{"id":"alj-H405400-2025-01-29","awcc_number":"H405400","decision_date":"2025-01-29","opinion_type":"alj","claimant_name":"Jeffrey Martinez","employer_name":"1st Employment Staffing","title":"MARTINEZ VS. 1st EMPLOYMENT STAFFING AWCC# H405400 January 29, 2025","outcome":"denied","outcome_keywords":["dismissed:1","denied:3"],"injury_keywords":["wrist","carpal tunnel"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MARTINEZ_JEFFREY_H405400_20250129.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTINEZ_JEFFREY_H405400_20250129.pdf","text_length":17976,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H405400 \n \nJEFFREY MARTINEZ, Employee                                                                   CLAIMANT \n \n1\nst\n EMPLOYMENT STAFFING, Employer                                                RESPONDENT \n \nZURICH AMERICAN INS. CO., Carrier                                                    RESPONDENT                                                \n \n \n \n OPINION FILED JANUARY 29, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by RICK BEHRING, JR., Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 13, 2025, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on October  9,  2024 and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The  employee/employer/carrier  relationship  existed  among  the  parties  on \nAugust 6, 2024. \n 3.   Respondents have controverted this claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\nMartinez – H405400 \n \n2 \n \n1. Compensability of injury to claimant’s right wrist/hand on August 6, 2024. \n2. Related medical. \n3. Temporary total disability benefits from August 6, 2024 through a date yet to  \nbe determined. \n4. Attorney’s fee. \n5. Shippers’ defense. \nAt  the  time  of  the  hearing the  claimant  reserved  the  issue  of  his  entitlement to \ntemporary  total  disability  benefits.    In  addition,  the  respondent  withdrew  the  Shippers’ \ndefense as an issue. \nThe claimant contends  he sustained a compensable injury on August 6, 2024 and \nis entitled to medical treatment.  Claimant reserves all other issues. \nThe respondents contend the Arkansas Workers’ Compensation Commission has \nexclusive jurisdiction over this claim.  The respondents have denied and controverted this \nclaim in its entirety.  The claimant cannot meet his burden of proving by a compensable \ninjury  as  a  result  of  a  specific  incident  while  performing  employment  services  with  the \nrespondent  employer  on  August  6,  2024.    The  claimant  underwent  a  drug  screen  and \ntested  positive  for  an  illegal  drug – marijuana.    In  the  alternative,  the  claimant  testified \npositive for a prescription drug used in contravention with the physician’s orders is a safety \nsensitive position.  The claimant cannot overcome his presumption that the accident was \nnot substantially occasioned by the use of marijuana and, therefore, the claimant is not \nentitled to any benefits.  In the alternative, the claimant was not providing employment \nservices when performing a prohibited act at the time of the alleged incident. \n From a review of the record as a whole, to include medical reports, documents, \n\nMartinez – H405400 \n \n3 \n \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non October 9, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.     Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right wrist and hand on August 6, 2024.  Specifically, \nclaimant  failed  to  rebut  the  statutory  presumption  that  his  injury  was  substantially \noccasioned by the use of illegal drugs (marijuana). \n \n FACTUAL BACKGROUND \n The claimant is a 21-year-old man who became employed by the respondent on \nJuly  30,  2024.    Shortly  thereafter,  claimant  was  assigned  to  work  at  Hickory  Springs \nManufacturing (hereinafter known as “HSM”) as a welder’s helper.  At HSM, claimant was \nplaced in a position primarily operating a grinder and a drill press.  Claimant’s training on \nthe  grinder  and  drill  press  was  performed  by  Genoveva  Quintanilla.    According  to  the \ntestimony of Reyes Ruiz, Jr., the respondent’s production supervisor:  “He [claimant] was \nto learn how to operate the drill press machinery to provide a process called coping which \ntook a notch out of the end of a tube so it could be processed further.”  \n After undergoing an unknown number of days of training, the claimant was injured \non August 6, 2024.  On that date the claimant was operating the drill press when the glove \n\nMartinez – H405400 \n \n4 \n \nof his right hand got caught in the drill.  Claimant was taken to the emergency room at \nBaptist Health and was diagnosed with fractures to his right hand and fingers.  Claimant \nunderwent  a  surgical  repair  on  August  6,  2024, which  included  debridement  of  open \nfractures, pin stabilization of multiple fractures, carpal tunnel decompression, and hand \nfasiotomies.  Later, claimant underwent a skin graft procedure on August 21, 2024, and \nunderwent a pin removal procedure on October 24, 2024.   \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  right  hand  on  August  6,  2024.    He  seeks  payment  of  related  medical  expenses \nassociated with that injury. \n \nADJUDICATION \n Claimant contends  that  he  suffered  a  compensable  injury  to  his  right  hand  on \nAugust 6, 2024, when his hand got caught in a drill press resulting in various injuries to \nthe right hand.  While claimant was in the hospital following his accident, he was given a \nurine  drug  screen  test  by  Mashayla  Martin,  the  Operations  Manager  for respondent.  \nMartin testified that the hospital declined to perform a drug screen test, but she was given \npermission to visit claimant in the hospital and claimant agreed to give a statement and \nundergo a drug screen.  Claimant gave a sample which returned positive for marijuana \nmetabolites.  Based upon the positive drug screen, respondent contends that claimant’s \nclaim  for  compensation  benefits  is  barred  by  the  provisions  set  forth  in  A.C.A.  §11-9-\n102(4)(B)(iv) which provides: \n(a) Injury where the accident was substantially occasioned \nby the use of alcohol, illegal drugs, or prescription drugs \nused in contravention of physician’s orders. \n\nMartinez – H405400 \n \n5 \n \n \n(b)  The presence of alcohol, illegal drugs, or prescription \ndrugs used in contravention of a physician’s orders shall \ncreate a rebuttable presumption that the injury or accident \nwas substantially occasioned by the use of alcohol, illegal \ndrugs,  or prescription drugs used in contravention of  \nof physician’s orders. \n \n(c)  Every employee is deemed by his or her performance \nof services to have impliedly consented to reasonable and \nresponsible testing by properly trained medical or law \nenforcement personnel for the presence of any of the  \naforementioned substances in the employee’s body. \n \n(d)  An employee shall not be entitled to compensation  \nunless it is proved by a preponderance of the evidence \nthat the alcohol, illegal drugs, or prescription drugs utilized \nin contravention of the physician’s orders did not substantially \noccasion the injury or accident. \n \n  \n As noted,  claimant  underwent  a  drug  screen  which  was  positive  for  marijuana.  \nThis creates a rebuttable presumption that the injury was substantially occasioned by the \nuse of illegal drugs.  Accordingly, claimant has the burden of proving by a preponderance \nof the evidence that the illegal drugs did not substantially occasion his injury or accident.   \n Claimant testified that he had not smoked marijuana for about a month prior to his \naccident on August 6, 2024.  A claimant’s testimony is never considered uncontroverted, \nand  his  own  self-serving  testimony  regarding  the  nature  and  extent  of  drug  use  is \ninsufficient to overcome the presumption.  Nix v. Wilson World Hotel, 46 Ark. App. 303, \n879 S.W. 2d 457 (1994); Ester v. National Home Centers, Inc., 61 Ark. App. 91, 967 S.W. \n2d 565 (1998).  At the hearing, claimant also offered the testimony of his mother, Mayra \nFigueroa.    Figueroa  testified  that  claimant  lives  with  her  and  she  would  normally see \nclaimant before he went to work.  She testified that she recalled seeing claimant on the \n\nMartinez – H405400 \n \n6 \n \nmorning of August 6 and claimant appeared to be acting normal on that date.  Figueroa \nalso testified that she did not know what claimant did after he left the house that morning, \nand that although she had not seen claimant use marijuana, she knew that he did use it. \n Claimant has offered various explanations for why his accident occurred.  At one \npoint claimant testified that the gloves he was wearing on the day of the accident were \ntoo large and did not properly fit.  Claimant testified that respondent only had one size of \nglove  available.    Claimant’s  testimony  was  contradicted  by  the  testimony  of  Ruiz  who \ntestified that  respondent  provides  various  work  gloves  in  various  styles  and  sizes.    He \ntestified that when claimant initially came to HSM he was given gloves and they appeared \nto fit.  He further testified that claimant never came to him complaining about the fit of his \ngloves  and  that  normally  employees  would  get  a  fresh  pair  of  gloves  each  morning. \nLikewise, Genoveva testified that HSM provided gloves in various sizes. \nClaimant  also  testified  that  he  did  not  recall  getting  any  paperwork  about  the \nhazards to watch for when performing his job on the drill press and he did not recall Ruiz \ninforming  him  that  he  needed  to  shut  down  the  drill  press  any  time  he  was  handling \nsomething  involving  the  drill  press.   However, Ruiz  testified  that  when  claimant  initially \narrived at HSM he went over a Job Safety Analysis which with respect to the drill press \noperation noted that hazards included rotating equipment with metal shavings potentially \ngetting in the hands or eyes.  The analysis also indicated that employees were to wear \nall  proper  personal  protection equipment  and  to  not  wear  any  loose  clothing  while \noperating the drill press that could become entangled and pull  you into the machine.  Ruiz \ntestified  that  claimant  never  complained  about  the  training  he  was  receiving  or  the \nequipment that he was using. \n\nMartinez – H405400 \n \n7 \n \n Claimant also testified that Genoveva did not always turn off the drill press while \nmaking adjustments.  However, Genoveva testified that she always turned the machine \noff when something needed to be done and that she trained claimant to do the same.   \n  Q Why is it important to shut the machine off? \n \n  A You have to turn it off every time before you put your \n  hand in there because it is rotating. \n \n      *** \n  Q Did you ever put your hands near the drill when it was \n  rotating? \n \n  A No.  While it is rotating, no.  Never. \n \n  Q Did you always turn it off if you needed to change a  \n  part or manipulate the pipe? \n \n  A Yes. \n      *** \n  Q Did you train Mr. Martinez to do the same? \n \n  A Yes.  I would tell him never, never, never.  Always \n  turn it off. \n \n      *** \n   And I would tell him every time you move the mold, \n  you have to turn it off.  Every time you put your hands in there, \n  you have to turn it off, always.  And all the indications, what \n  the process was like, you always have to turn the machine \n  off in order to move something. \n \n \n Claimant also acknowledged that at his deposition he testified that he believed that \nGenoveva had her hand on the drill press handle at the time of the accident.  Likewise, \nclaimant indicated at the hearing that he believed that Genoveva had her hand on the drill \npress handle while it was running at the time of the accident.   \n  Q So as you were there with Genoveva, what  \n  happened? \n\nMartinez – H405400 \n \n8 \n \n \n  A I was there with Genoveva and the drill press  \n  was running and as the drill press was running, I \n  believe she had her hand on the lever, which in order - - \n  I didn’t - - I wasn’t able to understand that she would \n  be operating it or if she wanted me to point out to her \n  if I should be operating it or not. \n \n   And I was simply pointing out to her that I had \n  been fastening it properly and my glove had got caught \n  as I was in the action of explaining to her that I had done \n  it as she had asked. \n \n \n Again, Genoveva contradicted claimant’s testimony.  Genoveva testified that she \nwas not working on the drill press machine with claimant at the time of the accident, but \ninstead was operating a different machine which was next to the drill press.   \n  Q What were you doing when Mr. Martinez had his \n  accident? \n \n  A I was operating a different machine.  I was working \n  on a different machine.  We were each on another machine. \n \n  Q What machine were you operating? \n \n  A Well, there is three machines there and the three \n  machines are used depending on the mold we are going \n  to make.  You kind of fit them on each machine.  I was on \n  the second one, the middle one.  He was on the first one \n  where the accident happened.   \n \n   Well, and I headed over there.  The details of the \n  accident, I heard him scream and then I turned it off. \n \n  Q Did you see the accident happen? \n \n  A Exactly when it initiated, no.  When he screamed, I \n  turned it off. \n \n \n Genoveva  specifically  testified  that  she  was  not  touching  the  drill  press  when \n\nMartinez – H405400 \n \n9 \n \nclaimant had his accident, and that she was not rushing claimant to perform his work at \nthe time of the accident. \n Finally, claimant acknowledged that the drill press machine was still running when \nhe put his hand by the drill and that was contrary to his training and resulted in the injury.   \n  Q In the hundreds of times that you did the drill press, \n  you were trained that you were supposed to shut the drill \n  press off before you do anything with the pipe? \n \n  A Correct. \n \n  Q All right.  And you had observed your trainer do that, \n  correct, to turn off the machine before she adjusted the pipe? \n \n  A As of when? \n \n  Q Hundreds of times. \n \n  A Correct. \n \n  Q All right.  And on August 6\nth\n, though, the machine was \n  still running when you put your hand by the drill; is that correct? \n \n  A Correct. \n \n  Q And that is contrary to how you had been trained; is that \n  correct?   \n \n  A Correct. \n \n  Q And that is what ultimately caused you to have an injury; \n  isn’t that correct? \n \n  A Yes. \n \n  Q Regardless of what size gloves  you had on, had the  \n  machine been shut off when you put your hand in there,  you \n  wouldn’t have had an accident; is that correct? \n \n  A Correct. \n          *** \n  Q To be fair, Mr. Martinez, it sounds like everything \n\nMartinez – H405400 \n \n10 \n \n  happened fast.  And if I am appreciating what you are \n  saying here, you don’t really have a clear recollection \n  of exactly what happened when you had your accident; \n  do you? \n \n  A Various parts are a little hazy. \n \n  Q Okay.  But we do know this:  before August 6\nth\n, \n  you knew that you had to shut that machine off before \n  you did anything with the pipe; correct? \n \n  A Correct. \n \n  Q And we know that because it is dangerous to \n  leave it running when you put your hand by it; isn’t \n  that right? \n \n  A Yes. \n    \n      *** \n  Q And that is what Eva also trained you to do; is \n  that correct? \n \n  A Yes. \n \n \n Thus, at the time of his injury, claimant had been trained by Genoveva to turn the \nmachine off before making any modifications or corrections.  Claimant has acknowledged \nthat leaving the machine running while making those corrections is contrary to his training.  \nThere  is  no  credible  evidence  that  the  machine  malfunctioned  or  that  Genoveva \naccidently  operated  the  drill  press  while  claimant  was  making  an  adjustment.    To  the \ncontrary, Genoveva was operating another machine and did not have her hands on the \ndrill press claimant was operating at the time of his accident.  Claimant’s modification or \ncorrection of the drill press while it was still running was contrary to his training.   \n Based upon the foregoing evidence, I find that claimant has failed to prove by a \npreponderance of the evidence that his use of illegal drugs did not substantially occasion \n\nMartinez – H405400 \n \n11 \n \nhis injury or accident on August 6, 2024.  On that date claimant was making corrections \nto the drill press while he left the drill press running and placed his hand in close proximity \nto the drill which resulted in his injury.  This was contrary to claimant’s training as he has \nso   acknowledged.      Accordingly, I   find   that   claimant   has   failed   to   prove   by   a \npreponderance of the evidence that he suffered a compensable injury to his right hand \non August 6, 2024.   \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that he suffered \na compensable injury while working for respondent at HSM on August 6, 2024.  Therefore, \nhis claim for compensation benefits is hereby denied and dismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $820.25. \n IT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H405400 JEFFREY MARTINEZ, Employee CLAIMANT 1 st EMPLOYMENT STAFFING, Employer RESPONDENT ZURICH AMERICAN INS. CO., Carrier RESPONDENT OPINION FILED JANUARY 29, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County,...","fetched_at":"2026-05-19T22:44:53.402Z","links":{"html":"/opinions/alj-H405400-2025-01-29","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MARTINEZ_JEFFREY_H405400_20250129.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}