ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION I

CRAIG BROWN

APPELLANT

V.

KAWNEER COMPANY, INC.

APPELLEE

CRAWFORD & COMPANY

APPELLEE

CA 00-01073

April 25, 2001

AN APPEAL FROM THE ORDER OF THE ARKANSAS WORKERS' COMPENSATION COMMISSION

[E709656]

REVERSED

Appellant, Craig Brown, appeals an order of the Workers' Compensation Commission finding that his injury, which was sustained in the course of his employment with the Kawneer Company, was substantially occasioned by the use of illegal drugs. Appellant contends that the Commission's finding that he had failed to rebut the drug-use presumption, after offering proof that the machine he was working on had malfunctioned, was not supported by substantial evidence. We agree and reverse the decision of the Commission.

Appellant was hired by appellee, Kawneer Company, on or about January of 1996. He was originally assigned to the packing department, but approximately two and a half weeks prior to his injury, he was transferred to the extrusion department. In the extrusion department, appellant helped manufacture aluminum frames for windows and buildings. On occasion, appellant was asked to assist in the "tail-stretching" process. This work required appellant and one additional employee to operate a machine that stretched aluminum beams called "mullions" that were bowed from theheating process. When a beam is placed in the machine, an automatic eye tells the machine when to send down the "stop." The stop is a metal rod that is dropped from the top of the machine to secure the mullion in place until it is clamped onto the machine and the stretching begins.

On July 19, 1997, appellant was working at the tail-stretching machine along with a co-employee, Cole Price. Appellant had worked as a tail-stretcher for approximately one hour per day for at least one and a half weeks. On this day, appellant was attempting to move a mullion (that had already been successfully stretched) from the machine onto the belt, when the metal stop on the machine came down and pinned the ring finger of appellant's left hand between the stop and the aluminum frame. Immediately following the incident, appellant went to Cooper Family Medicine for treatment. Dr. Bailey, the treating physician, diagnosed the injury to be an "obvious crus /contusion injury" and a fracture of the middle phalanx. During the course of treatment for his injury, appellant was required to submit to a urine test.

On July 31, 1997, appellant was informed that his urine tested positive for cannabinoids. Appellant admitted that he was a "casual" user of marijuana, but that he had not smoked in about a month. He was subsequently terminated from his employment with appellee because of the positive drug test. Following the initial treatment, appellant's finger became infected and on August 16, 1997, surgery was performed on his injured finger. Appellant was hospitalized for four days and ordered to remain off of work for six to eight weeks. He returned to gainful employment on November 30, 1997.

Appellant filed a workers' compensation claim, which was denied by appellee on the grounds that appellant's injury was substantially occasioned by illegal drug use and therefore he was barred from receiving benefits. After a benefits hearing, the ALJ found that appellant had successfully rebutted the presumption that his injury was due to his illegal drug use, and ruled thathe had proved by a preponderance of the evidence that he suffered a compensable injury to his ring finger on his left hand on July 29, 1997, while he was employed by the appellee. The Commission reversed the ALJ, ruling that appellant had failed to rebut the presumption that his injury was occasioned by drug use. Appellant has asked this court to review the Commission's decision for error.

The standard of review in workers' compensation cases is well-settled. On appeal, this court must determine whether there is substantial evidence to support the Commission's decision. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion. Id. The evidence is viewed in the light most favorable to the findings of the Commission and is given its strongest probative value in favor of the Commission's decision. Barrett v. Arkansas Rehabilitation Servs., 10 Ark. App. 102, 661 S.W.2d 439 (1983). The issue is not whether the appellate court might have reached a different conclusion from the one found by the Commission, or even whether the evidence would have supported a contrary finding, but if reasonable minds could arrive at the same decision as the Commission, the decision must be upheld. Harvest Foods v. Washam, 52 Ark.App. 72, 914 S.W.2d 776 (1996).

Prior to the passage of Act 796 of 1993, it was the employer's burden to prove that an employee's accident was caused by intoxication or drug use. Express Human Resources v. Terry, 61 Ark.App. 258, 260, 968 S.W.2d 630, 632 (1998); Morrilton Manor v. Brimmage, 58 Ark.App. 252, 952 S.W.2d 170 (1997). However, Act 796 shifted this burden of proof by requiring the employee to prove by a preponderance of the evidence that alcohol or drug use did not substantially occasion the injury, if alcohol or drugs were found in his body after an accident. Id. The relevant statute provides:

....

(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders;

(d) 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.

Ark.Code Ann. § 11-9-102(5)(B)(iv)(a)-(d) (Supp.1997).

In the case at bar, the ALJ concluded that appellant proved that the presence of illegal drugs did not substantially occasion his injury. To the contrary, he determined that "the stop descended and pinned the claimant's finger as a result of a machine malfunction." Appellant's co-worker, Cole Price, corroborated the employer's testimony that the stop was never "supposed to come down at that point in the operation," and testified that the appellant "had no reason to expect that stop to drop once those jaws were opened." He also testified that the machine had malfunctioned on prior occasions.

In response, appellee points out that appellant testified that had he been watching where the stop was, he would not have been injured. Appellee also argues that the evidence shows appellant could have placed his hand in another location to grasp the beam and would have avoided contact with the stop. This testimony, according to the Commission, indicates that the direct cause of appellant's injury was his carelessness resulting from his marijuana-induced impairment, not a malfunctioning machine. While appellant's performance of either of these cautionary acts would have proven that appellant had extraordinary foresight, by anticipating an unexpected machine malfunction, the failure to perform either act does not change the fact that the machine did notoperate as intended.

We hold that the Commission's conclusion that the machine did not malfunction is not supported by substantial evidence. The Commission found that appellant's testimony that he had "no idea" why the stop dropped (while the sensor that allows the stop to drop was in the covered position),1 along with Prices's testimony that he did not "know exactly why" the stud came down, places in dispute the actual malfunctioning of the machine. The Commission erroneously attempts to determine "why" the machine malfunctioned, instead of analyzing "if" the machine malfunctioned. The reason for malfunction is irrelevant, and the Commission erred in finding no malfunction.

This case is very similar to Bice v. Waterloo Industries, Inc., 71 Ark. App. 1, 26 S.W.3d 129 (2000). In that case, appellant Bice was injured when her hand was caught in a press she was operating. She also had a positive drug test that caused the Commission to deny her an award of benefits. This court held, based on testimony from appellant and her co-workers, that the machine malfunctioned and, therefore, the presumption of drug-induced causation was effectively rebutted. Likewise, in this case, the positive drug test, standing alone, does not establish a direct causal link between the use of drugs and the injury, and the machine malfunction effectively rebuts the presumption of drug-induced causation. We therefore reverse the decision of the Commission.

Hart, J., agrees.

Pittman, J., concurs.

1 If the sensor detects any object in its path, the stop is not supposed to drop.