NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION I

DAVID ORRELL

APPELLANT

V.

U.S. NATURAL RESOURCES, INC.

APPELLEE

CA00-1437

June 20, 2001

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION

E914293

AFFIRMED

Appellant David Orrell filed a workers' compensation claim for an injury he sustained after falling off a ladder at work. Because appellant tested positive for alcohol and marijuana after the accident, appellee U.S. Natural Resources invoked the drug/alcohol defense. After a hearing, the administrative law judge (ALJ) denied appellant's claim finding that he failed to rebut the statutory presumption that the injury was substantially occasioned by the use of drugs or alcohol. The Commission affirmed and adopted the decision of the ALJ. For reversal, appellant argues (1) that the ALJ and full Commission erred by using the wrong standard of proof to determine whether appellant rebutted the statutory presumption that the use of drugs or alcohol substantially occasioned his injury, and (2) that the Commission's decision is not supported by substantial evidence. We affirm.

Appellant was employed by appellee as a truck loader. On the morning of November 29, 1999, appellant arrived to work at 6:00 a.m. He was loading a flat-bed truck with coworkers Roger Foster and Troy Reed when the accident occurred. Appellant testified at the hearing that he was using a step ladder to climb onto the bed of the truck to show Foster where to place items so that they would remain on the truck. The top of the ladder was slightly higher than the bed of the truck. After he showed Foster where to place the items, appellant started to climb down from the truck by stepping on the second step down from the top. The ladder "kicked out" as he stepped down, but appellant did not know what caused the ladder to fall. The ladder fell to the side, and appellant's elbow struck the concrete, resulting in a fracture. The accident occurred around 8:00 a.m.

Appellant filed a claim for benefits, which was denied because he tested positive for alcohol and marijuana. At the hearing, appellant explained that he had been at a "keg party" the night before the accident. He arrived at the party around 7:00 or 8:00 p.m., went home at 2:00 a.m., and slept for three hours before waking up at 5:00 a.m. for work. He drank beer the whole time he was at the party. Although he conceded that he had smoked marijuana five years earlier, he denied smoking marijuana that night. He testified that other partygoers were smoking marijuana. Appellant did not feel he got high on marijuana the night before the accident and did not feel like he was high on marijuana at the time of the accident. He testified that his alcohol level was below the legal limit.

Roger Foster, who had worked with appellant for seven years, also testified at the hearing. He remembered talking with appellant on November 29 before they began working and stated that appellant acted as he normally did and did not seem high or drunk. Foster witnessed appellant's fall, but he had never seen anyone fall off a ladder at work previously. Foster explained that he and appellant were loading trailers when he asked appellant to climb onto the truck and give him some advice on the safest way to load the trailer. Appellant then told him what to do and began to get down. Foster testified that as appellant stepped off the trailer onto the ladder, the ladder "went the other way" and appellant fell backwards on his back and arm. Foster described the ladder as"crippled" and "unsafe" because one leg of the ladder was longer then the other three. He knew of nothing appellant did to cause the ladder to fall over.

Appellant also called Gary McDade, head of appellee's employee safety committee, to testify. While investigating the accident, Mc Dade spoke with appellant, took statements from Foster and Reed, and prepared an accident report. Appellant told McDade that he stepped on the outside of the ladder, as opposed to the middle where one would have better balance. McDade examined the ladder and determined that it was "flimsy and too short for the trailer." The accident report indicated that the defective ladder was the cause of the accident. While McDade did not know who chose to use that particular ladder, he stated that the choice was an exercise in poor judgment.

The ALJ found that appellant was barred from receiving benefits for his November 29 injury because he did not rebut the presumption in favor of appellee that his injury was substantially occasioned by the use of illegal drugs or alcohol. Recognizing that appellant's alcohol level was minimal, the ALJ emphasized that the appellant tested positive for marijuana. The ALJ did not find appellant's explanation of testing positive for marijuana by way of second-hand smoke to be credible. The ALJ concluded that appellant's denial of smoking marijuana, combined with a defective ladder, was not sufficient to rebut the presumption in favor of the employer.

The full Commission in a two-to-one opinion, found by a preponderance of the evidence, that the ALJ's findings were correct. The Commission affirmed and adopted the decision of the ALJ. From that decision, comes this appeal.

Appellant first argues that the ALJ and the Commission used the substantial evidence standard of review, as opposed to the preponderance of the evidence standard of proof, because the ALJ cited to and quoted from Woodall v. Honeycutt Constr., 340 Ark. 377, 12 S.W.3d 630 (2000),in the discussion section of his opinion. We disagree. The Commission, after conducting a de novo review, found that the ALJ's decision was supported by a preponderance of the evidence and adopted the ALJ's findings. Specifically, the Commission found, from a preponderance of the evidence, that the ALJ's findings of fact were correct. Appellant had the burden of proving that his injury was not substantially occasioned by the use of alcohol or illegal drugs; and the Commission found, from a preponderance of the evidence, that appellant failed to rebut the presumption. We recognize that the Commission's opinion stated "we affirm and adopt the decision of the Administrative Law Judge, including all findings and conclusions therein, as the decision of the Full Commission on appeal." (emphasis added). However, it is clear that the Commission conducted a de novo review applying the correct standard of proof and concluded, by a preponderance of the evidence, that the appellant failed to rebut the presumption. Thus, the Commission's reference to affirming and adopting the conclusions of the ALJ, which appellant alleges were based on the wrong standard of proof, is superfluous and does not alter its finding that the appellant failed to rebut the presumption. We must now turn to appellant's second point for reversal-whether the Commission's decision is supported by substantial evidence.

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 III v. Terry, 61 Ark. App. 258, 968 S.W.2d 630 (1998). However, Act 796 of 1993 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. Arkansas Code Annotated section 11-9-102(4)(B) (Supp. 1999) denies 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 oraccident." The Commission was required to determine whether appellant met his burden of proof in rebutting the presumption. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996). Whether a rebuttable presumption is overcome by the evidence is a question of fact for the Commission to determine. Id.

When reviewing a finding of fact made by the Commission, we must affirm if the Commission's decision is supported by substantial evidence. Continental Express v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.

This case is factually similar to Weaver v. Whitaker Furniture Co., supra. Weaver was working when he stepped down from a forklift and fell, fracturing his elbow. A urine sample taken on the day of the accident revealed the presence of cannabinoids. Weaver's employer denied his claim for benefits, contending that his injury was drug-related. At the hearing before the ALJ, Weaver testified that he had oil on his shoes and had not smoked marijuana in three years, but had been to a party four days prior where the marijuana smoke was heavy. Weaver opined that the oil on his shoes caused his fall. Weaver's co-worker testified that he had also slipped several times on brake fluid that leaked from the fork lift; that there was brake fluid on the floor where Weaver slipped; and that Weaver did not appear to be high at the time of the accident. A letter of the examining doctor stated that Weaver was not obviously intoxicated when he was seen on the day of the accident. The ALJ and the Commission found that Weaver failed to establish a compensable injury.

On appeal, Weaver argued that the Commission erred as a matter of law in that it failed to understand that when any evidence is presented, the rebuttable presumption evaporates. He argued that the Commission placed an impossible burden in refusing to disregard the rebuttablepresumption when he introduced testimony that he had not smoked marijuana in three years, that he was not intoxicated on the day of the accident, and that he slipped because of the oil on his shoes and the brake fluid on the floor. We noted that the Commission weighed Weaver's evidence that he slipped because of a foreign substance on the floor and his denial of smoking marijuana in three years, against the expert medical opinions indicating that the high levels of marijuana in Weaver's system could not have been obtained by second-hand smoke. This court affirmed, concluding that substantial evidence supported the Commission's finding that Weaver did not overcome the presumption.

In the present case, laboratory tests revealed the presence of marijuana in appellant's body on the day of the accident. Under Ark. Code Ann. § 11-9-102 (4)(B)(iv), this created a rebuttable presumption that his injury was substantially occasioned by the use of illegal drugs. The Commission weighed the evidence suggesting that appellant fell because of a defective ladder against his denial of smoking marijuana in the past five years. The Commission did not find credible appellant's explanation of why he tested positive for marijuana. It is well established that the credibility of the witnesses and the weight to be accorded to their testimony are matters exclusively within the province of the Commission. Weaver, supra. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Id. Since whether a presumption is rebutted is a fact question, we must affirm the Commission unless we are persuaded that fair-minded persons, with the same facts before them, could not have reached the conclusion reached by the Commission. Continental Express, supra. We think fair-minded persons could interpret the evidence as the Commission did; therefore, we affirm the Commission's finding that appellant failed to rebut the presumption that the accident was substantially occasioned by theuse of alcohol or illegal drugs.

Affirmed.

Hart and Neal, JJ., agree.