Wood v. West Tree Service

Terry Crabtree, Judge. On March 4, 1997, George Wood was electrocuted by a downed power line. Mr. Wood was an employee of West Tree Service and was cleaning up debris that was left by a recent tornado. The coroner’s report stated that the decedent was struck in the face as an energized wire fell off the tree branch he had picked up. Mr. Wood’s body was taken to Southwest Regional Medical Center where the Coroner’s office inspected the body and took blood and urine samples. A bag of marijuana and a package of ZigZag cigarette rolling papers were found in the pockets of Mr. Wood’s pants. Tests performed on the samples by the State Crime Lab revealed that marijuana metabolites were present in the samples taken from Mr. Wood’s body. These findings were confirmed by the UAMS Toxicology Department. Appellee, West Tree Service, disputed compensability of the claim of appellant Felicia Wood for dependency benefits, but stipulated that should Mr. Wood’s death be ruled compensable, appellant Felicia Wood, Mr. Wood’s daughter by a previous marriage, should qualify as a dependent child. The Workers’ Compensation Commission found that the presence of marijuana metabolites in Mr. Wood’s system constituted the presence of an illegal drug and therefore invoked the rebut-table presumption found in Ark. Code Ann. § 11 — 9— 102(5)(B)(iv)(b)(Repl. 1996) that Mr. Wood’s death was substantially occasioned by the use of marijuana. The full Commission denied benefits on that basis. Appellant asserts three points on appeal: (1) whether the Commission properly performed its function of determining the credibility of the witnesses and the proper weight to be given their testimony; (2) whether the Commission correctly interpreted the testimony of Jimmie Valentine, Ph.D.; and (3) whether substantial evidence exists to support the findings and decision of the Commission. We affirm. This court reviews decisions of the Workers’ Compensation Commission to see if they are supported by substantial evidence. Deffenbaugh Indus. v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). Substantial evidence is that relevant evidence which a reasonable mind might accept as adequate to support a conclusion: Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether this Court might have reached a different result from that reached by the Commission, or whether the evidence would have supported a contrary finding. If reasonable minds could reach the result shown by the Commission’s decision, we must affirm the decision. Bradley v. Alumax, 50 Ark. App. 13, 899 S.W.2d 850 (1995). It is now clear that testing positive for marijuana metabolites is sufficient to establish a rebuttable presumption that Mr. Wood’s injury was substantially occasioned by the use of marijuana. Brown v. Alabama Electric Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998); Weaver v. Whitaker Furniture Co., Inc., 55 Ark. App. 400, 935 S.W.2d 584 (1996). This court has addressed Ark. Code Ann. §11-9-102(5)(B)(iv) a number of times. It has found that when the urine sample is tested for delta-9-tetrahydrocannabinol, if the result is positive, this evidence establishes the rebuttable presumption. In both Brown, supra, and Graham v. Turnage Employment Group, 60 Ark. App. 150, 960 S.W.2d 453 (1998), this court affirmed the Commission’s decision denying compensability because metabolites were found in the appellants’ urine samples. The appellants argue on appeal that the Commission erred by finding that the testimony of two witnesses, both related to the decedent, did not sufficiendy rebut the presumption of intoxication. This argument is without merit. The question of whether the testimony of an interested party is sufficient to rebut the presumption remains a question for the trier of fact. Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 S.W.2d 842 (1985). We cannot find that the Commission erred in its decision. For her second point on appeal, the appellants argue that the Commission misinterpreted the testimony of Jimmie Valentine, Ph.D. It is the function of the Commission to determine the credibility and weight due a witness and his testimony, and its findings as to the inferences to be drawn from the testimony, once made, have the force and effect of a jury verdict. Service Chevrolet v. Atwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998). Dr. Valentine was the only expert who testified, and his opinion was that the decedent was impaired at the time of his accident. The appellants did not carry their burden of proving by a preponderance of the evidence that the decedents death was not substantially occasioned by the use of marijuana. For their third point on appeal, the appellants argue that the Commission’s decision was not supported by substantial evidence. Substantial evidence was presented through the toxicology reports and the doctor’s testimony. A decision by the Workers’ Compensation Commission is not reversed unless it is clear that fair-minded persons could not have reached the conclusion if presented with the same facts. Golden v. Westark Comm. College, 333 Ark. 41, 969 S.W.2d 154 (1998). We cannot find that the Commission erred. Affirmed. Pittman, Jennings, Bird, and Neal, JJ., agree. ROAF, J., dissents.