dissenting in part.
I respectfully dissent from the majority opinion with regard to the application of Arkansas Code Annotated section 11-9-102(4)(B)(iv). As noted in the majority opinion, excluded from the definition of “compensable injury” is an injury where 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). The presence of an illegal drug creates a rebuttable presumption that the injury or accident was substantially occasioned by the use of the drug, see Ark.Code Ann. § 11 — 9—102(4)(B)(iv)(b), and an employee will not be entitled to compensation unless it is proved by a preponderance of the evidence that the illegal drug did not substantially occasion the injury or accident. See Ark.Code Ann. § 11 — 9—102 (4) (B) (iv) (d).
| is Here, the Commission’s findings and analysis thoroughly address whether Prock had smoked marijuana on the morning of the explosion, and the majority correctly holds that substantial evidence supports a finding that appellant smoked marijuana on that day. What the majority fails to recognize, however, is the lack of evidence that Prock was impaired or that any impairment caused — “substantially occasioned” — the explosion. The Commission erred by ending its analysis with the finding of drug use in this case. Our supreme court has made it clear that in order to find that drugs or alcohol “substantially occasioned” an injury so that it is noncompensable, there must be a direct causal link between the use of the drugs or alcohol and the injury. ERC Contractor Yard & Sales v. Robertson, 835 Ark. 68, 71, 977 S.W.2d 212, 216 (1998).
In the only part of its opinion that addresses the required direct causal link between the marijuana and the injury, the Commission stated:
We are not persuaded by claimant’s testimony that he always used a torch to remove the tops off the barrels as evidence that his marijuana use did not contribute to his injury. On the contrary, this evidence supports the fact of claimant’s admitted long-term marijuana use and his lack of personal safety.
However, the Commission apparently credited a co-worker’s testimony that this is how Prock always unsealed the barrels: “Mr. Didway confirmed that the claimant had cut barrels open with a cutting torch previously. However, he stated that he would not have used this method.” In fact, Didway testified that the reason he would not use a cutting torch to open a barrel is that he did not know how to operate one. Even if this was not the preferred method — indeed, it was a dangerous method — there is still no direct causal link between the use of drugs and the explosion. The Commission simply assumed that, because it found that 11fiProck had smoked marijuana, he was impaired and his impairment caused the accident. But the ingestion of drugs in and of itself is not a sufficient basis for denying benefits if there is no evidence that the drug use was the direct cause of the accident. Here, without more evidence, reasonable minds could not conclude that Prock’s injury was substantially occasioned by his marijuana use without resorting to speculation.
Substantial evidence exists only if reasonable minds could have reached the same conclusion without resort to speculation or conjecture. Lohman v. SSI, Inc., 94 Ark.App. 424, 427, 282 S.W.3d 487, 490 (2006). Conjecture and speculation, even if plausible, cannot take the place of proof. Id. Here, the evidence shows that Prock had used a cutting torch to open similar barrels on other occasions, including a barrel opened without incident immediately before the explosion. The Commission had to resort to speculation or conjecture to conclude that the use of marijuana caused this accident because there was no evidence of impairment and no evidence that drug use caused this accident. Compare Waldrip v. Graco Corp., 101 Ark.App. 101, 270 S.W.Bd 891 (2008) (employer’s expert testified regarding the likelihood that appellant was impaired; Commission credited the testimony that appellant was impaired, that he placed his hand in the press despite instruction to the contrary, and that this was consistent with appellant having impaired judgment from intoxication from marijuana). To the contrary, this was by all accounts an inherently dangerous activity, and the barrel likely would have exploded whether or not Prock had been impaired. Whether opening the vents on the barrels would have prevented the accident, as the concurrence | i7suggests, is yet another matter of speculation, as there was a dearth of expert testimony concerning the cause of the explosion.
Although the appellate court defers to the Commission on issues involving the weight of the evidence and the credibility of the witnesses, the Commission may not disregard testimony and is not so insulated as to render appellate review meaningless. McDonald v. Batesville Poultry Equipment, 90 Ark.App. 435, 442, 206 S.W.3d 908, 913 (2005) (citing Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001)). Additionally, while this court is of course bound by the Commission’s determinations as to the credibility of witnesses and the weight to be given their testimony, this case turns on whether the claimant rebutted the presumption that the accident was substantially occasioned by the use of marijuana, as required by section ll-9-102(4)(B)(iv).
In the recent case of Gentry v. Ark. Oil Field Sens., Inc., 2011 Ark.App. 786, 2011 WL 6189483, this court recognized that the mere presence of illegal drugs does not preclude an award of benefits without a direct causal link between the drugs and the injury. In the first appeal, Gentry v. Ark. Oil Field Sens., Inc., 2011 Ark.App. 306, 2011 WL 1571831, this court reviewed the denial of benefits for Gentry’s ankle that was injured when heavy oil-rig pipes rolled into him and he subsequently tested positive for illegal drugs. The case was remanded to the Commission for additional findings after this court noted that, while the issue of whether Gentry had ingested illegal drugs had been resolved against him, there was a second question: whether Gentry “rebutted the presumption that his accident or injury was substantially occasioned by his ingestion of illegal substances — a question regarding the direct causal link.” Id. at 2. | ^Following remand, this court concluded that the Commission had again failed to consider the causation issue and reversed and remanded for an award of benefits. As in the present case, the issues of credibility had no bearing on the issue of causation.
The uncontroverted evidence is that appellant had used this torch to open similar barrels without incident on other occasions; it is of no consequence that he may have been instructed to use the air chisel and some witnesses had never seen him use the cutting torch to open barrels. Accepting that appellant used marijuana on the morning of the accident, there was no evidence that Prock was impaired at the time of his injury. Indeed, his employer Eastwold testified that when he talked to Prock while he was in his vehicle immediately before the accident, he did not discern that Prock was impaired, or he would not have allowed him to continue to work. Again, there was no evidence that any impairment caused this accident. Accordingly, I do not believe the Commission’s decision is supported by substantial evidence because reasonable minds could not conclude that the accident was substantially occasioned by appellant’s drug use. I would reverse and remand for an award of benefits.
VAUGHT, C.J., and HOOFMAN, J., join in this dissent.