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National Transit Staffing, Inc. v. Norris

Court of Appeals of Arkansas, Divisions III, IV

April 4, 2018

NATIONAL TRANSIT STAFFING, INC., AND TRIANGLE INSURANCE COMPANY APPELLANTS
v.
MARK JOSEPH NORRIS APPELLEE

          APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G504428]

          Bassett Law Firm LLP, by: Tod C. Bassett, for appellants.

          Michael Hamby, P.A., by: Michael Hamby, for appellee.

          BRANDON J. HARRISON, JUDGE

         The issue here is whether methamphetamine was present in Mark Norris's body when he was injured at work so that his employer and its insurance carrier are entitled to receive a rebuttable presumption that the workplace injury was substantially occasioned by the drug. The Arkansas Workers' Compensation Commission (Commission) answered no, and Norris's employer and its insurance carrier appeal that decision. We hold that substantial evidence supports the Commission's decision. We also affirm the Commission's award of temporary total-disability (TTD) benefits.

         I. The Accident and Its Aftermath

         National Transit Staffing employed Norris as a truck driver and tasked him to carry a load from a Van Buren nursery to a St. Louis facility on 4 June 2015. Norris injured himself at the nursery loading dock during the early morning hours. His left hand apparently became wedged between two plates in a hydraulic lift. Within a few minutes of the accident, Norris freed himself, phoned a friend for directions to a nearby hospital, and drove himself there. Medical personnel at Summit Hospital in Van Buren evaluated Norris, concluded that repairing his crushed-thumb injury was beyond their capabilities, and sent him by ambulance to UAMS in Little Rock. Medical records from the Van Buren hospital visit noted that his thumb was crushed between two metal plates. The records also report that Norris appeared to be uncomfortable and that he was "anxious, appropriate for age, cooperative." At 4:26 a.m., Norris's pain was a "10 out of 10." At 4:41 a.m., Norris was given Dilaudid (a strong pain medicine) and Zofran (anti-nausea medicine) intravenously. Norris left the emergency department around 7:20 a.m.

         The paramedic report from the ambulance trip between Van Buren and Little Rock stated that Norris had reported that he caught his thumb between two pieces of sheet rock, and the doctor reported that the bones in Norris's thumb were shattered. The paramedic report also stated that Norris reported his pain level to be "at 2 at this time" and that he had been given Dilaudid and Zofran before the ambulance arrived in Little Rock. While traveling to UAMS, Norris started experiencing pain that was 10 on a scale of 1 to 10. He was given fentanyl (a strong opioid), which reduced his pain to 2 out of 10.

         Once at UAMS, Norris was evaluated and given morphine and Zofran at 10:34 a.m. At 10:54 a.m., Norris consented to surgery, which was done that day around 1:00 p.m., using a regional anesthesia. Norris was discharged the next day.

         UAMS emergency-department physician Dr. Delany L. Kinchen noted, "Psychiatric: He has a normal mood and affect. Judgment and thought content normal. Very bizarre affect." Dr. Theresa O. Wyrick, an orthopedic surgeon who amputated Norris's thumb, stated in her preoperative and postoperative diagnoses that Norris suffered "[a]cute methamphetamine use." Other records from UAMS indicate that Norris admitted "recreational drug use, methamphetamine every month or two" and that "[p]atient states he smoked and injected 'go fast' (methamphetamine) within the last 24 hours-he appears somewhat intoxicated."

         While recovering back home in Huntington, Arkansas, Norris signed a notice-of-injury form on 10 June 2015 and wrote this account of the accident:

It was 2 a.m. dark behind little truck went to close rear door, kept open to get air to plants. I hit button on rear truck tail gate lift thing snapped so quick chain got left hand pinned it till I could get it loose.

         National Transit Staffing and its insurance carrier initially paid a short period of temporary total-disability benefits and medical treatment before disputing the claim entirely.

         During the administrative hearing on the disputed claim, Norris described what happened in the emergency room this way:

Oh, the first thing off the bat, they cut off the glove. And then when, you know my thumb fell out, it was all exploded and in pieces. You could see like the bones in your hand because it was all cut open. They just immediately started giving me, I guess, pain medicine.

         He described being in and out of consciousness during the ambulance ride to Little Rock. He remembered "bit and pieces" of the discussions he had with the anesthesiologist who asked him about his drug use because "you could have a heart attack and stuff." He did not recall telling a doctor that he had used methamphetamine. According to Norris, he was "so delirious and just in and out so much." Norris denied using methamphetamine within a week of the accident.

         On cross-examination, the following colloquy occurred:

Defense Counsel: So how long have you been doing methamphetamine, Mr. Norris?
Norris: Like I told you the last time, gosh, I've partied a few times a year. I am not quite sure.
Defense Counsel: Before this accident happened, you had been a methamphetamine user; had you not?
Norris: Yes, I have done it, yes.
Defense Counsel: But on this particular night, you are saying that you did not use it, correct?
Norris: Yes.
. . . .
Defense Counsel: [Y]ou told the anesthesiologist that you used go-fast meth, that you both smoked it and injected it within 24 hours. You told him that, didn't you, sir?
Norris: I don't remember. . . . .
Defense Counsel: I asked you at your deposition why you would use methamphetamine and you told me, did you not, sir, because it would make you feel awake? Is that a fair statement?
Norris: Yes.
Defense Counsel: Also, it would make you go fast. Isn't that also true?
Norris: Yes, it is possible. . . . .
Defense Counsel: And you told me that when you used meth that you could definitely feel its effects for six to eight hours; is that correct?
Norris: Possibly, yes.
Defense Counsel: So what you did on this particular evening, isn't it true, Mr. Norris, that you used some meth anticipating you were going to have a six-hour drive to St. Louis and you did it before you went to the Parka Farm to pick up the truck; isn't that true?
Norris: No, I don't think so.

         Norris's brother, Luke, testified that Norris called him the morning the accident happened. He thought Norris was playing a joke on him about his thumb because he sounded drunk or drugged. Eventually Luke realized that Norris was serious, so he called National Transit Staffing and told them that Norris wouldn't make his shift because he lost his thumb and "they've got him on an IV and they are going ...


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