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Papageorge v. Tyson Shared Services, Inc.

Court of Appeals of Arkansas, Division III

December 11, 2019

JASON PAPAGEORGE APPELLANT
v.
TYSON SHARED SERVICES, INC., AND TYNET CORPORATION APPELLEES

          APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G603438]

          Cullen & Co., PLLC, by: Tim Cullen, for appellant.

          Roberts Law Firm, P.A., by: Jeremy Swearingen and David Tyler Mills, for appellees.

          KENNETH S. HIXSON, JUDGE.

         Appellant Jason Papageorge brought a workers' compensation claim alleging that he sustained compensable neck and spinal-cord injuries while working for appellee Tyson Shared Services, Inc. (Tyson) in the early morning hours of March 16, 2016. Jason was a salesman for Tyson, and his claim arose out of a one-car automobile accident that occurred while he was driving from his house to the Northwest Arkansas Regional Airport in anticipation of traveling to meet with an out-of-state customer. The claim was originally accepted by Tyson as compensable. However, Tyson subsequently controverted the claim after learning that Jason's blood had tested positive for alcohol at Springfield Mercy Hospital on the morning of the accident. Tyson relied on the statutory presumption that the accident was substantially occasioned by the use of alcohol.

         After a hearing, the administrative law judge (ALJ) denied compensability of Jason's claim. The ALJ found that the presence of alcohol created a rebuttable presumption that the accident was substantially occasioned by alcohol, and that Jason was not entitled to compensation because he failed to prove by a preponderance of the evidence that alcohol did not substantially occasion the accident. The Arkansas Workers' Compensation Commission affirmed and adopted the ALJ's findings.

         Jason now appeals from the Commission's decision denying compensability. On appeal, he argues that the Commission erred in relying on the statutory presumption to deny benefits because he plainly and clearly rebutted the presumption. We affirm.

         The statutory presumption at issue in this case is encompassed in Arkansas Code Annotated section 11-9-102(4)(B)(iv) (Repl. 2012), which provides:

(B) "Compensable injury" does not include:
. . . .
(iv)(a) Injury where the accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders.
(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of a physician's orders shall create a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in contravention of physician's orders.
(c) Every employee is deemed by his or her performance of services to have impliedly consented to reasonable and responsible testing by properly trained medical or law enforcement personnel for the presence of any of the aforementioned substances in the employee's body.
(d) An employee shall not be entitled to compensation unless it is proved by a preponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized in contravention of the physician's orders did not substantially occasion the injury or accident.

         When the Commission denies benefits because the claimant has failed to meet his burden of proof, the substantial-evidence standard of proof requires that we affirm if the Commission's decision displays a substantial basis for the denial of relief. Ayers v. City of Ashdown, 2014 Ark.App. 270. We view the evidence in the light most favorable to the Commission's decision, which will be affirmed if it is supported by substantial evidence. Parker v. Comcast Cable Corp., 100 Ark.App. 400, 219 S.W.3d 391 (2007). The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission; if so, the appellate court must affirm. Id. We defer to the Commission's findings of credibility and the resolution of conflicting evidence. Welcher v. Davis Nursing Home, 2009 Ark.App. 831.

         The record shows that on the night before the accident, Jason and his wife, Shelby, had returned home to northwest Arkansas from their honeymoon in Bora Bora. Their long day of travel included consecutive flights from Bora Bora to Tahiti, Los Angeles, Dallas, and to their final destination at the Northwest Arkansas Regional Airport. They arrived at the Northwest Arkansas Regional Airport at around 8:00 p.m. Jason's job as a salesman involved extensive travel, and he was scheduled to leave on a business flight to Minnesota at 5:00 a.m. the next morning.

         Jason set his alarm for 3:30 a.m. but did not awake until 3:50 a.m. While driving to the airport in an attempt to catch his flight, Jason failed to negotiate a curve and flipped his car two or three times. The accident occurred shortly before 4:30 a.m., and Jason was taken by ambulance to Washington Regional Medical Center. He was subsequently flown to Springfield Mercy Hospital, where he underwent neck and back surgery. A blood draw taken at 9:26 a.m. at Springfield Mercy Hospital detected alcohol in Jason's blood at a concentration of 110 milligrams per deciliter. As a result of the accident, Jason suffered complete paralysis below his chest and partial paralysis in his arms and hands.

         Jason testified about consuming alcohol during periods of his travel home from Bora Bora as well as on that night after returning home. According to Jason, he did not drink on the flight from Bora Bora to Tahiti. Upon boarding the plane from Tahiti to Los Angeles, Jason drank a mimosa but did not drink for the remainder of the flight. Jason stated that during the flight from Los Angeles to Dallas, he ate a meal but did not recall consuming any alcohol. While at the Dallas airport, Jason ate a dish of ...


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