Reed v. Turner Indus.

2015 Ark. App. 43

454 S.W.3d 237

Roger Reed, Appellant

v.Turner Industries and Ace American Insurance Company, Appellees

No. CV–14–624

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered January 28, 2015

J.R. Baber, M.D., J.D.; and Robert James, for appellant.

Frye Law Firm, P.A., by: William C. Frye, Little Rock, for appellee.

Opinion

LARRY D. VAUGHT, Judge

Appellant Roger Reed appeals from the opinion of the Arkansas Workers' Compensation Commission (Commission) denying his claim for benefits for an injury he received during his employment with appellee Turner Industries (Turner). On September 18, 2012, Reed fell as he descended a ladder and suffered significant injuries to his right ankle. He was taken to the hospital, where a urine sample tested positive for methamphetamine. The Commission denied Reed's claim based on Arkansas Code Annotated section 11–9–102(4)(B)(iv), finding that illegal drugs were in his system after the accident and that he failed to rebut the statutory presumption that the accident was substantially occasioned by the drugs. On appeal, Reed contends that (1) the Commission erred in applying section 11–9–102(4)(B)(iv) ; and (2) substantial evidence does not support the Commission's decision that he failed to rebut the statutory presumption. We affirm.

Reed testified that he worked as an electrician for thirty years and worked for Turner for approximately one year prior to his injury. On September 18, 2012, he arrived at work between 6:30 and 6:45 a.m., signed in, had coffee, and awaited his assignment. He said that he was told by his supervisor, Eddie Vance, to work on the “switch gear,” which required multiple trips up and down a ladder. Reed worked in that capacity until lunch, eating with co-employee Jimmy Choate. Reed returned to work on the “switch gear,” and around 2:45 p.m., fell from the ladder. He testified that he stepped on an angle iron¹ behind the ladder, which obstructed the ladder rung and caused his fall.

Reed learned at his deposition that his urine sample tested positive for methamphetamine.² He denied using methamphetamine around the time of the accident and denied symptoms of methamphetamine use, i.e., insomnia, dizziness, hyperactiveness, or loss of appetite. He also denied using his asthma inhaler or taking any other medicine before the accident. However, he conceded that (1) he had used methamphetamine eight to ten years prior; (2) he had pled guilty to sexual indecency with a minor in 2004 and that his drug use may have played a role in that incident; (3) he presented at the emergency room in 2004 for complaints of shortness of breath, dizziness, and chest pains and tested positive for methamphetamine and marijuana at that time; (4) he pled guilty in 2007 to possession of drug paraphernalia with intent to manufacture methamphetamine; and (5) he sought medical treatment in June 2012 for injuries to his forehead that he received when he and his son were wrestling. Reed agreed that someone using methamphetamine should not be around a construction site because it could increase the chances of a misstep or fall from a ladder.

Reed's mother, Linda Lawrence, testified that Reed and his son lived with her. She said that Reed went to drug rehabilitation in 2004 and that she did not think that he had used drugs since that time. She said that she recognized the symptoms of drug use and that Reed did not exhibit those symptoms around the time of the accident.

Choate testified that he worked with Reed the day the accident occurred. He said that he had never seen Reed use drugs and that he did not show any signs of being fidgety, violent, or hyperactive that day. Choate said that he ate lunch with Reed and never saw him leave the job site. Choate stated that the angle iron was about chest high and about four inches behind the rung. While he did not use the ladder in question, Choate added that he almost fell off another ladder when he caught his foot on an angle iron.

Vance, Reed's supervisor, testified that he had taken an in-house class on drug use and that it was his job to recognize intoxication at work. He said that if he believed that one of his employees was under the influence, he would remove him from work and request a drug test. Vance further said that he had never suspected that Reed was under the influence of drugs and had never requested that he take a drug test. On the day of the fall, Vance said that he and Reed had been working together on the “switch gear” and that Reed had no problems. Vance also said that Reed did not seem jittery or under the influence of drugs. Vance added that each of them had been successfully climbing up and down the ladder and that he saw no problems with the ladder.

William Huyck, safety manager for Evergreen Packaging (the company for which Turner was performing electrical work), testified that he inspected the ladder in question. He said that it was secured by an angle iron that was attached to duct work. He said that the angle iron was four and three-quarter inches behind the rung, which would have given Reed sufficient room to place the ball of his foot on the rung. It was Huyck's opinion that the angle iron did not cause Reed's fall. He added that there had been no other safety issues with or complaints about the ladder and that the ladder was not modified after Reed's fall.

Dr. Munir Khalid–Abasi testified that the laboratory cutoff for methamphetamine is 500 ng/ml, and Reed's test results showed 21,861 ng/ml methamphetamine. After receiving the results, the doctor contacted Reed to confirm what medications he was taking. Reed reported that he had prescriptions for Albuterol and another asthma inhaler but had not taken them. Dr. Khalid–Abasi said that the positive methamphetamine result would not have been caused by either of those medications.

Dr. Khalid–Abasi stated that there are two types of methamphetamine—one type is legal, is found in certain medications (a Parkinson's disease medication, a nasal vapo-inhaler, Adderall, Vyvanse, and Zydrex), and might cause a false-positive result. The other type of methamphetamine is illegal. He testified that the laboratory did not determine which of the two types of methamphetamine were found in Reed's sample. However, Dr. Khalid–Abasi discounted the possibility of a false-positive result in this case because Reed did not report taking any of the medications that contain the legal methamphetamine. The doctor testified that he could not opine as to when Reed consumed the methamphetamine. And while the doctor acknowledged the high levels of methamphetamine in Reed's sample, he did not opine that Reed was impaired. Finally, Dr. Khalid–Abasi stated that someone taking methamphetamine was at increased risk for accidents, including a misstep on a ladder.

A toxicologist from Quest Diagnostic Laboratory, Mark Wuest, testified about the procedures used to test Reed's sample and the results of same. While he confirmed the positive test results and amounts, he could not state when the drug was ingested or whether Reed was intoxicated.

After concluding that the presence of methamphetamine in Reed's system triggered the statutory presumption that his accident was substantially occasioned by the use of the illegal drug, the administrative law judge (ALJ) concluded that Reed failed to rebut the presumption. The ALJ discounted the testimony of Reed, Vance, Choate, and Lawrence because expert testimony showed that Reed's test results showed a significant level of methamphetamine in his system. The ALJ specifically found that Reed was not a credible witness, citing his past drug use and criminal conviction for intent to manufacture methamphetamine. The ALJ also found that there was no evidence that Reed ingested other medicine that would have caused a false-positive test result.

On appeal to the Commission, Reed argued that section 11–9–102(4)(B)(iv) was inapplicable because testing failed to differentiate between illegal and legal methamphetamine; therefore, there was no evidence that the methamphetamine in Reed's system was illegal. The Commission rejected this argument, finding the testimony of Dr. Khalid–Abasi and Wuest credible. Accordingly, the Commission applied section 11–9–102(4)(B)(iv), which triggered the rebuttable presumption that illegal drugs substantially occasioned the accidental injury. The Commission next found that Reed failed to rebut the presumption. While Reed claimed that his accident was caused by the angle iron, the Commission disagreed. It found that Vance—who testified that he knew of no unsafe conditions involving the ladder and did not consider the ladder unsafe—was more credible than Reed. The Commission further found that Huyck corroborated Vance's testimony, adding that there had been no reports that the ladder was unsafe and the ladder had not been modified since Reed's accident. The Commission then cited Dr. Khalid–Abasi's testimony that Reed had a significant level of methamphetamine in his system at the time of the accident and that the presence of methamphetamine greatly increased the probability of misstepping or slipping off a ladder. This appeal followed.

When the Commission denies coverage because the claimant failed to meet his burden of proof, the substantial-evidence standard of review requires that we affirm the Commission's decision if its opinion displays a substantial basis for denial of relief. Edmisten v. Bull Shoals Landing, 2014 Ark. 89, at...