SUPPLEMENTAL DISSENTING OPINION ON DENIAL OF REHEARING NOVEMBER 3,2004
Sam Bird, Judge,dissenting. Petitioners have asked this court to rehear this case for three reasons: (1) the finding that Ramsey rebutted the presumption that his accident and death were substantially occasioned by his use of drugs is not supported by substantial evidence; (2) Arkansas Code Annotated section 11 — 9— 102(4) creates a presumption that must be rebutted by the claimant, with the burden of proof being on the claimant rather than the employer; (3) this court failed to recognize that the evidence of Ramsey’s not hooking his safety harness and not using ropes was evidence of poor judgment, impaired by the drugs in his system. I would grant the petition on the first two points.
In this case, both this court and the Commission noted that the presence of illegal drugs created a rebuttable presumption under Arkansas Code Annotated ll-9-102(4)(B)(iv)(a) (Repl. 2002) that Ramsey’s accident and death was substantially occasioned by use of the illegal drugs. I believe, however, that the following excerpt from the Commission’s decision shows that it incorrectly applied the statutory presumption:
We can find no other indication on the date of the injury that illegal drugs were in any way the cause of the fatal accident. None of the hospital records show a causal connection between the claimant’s alleged drug use and the accidental injury. This issue arose after a urine sample detected methamphetamine and marijuana. Nevertheless, not one of the expert toxicologists could state when the claimant had ingested these drugs. None of the claimant’s co-workers, out of four witnesses, saw the claimant use drugs or otherwise.
Petitioners’ first argument is that substantial evidence does not support the finding that Ramsey rebutted the statutory presumption that the accident and death were substantially occasioned by the use of the illegal drugs. After noting that a urine sample revealing the presence of illegal drugs gave rise to the statutory presumption, the Commission pointed to the inability of expert toxicologists to state when the claimant had ingested these drugs. The Commission did not, however, discuss Dr. Light’s testimony that he believed that Ramsey “was under the influence of methamphetamine within the past seven hours.” The Commission may not disregard the testimony of any witness. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). I would reverse and remand to the Commission for consideration of all the evidence as to whether Ramsey rebutted the presumption that the presence of illegal drugs in his system substantially occasioned the accident that led to his death.
I would also remand on the basis of petitioners’ second argument, that the Commission did not assign to the claimant the burden of rebutting the presumption. Under Arkansas Code Annotated ll-9-102(4)(B)(iv)(d), an employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the illegal drugs did not substantially occasion the injury or accident. The burden of proof of a compensable injury shall be on an employee. Ark. Code Ann. § 11-9-102(4) (E). After noting that the presence of illegal drugs created a rebuttable presumption that Ramsey’s accident was substantially occasioned by the use of illegal drugs, the Commission then inexplicably found that there was “no other indication on the date of injury that illegal drugs were in any way the cause of the fatal accident.” Rather than beginning its analysis with the presumption that the illegal drugs caused the accident, and then examining the evidence to determine whether Ramsey had rebutted it, the Commission found that the presumption had been rebutted because there was no other indication that illegal drugs caused the fatal accident. The effect of the Commission’s decision is to shift to the employer the burden of proving that the illegal drugs substantially occasioned the employee’s injury, contrary to the purpose of the rebuttable presumption.
I would grant the petition for rehearing, and would reverse and remand this case to the Commission for its consideration of Dr. Light’s testimony and for a correct analysis of the rebuttable presumption that the presence of the illegal drugs caused the fatal accident.