concurring. I concur for the reasons stated in my concurring opinion in Graham v. Turnage Employment Ins. Cos., 60 Ark. App. 150, 960 S.W.2d 453 (1998).
Arey, J., joins.
Wendell L. Griffen, Judge, dissenting.Drug (n.) 1. A substance used in medicine. 2. A substance that acts on the nervous system, such as a narcotic or stimulant, especially one causing addiction.
Illegal (adj.) Against the law.
Presence (n.) 1. Being present in aplace.
Present (adj.) 1. Being in the place in question. 2. Being dealt with or discussed. 3. Existing or occurring now.
Oxford American Dictionary 197, 325, 527 (1980).
How can a statute be strictly construed to excuse a party from meeting its burden of proof regarding a defense to a workers’ compensation claim? How can a statute that requires proof of the “presence of. . . illegal drugs” in order to create a rebuttable presumption that an injury or accident was substantially occasioned by the use of “illegal drugs” be strictly construed to create the presumption without proof that a drug is present, not to mention an illegal drug? How can expert testimony that the results of urine testing are inconclusive regarding when illegal drugs were used, what drugs were used, what quantity of illegal drugs were used, and even whether illegal drug use occurred, be deemed proof that marijuana was present so as to create the rebuttable presumption? How can a finding by the Workers’ Compensation Commission that marijuana was present be supported by substantial evidence without proof that marijuana was present?
The urine testing that appellant underwent following his July 12, 1994, single-vehicle accident while performing a work-related errand in a company truck produced positive results for marijuana metabolites. Appellees relied upon those test results to deny appellant’s claim for compensation benefits, contending that the positive test results established the presence of illegal drugs. Appellees introduced no other proof to establish the presence of illegal drugs. Appellant argues that the Commission’s decision is not supported by substantial evidence, and he challenges the conclusion that marijuana metabolites constitute an illegal drug so as to trigger the rebuttable presumption relied upon by appellees. I would hold that there is no substantial evidence to support the Commission’s decision because there is no evidence that marijuana or any other illegal drug was present. Therefore, I would reverse the Commission’s decision and remand the case so that benefits could be awarded. The Commission’s decision, and the position stated in the prevailing opinion that now affirms it, flies in the face of our obligation to strictly construe the workers’ compensation statutes and violates our duty to leave narrowing or broadening the workers’ compensation laws to the Arkansas General Assembly.
Arkansas Code Annotated Section 11-9-102(5) (B)(iv) (a) (R.epl. 1996), provides that a compensable injury does not include an injury where the accident was substantially occasioned by the use of illegal drugs. Subsection (b) provides that “the presence of . . . illegal drugs” shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of illegal drugs. Subsection (d) states that 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 an injury or accident.
Arkansas Code Annotated Section ll-9-704(c)(2) (Repl. 1996) provides that when deciding any issue, administrative law judges and the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence. Subsection (c)(3) states that administrative law judges, the Commission, and any reviewing courts shall construe the provisions of the workers’ compensation law strictly, while subsection (c)(4) provides that in determining whether a party has met the burden of proof on an issue, administrative law judges and the Commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party.
Given this legislative framework concerning the burden of proof, strict construction, and impartial weighing of the evidence, and recognizing that the legislature has plainly declared that if the scope of the workers’ compensation statutes is to be liberalized, broadened, or narrowed, then that concern is to be addressed by the General Assembly and not done by administrative law judges, the Commission, or the courts (see Ark. Code Ann. § 11-9-1001), the result now being affirmed is amazing. The appellees accepted the burden of proving the presence of “illegal drugs” when they defended appellant’s compensation claim. They produced no proof that “illegal drugs” or any other drugs were present in the urine specimen obtained from appellant shortly after his accident occurred.
None of the expert opinion evidence introduced by appellees established that illegal drugs were present in the urine specimen. Instead, the report prepared by Dr. Harold Miller, a medical toxicologist and pharmacologist consulted by appellees, stated that repeat tests of appellant’s urine sample were reported as confirmed positive for marijuana metabolites. Based on that testing, Dr. Miller concluded as follows:
I cannot determine when, and what manner, and what quantity, or whether legal or illegal drag use occurred. Neither can I draw any conclusions about whether the individual was impaired or intoxicated at the time the specimen was collected. Impairment is a function of the level of activity parent drug which is presented to the central nervous system via the arterial blood supply and bears no relationship to the metabolite level found in the urine.
Appellees also deposed Dr. Henry S. Simmons, a medical doctor who is board certified in emergency medicine and medical toxicology. Dr. Simmons concurred with Dr. Miller that the results of appellant’s urine specimen collected on the date of his accident revealed the presence of marijuana metabolites. However, neither Dr. Miller nor Dr. Simmons stated that the marijuana metabolites were marijuana. Dr. Simmons explicitly stated that there was no proof in appellant’s urine test results that tetrahydrocannabinol (THC), the principal psychoactive ingredient in marijuana, was present.
It is beyond dispute that marijuana is an illegal drug; however, appellees produced no proof that marijuana metabolites constitute drugs, not to mention “illegal drugs,” anywhere, let alone in Arkansas. The statute upon which they based their defense to appellant’s claim plainly requires proof of the presence of “illegal drugs,” not metabolites. According to The Sloane-Dorland Annotated Medical-Legal Dictionary, a metabolite is any substance produced by metabolism or by a metabolic process. Id. at 353 (Supp. 1992). Hence, a marijuana metabolite is a substance produced through the metabolism of marijuana. It makes no more sense to call a marijuana metabolite marijuana than to call carbon monoxide gasoline.
Appellant’s argument — that the mere presence of marijuana metabolites in his urine on the day of his accident was not sufficient to trigger the rebuttable presumption — was a direct challenge to the defense based upon the urine testing. If the expert opinions from Dr. Miller and Dr. Simmons prove anything, they show that appellees failed to prove that marijuana was present in appellant when the urine specimen was collected following his accident. That means that there is no substantial evidence to support the Commission’s finding that marijuana was present so as to create the rebuttable presumption that appellant’s injury was substantially occasioned by illegal drug use.
The Commission erred when it held that appellant was obligated to present proof to overcome the rebuttable presumption. There is no scientific, medical, judicial, statutory, or other basis in the record to justify declaring that marijuana metabolites are marijuana, or that they otherwise are “illegal drugs.” Therefore, I respectfully dissent.