{"id":"full_commission-H405400-2025-06-20","awcc_number":"H405400","decision_date":"2025-06-20","opinion_type":"full_commission","claimant_name":"Jeffrey Martinez","employer_name":"1st Employment Staffing","title":"MARTINEZ VS. 1ST EMPLOYMENT STAFFING AWCC# H405400 June 20, 2025","outcome":"unknown","outcome_keywords":[],"injury_keywords":["wrist","back"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Martinez_Jeffrey_H405400_20250620.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Martinez_Jeffrey_H405400_20250620.pdf","text_length":14595,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H405400 \n \nJEFFREY MARTINEZ,  \nEMPLOYEE    CLAIMANT \n \n1\nST\n EMPLOYMENT STAFFING,  \nEMPLOYER                                                                           RESPONDENT \n \nZURICH AMERICAN INSURANCE  \nCOMPANY, CARRIER /GALLAGHER BASSETT  \nSERVICES, INC., TPA                                                           RESPONDENT \n \nOPINION FILED JUNE 20, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE RICK BEHRING JR., \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed January 29, 2025. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at a pre-\nhearing conference conducted on October 9, 2024 and \ncontained in a pre-hearing order filed that same date \nare hereby accepted as fact.  \n \n2. Claimant has failed to prove by a preponderance of the \nevidence that he suffered a compensable injury to his \n\nMartinez-H405400  2 \n \n \nright wrist and hand on August 6, 2024. Specifically, \nclaimant failed to rebut the statutory presumption that \nhis injury was substantially occasioned by the use of \nillegal drugs (marijuana). \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the January 29, 2025 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents.  \nDISSENTING OPINION  \nThe Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant failed to prove by a preponderance of the evidence that he \n\nMartinez-H405400  3 \n \n \nsuffered a compensable injury to his right wrist and hand on August 6, 2024. \nSpecifically, the ALJ, found that the Claimant failed to rebut the statutory \npresumption that his injury was substantially occasioned by the use of illegal \ndrugs (marijuana). I disagree and would reverse the decision by the ALJ, and \nfind that the statutory presumption was not triggered, and that the Claimant \nproved he sustained compensable injuries to his right hand and wrist.  \nTo establish a compensable injury by a preponderance of the evidence \nthe Claimant must prove: (1) an injury arising out of and in the course of \nemployment; (2) that the injury caused internal or external harm to the body \nwhich required medical services or resulted in disability or death; (3) medical \nevidence supported by objective findings, as defined in Ark. Code Ann. §11-\n9-102(16), establishing the injury; and (4) that the injury was caused by a \nspecific and identifiable time and place of occurrence. A compensable injury \nmust be established by medical evidence supported by objective findings and \nmedical opinions addressing compensability must be stated within a degree \nof medical certainty. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d \n560 (2002). Further Arkansas Code Annotated § 11-9-102(4)(B)(iv) states \nthat a compensable injury does not include:  \n(a) Injury where the accident was substantially occasioned by \nthe use of [...] illegal drugs[.] \n(b) The  presence  of  [...],  illegal  drugs,  [...]  shall  create  a \nrebuttable  presumption  that  the  injury  or  accident  was \nsubstantially occasioned by the use of [...] illegal drugs[.]  \n\nMartinez-H405400  4 \n \n \nThe process to determine whether an accident was substantially occasioned \nby the use of illegal drugs is outlined by Arkansas Code Annotated § 11-9-\n102(4)(B)(iv)(c):  \n(c) Every employee is deemed by his or her performance of \nservices  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 \nThe  Claimant  was  hired  by  Respondent  on  July  30,  2024,  as  a \ntemporary employee and was assigned to work as a drill press operator for \nHickory  Springs  Manufacturing,  one  of  Respondent’s  industrial  clients. \nRespondent’s operations manager, Mashayla Martin, testified that some of \nthe safety training provided to the Claimant for his job included a generic \nvideo. On cross-examination, Martin states:  \nQ: Okay. So the safety video that you say he watched, what did \nthe safety video cover?  \nA: It covered various safety things. It is a 30-minue long video \nand then they take a short 10-question test after.  \nQ: Okay. And is that a generic video that works for all of your \nplaces?  \nA: Uh-huh.  \n... \nQ:  And  do  you  have  the  results  of  Jeffrey’s  safety  test \nsomewhere?  \nA: Yes.  \nQ: Are those not in his personnel file?  \nA: They are.  \nQ: What would they be under?  \nA: Safety test results. \nQ: Okay. Did you give those safety test results to Mr. Behring?  \nA: No, but we can.  \n\nMartinez-H405400  5 \n \n \nQ: Well, I had requested the entire personnel file, so if that is in \nthe personnel file, what else is in the personnel file that you did \nnot give to Mr. Behring?  \nA:  I  am  not  sure.  That  would  have  went  through  our  HR \nDepartment. \nClaimant was trained on the drill press by Genoveva “Eva” Martinez. Eva \nMartinez testified that she had not trained anyone as a drill press operator \nbefore  training  the  Claimant.  Eva  Martinez  further  testified  that  she  and \nClaimant worked together for about two days, and on the third day she \nreleased Claimant to work on the drill press alone. On August 6, 2024, six \ndays after Claimant began working for Respondent and three days after \nbeing  released  by  Respondent  employee  Eva  Martinez,  Claimant  was \ninjured. As the Claimant was operating the drill press his work glove became \ncaught in the machine, mangling his hand. Claimant was taken to the hospital \nand diagnosed with finger fractures and dorsal wrist injury. This required an \nurgent surgical procedure that included revision amputation of his little finger.  \n As the Claimant was being taken from the scene of the accident by \nEMS, plant manager Justin McCutchen allegedly found a vape pen laying on \nthe floor underneath the Claimant. McCutchen further testified that he carried \nthe vape pen around for a couple of hours and then gave it to Respondent’s \nHR Department. Mashayla Martin testified as follows regarding the vape pen:  \n Q: And what did you do with the vape pen after that?  \nA: I held onto it until OSHA had came to my office and when he \nhad saw it and smelt it, he told me that I needed to give it to the \npolice, so I had the police come then and take it.  \n\nMartinez-H405400  6 \n \n \n ... \nQ: After handing over the vape pen, have you had anything to \ndo with the vape pen since then?  \n A: No.  \nThere is nothing further in the record as to whether the vape pen was \ntested by the police for the presence of marijuana. It appears that Martin’s \nduties included determining whether a drug screen is appropriate for injured \nemployees and she provided the following testimony:  \nQ: Following that, did you decide that a post-accident drug \nscreen was necessary?  \n A: Yes.  \n Q: All right. So what did you do? \nA: I called the hospital because we have to have it done within \n24 hours of the incident and the hospital declined to do it for \nme. \nQ: Anytime you have an accident, do you guys administer a \ndrug test?  \nA: Yes.  \nQ: Okay. And so what happened after they declined – when the \nhospital declined to do a drug test?  \nA: I reached out to his family to see if I could come up and see \nthem. He was in surgery, so I spent a little bit of time with his \nsister and mother. I brought them dinner. And then the next \nmorning I reached out to Jeffrey and he said that the surgery \nwent well, so I asked him if I could get a statement from him \nand a drug screen and he agreed.  \nQ: Okay. When did you actually come see Mr. Martinez at the \nhospital?  \nA: It was the very next day on the 7\nth\n.  \nQ: And tell me what happened when you got there.  \nA: When I walked in, he had urine in a urinal and he said he we \ncould use that for the drug test, but I told him it would have to \nbe a clean catch and I actually poured that urine out myself. \nAnd then he said he didn’t have to go and I said, “That’s okay \nbecause we still have your statement to write.” So then I asked \nhim to walk me through the steps of what happened and I typed \nit up. \n\nMartinez-H405400  7 \n \n \n... \nQ: Okay. And then what happened after that?  \nA: When he was ready to urinate, he peed in the cup in his bed \nand I stood by the door with my back towards him for some \nprivacy. \nQ: Okay. And what happened after that?  \nA: I scanned it with our tablet that reads whether it is negative \nor positive and it came back presumptively positive. So we \nsealed it and he initialed and dated the seal on it and I put in a \nFedEx envelope and then I left the hospital and that was it.  \nThis drug test was positive of marijuana metabolite.  \nThe Claimant clearly suffered an injury to his hand as a result of his \nemployment  with  the  Respondent.  At  issue  is  whether  the  injury  is \ncompensable, or whether it falls outside the scope of compensability in that \nit was substantially occasioned by the use of illegal drugs. Ark. Code Ann. § \n11-9-102(4)(B)(iv) states that a compensable injury does not include “injury \nwhere the accident was substantially occasioned by the use of [...] illegal \ndrugs.”  The  presence  of  illegal  drugs  potentially  creates  a  rebuttable \npresumption that the injury or accident was substantially occasioned by the \nuse of illegal drugs. Ark. Code Ann. § 11-9-102(4)(B)(iv)(b). “Substantially \noccasioned” requires that there be a direct causal link between the use of \nillegal drugs and the injury in order for the injury to be considered non-\ncompensable. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 71, \n977 S.W.2d 212, 216 (1998).  \nInitially, I find that the rebuttable presumption identified by Arkansas \nCode Annotated § 11-9-102(4)(B)(iv)(b) was not triggered by the facts of this \n\nMartinez-H405400  8 \n \n \ncase. The decision of the ALJ was based almost exclusively on the admission \nof a drug screen which identified a marijuana metabolite in the Claimant’s \nurine. For reasons stated below I find that these test results were improperly \nadmitted  into evidence. The  Commission has  broad  discretion as  to  the \nadmission of evidence, and its decision will not be reversed absent a showing \nof an abuse of discretion. Tenner v. Aerocare Holdings, Inc., 2007 Ark. App. \nLEXIS 670 (2007). There are several irregularities in the process which raise \nconcerns regarding the validity of the test results. First, the statutes relating \nto the triggering of the rebuttable presumption must be strictly construed. \nArkansas Code Annotated §11-9-704(c)(3) Further, an employee is deemed \nto have consented to be tested for the presence of illegal substances by only \n“properly trained medical or law enforcement personnel.” Arkansas Code \nAnnotated  §  11-9-102(4)(B)(iv)(c).  Here,  the  operations  manager  for  the \nRespondent testified that she went to the hospital where the Claimant was \nbeing treated and personally collected a urine sample from him. There is no \nevidence in the record that she was properly trained to conduct the procedure \nor  that  she  fell  within  the  parameters  established  by  Arkansas  Code \nAnnotated § 11-9-102(4)(B)(iv)(c). Additionally, the evidence in the record \nshows that the urine sample was collected approximately 24 hours after the \nClaimant’s work accident after the Claimant received surgical treatment and \nmedications  made  necessary  by such  treatment.  Based  upon  these \n\nMartinez-H405400  9 \n \n \nirregularities, I find that the statutory presumption identified in Arkansas Code \nAnnotated § 11-9-102(4)(B)(iv)(b) was not created.  \n Further,  there  is  ample  testimony  in  the  record  as  to  Claimant’s \nbehavior before and after the accident which I find to be sufficient to meet his \nburden of proof that his accident did not result from the use of illegal drugs \nor alcohol. Claimant’s mother, Mayra Figueroa testified that she spoke to the \nClaimant prior to him leaving for work and that his behavior was normal. \nRespondent  witness,  Eva  Quintanilla  testified  that  Claimant’s  work  was \nsatisfactory on the morning of the work accident. After the work accident, \nEMS found that the Claimant was alert and oriented to the person, place and \nevent. The triage nurse at the hospital found that the Claimant was alert. The \nemergency room physician on duty, Dr. Kaleb Smithson, also found that the \nClaimant was alert and oriented to person, place, and time. There is not \nsufficient, credible evidence in the record to support the conclusion that the \nwork accident in this case was substantially occasioned by the use of illegal \ndrugs. On the other hand, there is substantial credible proof that the Claimant \nwas not impaired based upon the witness testimony, and the medical records. \nMoreover, the Claimant’s training for his job as a drill press operator at the \ntime  of  his accident was  inadequate  and  I  find  that  this  lack  of  training \nprovides a more reasonable explanation for the Claimant’s work accident.  \n\nMartinez-H405400  10 \n \n \nTherefore, I find that the Claimant has met his burden of proof to show \nhe sustained compensable injuries to his right wrist and hand, and that those \ninjuries were not substantially occasioned by the use of illegal drugs.   \n For the reasons stated above, I respectfully dissent.  \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H405400 JEFFREY MARTINEZ, EMPLOYEE CLAIMANT 1 ST EMPLOYMENT STAFFING, EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE COMPANY, CARRIER /GALLAGHER BASSETT SERVICES, INC., TPA RESPONDENT","fetched_at":"2026-05-19T22:29:44.246Z","links":{"html":"/opinions/full_commission-H405400-2025-06-20","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Martinez_Jeffrey_H405400_20250620.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}