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Reed v. Turner Indus.

Court of Appeals of Arkansas, Division II

January 28, 2015

ROGER REED, APPELLANT
v.
TURNER INDUSTRIES and ACE AMERICAN INSURANCE COMPANY, APPELLEES

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION. No. G208200.

AFFIRMED.

J.R. Baber, M.D., J.D.; and Robert James, for appellant.

Frye Law Firm, P.A., by: William C. Frye, for appellee.

LARRY D. VAUGHT, Judge. WHITEAKER and HOOFMAN, JJ., agree.

OPINION

Page 238

LARRY D. VAUGHT, Judge

Appellant Roger Reed appeals from the opinion of the Arkansas Workers' Compensation Commission (Commission) denying his claim for benefits for an injury he received during his employment with appellee Turner Industries (Turner). On September 18, 2012, Reed fell as he descended a ladder and suffered significant injuries to his right ankle. He was taken to the hospital, where a urine sample tested positive for methamphetamine. The Commission denied Reed's claim based on Arkansas Code Annotated section 11-9-102(4)(B)(iv), finding that illegal drugs were in his system after the accident and that he failed to rebut the statutory presumption that the accident was substantially occasioned by the drugs. On appeal, Reed contends that (1) the Commission erred in applying section 11-9-102(4)(B)(iv); and (2) substantial evidence does not support the Commission's decision that he failed to rebut the statutory presumption. We affirm.

Reed testified that he worked as an electrician for thirty years and worked for Turner for approximately one year prior to his injury. On September 18, 2012, he arrived at work between 6:30 and 6:45 a.m., signed in, had coffee, and awaited his assignment. He said that he was told by his supervisor, Eddie Vance, to work on the " switch gear," which required multiple trips up and down a ladder. Reed worked in that capacity until lunch, eating with co-employee Jimmy Choate. Reed returned to work on the " switch gear," and around 2:45 p.m., fell from the ladder. He testified that he stepped on an angle iron[1] behind the ladder, which obstructed the ladder rung and caused his fall.

Reed learned at his deposition that his urine sample tested positive for methamphetamine.[2] He denied using methamphetamine around the time of the accident and denied symptoms of methamphetamine use, i.e., insomnia, dizziness, hyperactiveness, or loss of appetite. He also denied using his asthma inhaler or taking any other medicine before the accident. However, he conceded that (1) he had used methamphetamine eight to ten years prior; (2) he had pled guilty to sexual indecency with a minor in 2004 and that his drug use may have played a role in that incident; (3) he presented at the emergency room in 2004 for complaints of shortness of breath, dizziness, and chest pains and tested positive for methamphetamine and marijuana at that time; (4) he pled guilty in 2007 to possession of drug paraphernalia with intent to manufacture methamphetamine; and (5) he sought medical treatment in June 2012 for injuries to his forehead that he received when he and his son were wrestling. Reed agreed that someone using methamphetamine should not be around a construction site because it could increase the chances of a misstep or fall from a ladder.

Page 239

Reed's mother, Linda Lawrence, testified that Reed and his son lived with her. She said that Reed went to drug rehabilitation in 2004 and that she did not think that he had used drugs since that time. She said that she recognized the symptoms of drug use and that Reed did not exhibit those symptoms around the time of the accident.

Choate testified that he worked with Reed the day the accident occurred. He said that he had never seen Reed use drugs and that he did not show any signs of being fidgety, violent, or hyperactive that day. Choate said that he ate lunch with Reed and never saw him leave the job site. Choate stated that the angle iron was about chest high and about four inches behind the rung. While he did not use the ladder in question, Choate added that he almost fell off another ladder when he caught his foot on an angle iron.

Vance, Reed's supervisor, testified that he had taken an in-house class on drug use and that it was his job to recognize intoxication at work. He said that if he believed that one of his employees was under the influence, he would remove him from work and request a drug test. Vance further said that he had never suspected that Reed was under the influence of drugs and had never requested that he take a drug test. On the day of the fall, Vance said that he and Reed had been working together on the " switch gear" and that Reed had no problems. Vance also said that Reed did not seem jittery or under the ...


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