dissenting. I cannot agree with the majority opinion in this case.
The appellant, Louis Weaver III, was denied compensation because he tested positive for marijuana at the doctor’s office where appellant’s supervisor took appellant after he fell from a forklift while at work.
The administrative law judge held that appellant failed to prove by a preponderance of the evidence that he sustained a compensable injury within the meaning of Act 796 of 1993. The law judge’s opinion stated:
To summarize, the opinions of the experts indicated that the claimant had recently used marijuana, or similar substances, at a significant level, but was not a chronic user and had not used the drug following his on-the-job injury, prior to the next test date. The tests further show that passive exposure to marijuana smoke was not the source of the claimant’s positive test result.
Thus, it is the claimant’s burden in this claim to overcome the rebuttable presumption against compensability which arose as a result of the positive results of objective testing for cannabinoids. His proof tended to show that he had not been noticed to be visibly intoxicated at the time of the injury or at the doctor’s office, that there was a slippery substance, probably brake fluid, which could have played a part in the injury, and that he denied recent marijuana use.
However in determining whether the presumption has been overcome, the results of objective testing and the clear and consistent opinions of the experts cannot be overlooked. . . .
Thus, it can not be said that the claimant has overcome the statutory presumption and proved entitlement to benefits without impermissibly giving him the benefit of the doubt or resorting to conjecture and speculation on his behalf.
The Commission affirmed and adopted the law judge’s opinion which denied compensation.
Arkansas Code Annotated § ll-9-102(B)(iv) (Supp. 1993) provides:
(B) “Compensable injury” does not include:
(iv) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. Every employee is deemed by his performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee’s body. An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician’s orders did not substantially occasion the injury or accident.
The appellant argues on appeal that the Commission made a mistake as a matter of law in its interpretation of Ark. Code Ann. § ll-9-102(B)(iv). Appellant says the sentence “The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders” means that the presumption is rebutted simply upon presentation of proof to the contrary, and that here, when evidence was introduced regarding the cause of appellant’s fall, the presumption evaporated.
I agree with the appellant and I think the Commission erred in finding appellant had not overcome the statutory presumption. I also think the Commission erred in finding that the results of objective testing and the opinions of the experts cannot be overlooked in determining whether the presumption had been overcome.
Recognizing that the rules of evidence do not apply to worker’s compensation proceedings and that this case is controlled by our statute, I nevertheless think it is appropriate to turn to evidentiary principles for guidance.
A presumption is a standardized practice under which certain facts are held to call for uniform treatment with respect to their effect as proof of other facts and a rebuttable presumption is one under which the party against whom the presumption operates can always introduce proof in contradiction. Under what has become known as the “bursting bubble” theory of presumptions, the only effect of a presumption is to shift the burden of producing evidence with regard to the presumed fact and if that evidence is produced, the presumption disappears. See John W. Strong, McCormick on Evidence §§ 342, 344 (4th ed. 1992).
Arkansas cases have been in agreement with this general statement of the law. See St. Louis, Iron Mountain & Southern Railroad Company v. Landers, 67 Ark. 514, 55 S.W. 940 (1900) (the presumption of negligence ends when the railroad company introduces evidence to contradict it, and the presumption cannot be considered with the other evidence); Missouri Pacific Railroad Company v. Ross, 199 Ark. 182, 133 S.W.2d 29 (1939) (the presumption is at an end when evidence is introduced to contradict it and it cannot be considered with the other evidence, it has no place therein).
And in Orient Insurance Company v. Cox, 218 Ark. 804, 816, 238 S.W.2d 757 (1951), our supreme court stated:
“The peculiar effect of a presumption ‘of law’ (that is, a real presumption) is merely to invoke a rule of law compelling the jury to reach the conclusion in the absence of evidence to the contrary from the opponent. If the opponent does offer evidence to the contrary (sufficient to satisfy the judge’s requirement of some evidence), the presumption disappears as a rule of law, and the case is in the jury’s hands free from any rule. ... It is, therefore, a fallacy to attribute (as do some judges) an artificial probative force to a presumption, increasing for the jury the weight of the facts, even when the opponent has come forward with some evidence to the contrary.” (Citations omitted.)
And in Martin v. Young, 17 Ark. App. 128, 705 S.W.2d 445 (1986), a worker’s compensation case, this court held that when a properly addressed and stamped letter is shown to have been mailed, there is a presumption that it was received by the addressee in due course; however, the presumption ceases where the addressee denies having received the letter.
Thus, according to the above cited authority, in the instant case, when the appellant put on some proof from which the fact finder could reasonably find that the appellant’s injury was not caused by the use of alcohol or illegal drugs, the statutory presumption disappeared and could no longer be considered.
A reading of the statute brings me to the same conclusion. The statute first states that “the presence of alcohol . . . shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol.” It then provides that “An employee shall not be entided to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or . . . did not substantially occasion the injury or accident.” Because this second provision is included, I believe that it must mean something different from the former provision and refer to something other than the presumption or there would be no reason for its inclusion in the statute.
Therefore, under our statute, once appellant put on some reasonable proof that alcohol or drugs did not cause the accident the statutory presumption disappeared and had no force, and the results of objective testing and the opinions of the experts were not applicable in determining whether the presumption had been overcome. Appellant was then free of the presumption and left only with the burden of proving by a preponderance of the evidence that alcohol or drugs did not “substantially occasion” his on-the-job injury or accident.
Consequently, the Commission erred by improperly applying the statute. The last sentence of the Commission’s opinion, quoted above, in plain effect says even if the claimant rebuts the presumption — we cannot allow him benefits without “impermissibly giving him the benefit of the doubt.” How about — when he rebuts the presumption —just considering the evidence without using the presumption he has rebutted.
I dissent.