Under Arkansas law a workplace injury is not compensable if it is determined to have been substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders. A positive drug test creates a rebuttable presumption that drug intoxication caused the accident, shifting the burden to the claimant to prove otherwise.
In a recent case, a claimant was injured during the course and scope of his work. He had been tasked to remove lids off barrels. He elected to use an acetylene torch which was not the approved method. One barrel – apparently containing residual gasoline – exploded injuring claimant. Post-accident drug testing revealed marijuana metabolites. Workers’ compensation benefits were denied.
The record contains conflicting testimony on nearly every important question: whether claimant had been instructed on a safe way to do the task (using an air chisel); whether he had been told to check barrels for liquid before attempting to remove lids; whether claimant and another employee – also found to have marijuana in his system – had been observed shortly before accident driving together in an area where no work was being performed; whether the same two employees – when confronted by their supervisor – acted in a furtive and suspicious way; and, whether it was a common practice for workers to remove barrel lids using an acetylene torch. The Full Commission reviewed the evidence including undisputed documentation of a positive drug test, assessed the credibility of the witnesses and denied benefits, concluding that claimant had failed to rebut the intoxication presumption.
There are well-settled rules governing appellate review: the Court is to consider the evidence in the light most favorable to the decision below and affirm if that decision is supported by any substantial evidence. Questions of credibility are considered within the exclusive province of the Commission. Here those rules appear to have been set aside. The evidence supporting claimant’s position was outlined in considerable detail and then – with little discussion – the Court ruled that fair-minded persons would have found that claimant had effectively rebutted the drug causation presumption. In short, that the accident was the result of an unsafe work practice, not drug use. Prock v. Bull Shoals Boat Landing, 2014 Ark. 93 (Ark. 2014).
It is difficult to predict the impact of this decision on future workers’ compensation cases involving drug or alcohol defenses. Clearly this Court demonstrated by this decision a reluctance to deny benefits based on a positive drug test absent clear and compelling evidence linking the accident to the drug use. Contrary to the statutorily mandated presumption the Court appears to be placing the burden of persuasion on the employer. Given this decision, if an employer intends to rely upon the statutory drug or alcohol defense it would be well-advised to present testimony affirmatively establishing a link between the employee’s intoxication and the accident. How this can be accomplished depends on the facts.
For example, the employer could present testimony that the circumstances of the accident suggest poor judgment, impaired reflexes/coordination, or simple inattention. Likewise the employer may be able to present testimony of witnesses who observed conduct or other signs consistent with intoxication. Any such observations would be helpful in establishing the required causal relationship. It is, of course, always advisable to preserve such testimony by written or taped statements made as close in time to the accident as feasible.