, 54Ark. App. 53, 922 S.W.2d 746 (1996).
For these reasons, we conclude that the petition for review
was improvidently granted. Accordingly, we deny Graham's
petition for review, and the Court of Appeals' decision in Graham
v. Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453
(1998), remains the binding decision in this matter.
Petition for review denied.
Corbin, J., not participating.
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