{"id":"full_commission-H303132-2024-07-30","awcc_number":"H303132","decision_date":"2024-07-30","opinion_type":"full_commission","claimant_name":"Mikel Miller","employer_name":"Spurlock, Inc","title":"MILLER VS. SPURLOCK, INC. AWCC# H303132 JULY 30, 2024","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["wrist","back","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Miller_Mikel_H303132_20240730.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Miller_Mikel_H303132_20240730.pdf","text_length":19464,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303132 \n \n \nMIKEL MILLER, EMPLOYEE               CLAIMANT    \n \nSPURLOCK, INC., EMPLOYER                                    RESPONDENT\n     \nBITCO GENERAL INSURANCE  \nCORPORATION, CARRIER/TPA           RESPONDENT \n \nOPINION FILED JULY 30, 2024 \n \nUpon review before the Full Commission, Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas.  \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n  \nRespondents appeal an administrative law judge’s (ALJ) opinion filed \nFebruary 21, 2024.    The administrative law judge found that the claimant \nhad overcome the rebuttable presumption of Ark. Code Ann. § 11-9-\n102(4)(B)(iv) and proven he sustained a compensable left wrist injury on \nMay 10, 2023. After reviewing the record de novo, the Full Commission \nfinds the claimant did not sustain a compensable injury.   \n The claimant sustained a left wrist injury when he fell through the \nroof of a building he was demolishing for the respondent employer on May \n\nMILLER – H303132                  2 \n \n \n10, 2023. Upon arrival at the ER, the claimant tested positive for marijuana \nand benefits were denied by the carrier.  \nA prehearing order was filed on November 7, 2023.    The claimant \ncontended he sustained a compensable injury to his left wrist and although \nhe tested positive for an illegal substance, the accident occurred as a result \nof the roof collapsing and his falling through it and had nothing to do with \ndrug use at the time of the accident. \nThe respondents contended the claimant tested positive for an illegal \ndrug on the day of the accident, and the use of the illegal drug was the \ncause of the accident. \nThe parties agreed the issues to be presented were compensability \nof an injury to the claimant’s left wrist and the entitlement to benefits.  \nA hearing on this matter was held before an ALJ on January 29, \n2024. At the hearing, the claimant testified that he believed he went to work \nfor the respondent employer around October of 2022 as a general labor \nhand.   \nOn May 10, 2023, his first day at a job site in Cabot, employees were \ndemolishing an old strip mall. The claimant was instructed to get a piece of \nmetal off a slanted metal roof, which was between thirteen (13) and fifteen \n(15) feet high and required a ladder to access. An impact gun was used to \nunscrew the metal, and when the claimant picked it up, the piece of metal \nfolded, and he fell through landing on debris below.   \n\nMILLER – H303132                  3 \n \n \nAfter the fall, the claimant testified that he had pain in his left wrist \nand back, and his left wrist swelled. The claimant was transported by \nambulance to the Baptist Health Springhill emergency room. He was drug \ntested upon arrival at the hospital and testified that he was concerned about \nthe test because he had smoked marijuana two (2) weeks before. He \nadmitted to using marijuana, “probably twice every two months” and further \nstated that it made him feel calm, relaxed, and that it gets rid of his anxiety. \nThe second witness at the hearing was the claimant’s friend and \nroommate, Mason Garner, who was employed by the respondent and was \non the job site on May 10, 2023. Mr. Garner witnessed part of the claimant’s \nfall, and “turned around and he was on the floor” landing on insulation and a \ndebris pile. He thought the claimant probably fell fifteen to seventeen feet. \nMr. Garner testified he had not noticed anything unusual about the \nclaimant that day and had no reason to believe the claimant was under the \ninfluence of marijuana at the time of the accident, based upon his actions \nand demeanor. He signed a written statement, submitted into evidence, \nstating that the claimant was not under the influence of any illegal \nsubstance of any kind on May 10, 2023. Mr. Garner went on to testify, “He  \n- - he - - Like I said, he acted normal as me and you are right now, you \nknow. Didn’t seem like he was under any influence of anything, acted \nnormal as anyone should be.”  \n\nMILLER – H303132                  4 \n \n \nUnder cross-examination, Mr. Garner admitted he had never seen \nthe claimant under the influence of drugs, and he would not know the \ndifference between if he was or was not under the influence of drugs. He \nalso admitted he was not trained in any way to detect if a person was \nimpaired by drugs and had little medical knowledge of anything like that. He \nalso admitted using marijuana before he got out of high school. \nDr. Ethan Shock, an orthopedic surgeon with OrthoArkansas \nperformed surgery on the claimant’s left wrist on May 22, 2023. The \nclaimant returned to Dr. Schock on June 7, 2023, and received a short-arm \ncast. Dr. Shock opined in his report from the claimant’s final visit on August \n16, 2023, that the claimant lacked about 5 degrees of full flexion about the \nwrist and released the claimant from his care. \nAn administrative law judge filed an opinion on February 21, 2024.   \nThe administrative law judge found, among other things, that the claimant \nhad satisfied the burden of proof by a preponderance of the evidence to \novercome the rebuttable presumption of Ark code Ann. § 11-9-102(4)(B)(iv) \nand had proven he suffered a compensable left wrist injury on May 10, \n2023.    Additionally, he found the claimant had satisfied the burden of \nproving that he is entitled to reasonable and necessary medical treatment \nincluding the reasonable and necessary medical treatment that had already \noccurred, plus the unreimbursed travel expenses introduced at the hearing.   \nThe respondents appeal to the Full Commission.    \n\nMILLER – H303132                  5 \n \n \nArkansas Code Annotated § 11-9-102(B)(iv) provides that  \nThe presence of alcohol, illegal drugs, or \nprescription drugs used in contravention of a \nphysician's orders shall create a rebuttable \npresumption that the injury or accident was \nsubstantially occasioned by the use of alcohol, \nillegal drugs, or prescription drugs used in \ncontravention of physician's orders. \n \nWhether a rebuttable presumption is overcome by the evidence is a \nquestion of fact for the Commission to determine. Weaver v. Whitaker \nFurniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996).  \nThe Commission is not required to believe the testimony of any party \nor witness but may accept into its findings of fact only the portions of \ntestimony that it deems worthy of belief. American Greeting Corp. v. Garey, \n61 Ark. App. 18, 963 S.W.2d 613 (1998).  \nA claimant’s testimony is never considered uncontroverted, and his \nown self-serving testimony regarding the nature and extent of drug use is \ninsufficient to overcome this presumption. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994); Ester v. National Home Centers, \nInc., 61 Ark. App. 91, 967 S.W.2d 565 (1998). The visual assessment by a \nwitness of a claimant’s sobriety or intoxication alone is not sufficient \nevidence to rebut this statutory presumption. Papageorge v. Tyson Shared \nServs., 2019 Ark. App. 603, 590 S.W.3d 800 (2019). \nIn the present case, the claimant tested positive for marijuana upon \narriving at the hospital after his fall. At the hearing, the claimant admitted to \n\nMILLER – H303132                  6 \n \n \nmarijuana use and asserted that he was not disputing the results of the \ndrug test; however, the claimant testified that his last marijuana use was \ntwo (2) weeks prior to his fall.  \nThe claimant’s sole corroborating witness was his friend and \nroommate, Mason Garner, who was present and witnessed the claimant’s \nfall. Although Mr. Garner testified that he did not believe the claimant was \nunder the influence of marijuana at the time of the accident, he later \nadmitted that he had never seen the claimant under the influence of drugs \nand did not know the difference between if he is and if he isn’t. He further \ntestified that he was not trained to detect if a person was impaired by drugs, \nhad little medical knowledge of anything like that, and his testimony was \nstrictly on a layman basis.  \nIn Weaver v. Whitaker Furniture Co., 55 Ark. App 400, 935 S.W.2d \n584 (1996), the Commission stated while some accidental injuries might \noccur with little relationship to intoxication, a slip and fall type injury is of the \ntype which could be influenced by the effect of the forbidden substances. \nMoreover, the record does not reveal whether the other persons who \nallegedly did not notice intoxication possessed any special training for \nmaking such assessments. Id. \nThis case is controlling and exactly on point with the facts of this \ncase. The type accident sustained by the claimant in the case before us is \nthe type that could be influenced by the effect of forbidden substances and \n\nMILLER – H303132                  7 \n \n \nthe claimant’s witness who allegedly did not notice intoxication admitted he \ndid not possess any special training to make such an assessment.  \nThis self-serving, uncorroborated testimony by the claimant is \ninsufficient to rebut the presumption that marijuana was the substantial \ncause of his injury, and there are no facts or evidence in the record that \nwould support his testimony. To find the claimant has overcome the \nstatutory presumption would require conjecture and speculation and \nimpermissibly give the claimant the benefit of the doubt.  \nThe claimant’s sole witness, a friend, attempted to substantiate the \nclaimant’s testimony that the claimant was not under the influence of \nmarijuana at the time of his accident. However, because that friend is \nneither a professional nor trained in detecting the symptoms of drug \nintoxication, his testimony is not enough to overcome the presumption. In \naddition, Mr. Gardner testified he had never seen the claimant under the \ninfluence of drugs and, as a result, would be unable to tell whether the \nclaimant was or was not under the influence of drugs. \nWithout any evidence substantiating the claimant’s contention that \nhe was not under the influence of marijuana at the time of his injury, the \nclaimant has failed to rebut the presumption set forth in Ark. Code Ann. § \n11-9-102(B)(iv). Therefore, the claimant did not prove he had sustained a \ncompensable injury to his left wrist on May 10, 2023.  Accordingly, the \n\nMILLER – H303132                  8 \n \n \nOpinion of the administrative law judge filed on February 21, 2024, is \nhereby reversed.  \nIT IS SO ORDERED. \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ____________________________________ \n    MICHAEL R. MAYTON, Commissioner  \n \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n   The Administrative  Law  Judge  (hereinafter  referred  to  as  “ALJ”) \nfound that an employer/employee relationship existed on May 10, 2023, that \nthe Claimant has satisfied the burden of proof, by a preponderance of the \nevidence, to overcome the rebuttable presumption of Ark. Code Ann. § 11-9-\n102(4)(B)(iv) and has proven he suffered a compensable left wrist injury on \nMay 10, 2023, that the Claimant has satisfied the burden of proof that he is \nentitled to reasonable and necessary medical treatment, and finally, that the \nClaimant  has  satisfied  the  burden  of  proof,  by  a  preponderance  of  the \nevidence, that he is entitled temporary total disability from the day following \nhis injury through the date of July 9, 2023.  After conducting a de novo \nreview, I would concur with the ALJ’s findings.  \n\nMILLER – H303132                  9 \n \n \n1. The Claimant has satisfied the burden of proof, by a preponderance \nof the evidence, to overcome the rebuttable presumption of Ark. Code \nAnn. § 11-9-102(4)(B)(iv) and has proven he suffered a compensable \nleft wrist injury on May 10, 2023.  \n To establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.   A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002) \n Ark. Code Ann. § 11-9-102(4)(B)(iv) states that a compensable injury \ndoes not include “injury where the accident was substantially occasioned by \nthe use of [...] illegal drugs.”  The presence of illegal drugs creates a \nrebuttable presumption that the injury or accident was substantially \noccasioned by the use of illegal drugs.    Ark. Code Ann. § 11-9-\n102(4)(B)(iv)(b).  “Substantially occasioned” requires that there be a direct \ncausal link between the use of illegal drugs and the injury in order for the \n\nMILLER – H303132                  10 \n \n \ninjury to be considered non-compensable.   ERC Contractor Yard & Sales \nv. Robertson, 335 Ark. 63, 71, 977 S.W.2d 212, 216 (1998).  \n The Claimant testified that the accident in question happened after \nhe began removing a piece of metal off a slanted roof as instructed by his \nsupervisor.    Claimant testified that he noticed that a lot of screws were \nmissing off the roof and some spots of the metal were rusty.    While using \nan impact gun to unscrew the remaining screw from the metal piece, the \nmetal piece folded and the Claimant fell approximately thirteen (13) to \nfifteen (15) feet, landing on his left wrist.    The Claimant was transported by \nambulance to Baptist Health Emergency Department who noted the \nClaimant as oriented in event, person, place, and time.    (Cl. Ex. 2 p. 2).    At \nthe hospital, Claimant was seen by Dr. Raymond E. Peeples who noted that \nClaimant’s behavior and mood was normal.  (Cl. Ex. 2, p. 11).  Claimant \nwas diagnosed with an intra-articular fracture of his left wrist as visualized \nby X-Ray.    Claimant was tested for illegal substances on the date of the \naccident and tested positive for marijuana.  \n Claimant testified that he had smoked marijuana approximately two-\nweeks prior and was not under the influence of marijuana at the time of the \naccident.  Mason Garner, Claimant’s co-worker, testified that the Claimant \nwas not acting unusual on the date of the accident, that he had no reason \nto believe that Claimant was under the influence of marijuana at the time of \nthe accident based upon Claimant’s actions and demeanor, and that \n\nMILLER – H303132                  11 \n \n \nClaimant was acting “normal.”  Garner also testified that he had never seen \nthe Claimant under the influence of drugs and was not a trained \ntoxicologist.  \n The question at issue is whether the Claimant can overcome the \npresumption that the use of illegal drugs caused the work accident.    I find \nthat the Claimant has overcome this presumption.    The Claimant was told \nto remove a metal piece from a slanted roof, the metal piece was not \nsecured properly and folded underneath the Claimant causing him to fall \napproximately thirteen (13) to fifteen (15) feet.    Regardless of the \nClaimant’s marijuana usage, the credible evidence suggests that this \naccident would have occurred.  \n The uncorroborated testimony of an interested party is never \nconsidered uncontradicted, but this does not mean that the fact-finder may \nnot find such testimony to be credible and believable or that it must reject \nsuch testimony if it finds the testimony worthy of belief.   Continental \nExpress v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998).    In the case \nat hand, the Claimant proved himself a credible witness.    Claimant \nadmitted to smoking marijuana two-weeks prior to the accident.    Claimant \nwillingly took the drug test as required by his workplace.    Claimant testified \nthat he has smoked marijuana in the past.  Further, the EMT’s in the \nambulance, the physician at the emergency department, and Claimant’s \n\nMILLER – H303132                  12 \n \n \ncoworker, Mason Garner, all found that Claimant was acting normally on \nthe date of the accident.  \n Therefore, I would rule that he has overcome the presumption \ncreated by Ark. Code Ann. § 11-9-102(4)(B)(iv) and thus has satisfied the \nburden of proof, by a preponderance of the evidence, that he suffered a \ncompensable left wrist injury on May 10, 2023. \n2. The Claimant has satisfied the burden of proof that he is entitled to \nreasonable and necessary medical treatment, including the \nreasonable and necessary medical treatment that has already \noccurred, plus the unreimbursed travel expenses that were \nintroduced into the record.  \n  \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee. Ark. Code Ann. § 11-9-508(a).   \nReasonable and necessary medical services may include those necessary \nto accurately diagnose the nature and extent of the compensable injury; to \nreduce or alleviate symptoms resulting from the compensable injury; or to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury. Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  \n As Claimant has satisfied the burden of proof that he suffered a \ncompensable left wrist injury on May 10, 2023 and overcome the \npresumption of Ark. Code Ann. § 11-9-102(4)(B)(iv), he is entitled to \n\nMILLER – H303132                  13 \n \n \nreasonable and necessary medical treatment for his injury including the \nmedical treatment which has already occurred.  \n3. That the Claimant has satisfied the burden of proof, by a \npreponderance of the evidence, that he is entitled temporary total \ndisability from the day following his injury through the date of July 9, \n2023.  \n \nTemporary total disability benefits are appropriate where the \nemployee remains in the healing period and is totally incapacitated from \nearning wages. Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981).  \nThe Claimant was taken off of work by Dr. Ethan Schock on May 11, \n2023 for his compensable left-wrist injury and was to remain off of work until \nafter a post-operative visit occurred.    The Claimant had surgery on May 22, \n2023. Claimant was fully released at maximum medical improvement on \nAugust 16, 2023 by Dr. Schock.    The Claimant began employment with \nanother employer on July 10, 2023.  \nTherefore, I would rule that the Claimant has satisfied the burden of \nproof by a preponderance of the evidence that he is entitled to temporary \ntotal disability from the day following his injury through July 9, 2023.  \nFor the reasons stated above, I respectfully dissent. \n                                                                                                                \n                                  ______________________________                      \n                             M. SCOTT WILLHITE, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303132 MIKEL MILLER, EMPLOYEE CLAIMANT SPURLOCK, INC., EMPLOYER RESPONDENT BITCO GENERAL INSURANCE CORPORATION, CARRIER/TPA RESPONDENT OPINION FILED JULY 30, 2024 Upon review before the Full Commission, Little Rock, Pulaski County, Arkansas. Claimant repre...","fetched_at":"2026-05-19T22:29:45.253Z","links":{"html":"/opinions/full_commission-H303132-2024-07-30","pdf":"https://labor.arkansas.gov/wp-content/uploads/Miller_Mikel_H303132_20240730.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}