Blair v. Am. Stitchco, Inc.

2020 Ark. App. 38

593 S.W.3d 44

Jamy L. BLAIR, Appellant

v.AMERICAN STITCHCO, INC., and Bridgefield Casualty Insurance, Appellees

No. CV-19-408

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: January 22, 2020

Frederick S. "Rick" Spencer, Mountain Home, for appellant.

Zachary Ryburn, for appellees.

ROBERT J. GLADWIN, Judge

Jamy Blair appeals the April 4, 2019 decision of the Arkansas Workers’ Compensation Commission (Commission) denying compensability of her claim as a result of its finding that Jamy did not rebut the presumption that her accidental injury was substantially occasioned by the use of an illegal drug. We affirm.

I. Facts and Procedural History

Jamy was hired by appellee American Stitchco, Inc. (Employer), and worked for it for five days—from Monday, December 5 through Friday, December 9, 2016. Although orientation was standard for new employees, Jamy was told that because a new group of employees would be starting within approximately a week, her orientation would be postponed and held with theirs. After spending her first day operating a sewing machine, Jamy was transferred to the cutting department early the second day. She remained in that department through the time of her injury.

In describing how she was shown to use the cutting machine without any formal training, Jamy’s unrebutted testimony was that "there was one other girl there in that department. She showed me the material goes on this, this goes into this, it feeds through the machine, it comes out the other end, and that was it. And there was no more than that ... and then when she said she put me on this machine, she showed me how to load it, and that was I watched her on her side, I did my side, and that was it."

By her fourth day of work in the cutting department, Jamy had used the machine that caused her injury a total of only three and a half to four hours. Additionally, the four buttons on the machines were not color coded or otherwise labeled, and there were no posted instructions.

On the day of the accident, Jamy had arrived early and was operating two cutting machines—one behind her and one in front of her. One machine was cutting mesh webbing strips, and the other was cutting "Velcro hook and loop" to specified lengths. She explained that one of the machines used a heated blade to burn the ends of cut material together so it would not fray. Her primary responsibility was to stand between the two machines, ensure they did not jam, and make sure that they were processing material correctly. Jamy explained that she felt pressured to maintain the production pace of a stack of material to be processed about which she had been told, "We have to get these done."

As Jamy attempted to straighten out the material on one machine that was overlapping on itself, the other machine came to an unexpected stop. Jamy examined that machine and noticed that it had stopped with a piece of Velcro hook and loop stuck between two of the cutting blades. She had never been shown exactly how the buttons on the machine functioned, and they were not labeled. She hit the button she believed to be the off button and reached up under the guard in between the blades to pull the stuck material loose when the blade came down and severed her left index finger.

Jamy was taken by ambulance to the Baxter Regional Medical Center emergency department where x-rays showed a traumatic amputation of the distal end of the second phalanx including the distal interphalangeal joint ("DIP") and tuft of the left index finger. The finger was incised and drained, and Dr. Merwin Moore performed a shortening of the middle phalanx with flap closure on the date of the injury. Notably, Jamy was observed as alert, in no acute distress, and with intact, normal judgment. She provided a urine sample and was released.

Jamy testified that she spoke with a human-resources manager for Employer the day following this procedure and was told that Employer was sure a position with one hand would be available to her and that she could return to work. It was not until December 19, 2016, after nearly five days on the job and the accident that had severed part of her finger, that Jamy was able to attend the typical orientation. At the conclusion of the orientation, Jamy had a brief discussion with the human resources manager at which time she was told that a new guard had been put on the machine that injured her and that Employer was sure a position would be available for her. After she called on December 21 to report that she had been released to work and was ready to report back to one-handed duty, Jamy was told to consider herself terminated since no such work was available.

The postaccident report from Employer Solutions dated December 16, 2016, includes a "Positive/Abnormal" result indicating that Jamy tested positive for "Marijuana Metabolites" with an initial test level of "50 ng/mL." Jamy admitted having used marijuana on a "sporadic" basis over some thirty years but stated that such use took place only on weekends—"[n]ever during the week, workweek, never during working hours." She testified that her last exposure to, or use of, marijuana had been at least four weeks prior to the accident and that she was "shocked" to learn of the presence of it in her urine.

Jamy contended that she sustained a compensable injury while performing employment services for Employer—while she was trying to remove a blockage in the cutting machine that she was operating so that she could continue her work—and that she was not under the influence of any drug when the injury occurred. Appellees controverted her claim, contending that her injury was not compensable because she tested positive for illegal drugs immediately following the accidental injury that was directly caused by her drug use.

The ALJ found Jamy to be a credible witness and did not find a direct, causal link between the ingestion of marijuana and her injury. He found in his November 16, 2018 opinion that Jamy had successfully rebutted the statutory presumption created by her positive drug screen and proved that she sustained an injury to her left index finger arising out of and in the course of her employment and was correspondingly entitled to the appropriate workers’–compensation benefits—medical, indemnity, and controverted attorney fee. However, the ALJ’s findings of fact and conclusions of law were reversed by the Commission in its April 4, 2019 opinion. Jamy filed a timely notice of appeal on April 29, 2019.

II. Standard of Review and Applicable Law

This court recently reiterated the applicable law and standard of review in Papageorge v. Tyson Shared Services, Inc. 2019 Ark. App. 603, at 2–3, 590 S.W.3d 800 :

The statutory presumption at issue in this case is encompassed in Arkansas Code Annotated section 11-9-102(4)(B)(iv) (Repl. 2012), which provides:

(B) "Compensable injury" does not include:

....

(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.

(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders.

(c) 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.

(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.

When the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of proof requires that we affirm if the Commission’s decision displays a substantial basis for the denial of relief. We view the evidence in the light most favorable to the Commission’s decision, which will be affirmed if it is supported by substantial evidence. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission; if so, the appellate court must affirm. We defer to the Commission’s findings of credibility and the resolution of conflicting evidence.

(Internal citations omitted). Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. See Reed v. Turner Indus. , 2015 Ark. App. 43, at 7, 454 S.W.3d 237, 241.

III. Discussion

Although it is undisputed that Jamy tested positive for marijuana metabolites while at the hospital immediately after the accidental injury to her finger thus triggering the statutory presumption that her injury was substantially occasioned by her use of the illegal drug, she claims that under the particular circumstances of this case, and as...