BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION WCC NO. G EATON AEROQUIP, LLC, EMPLOYER OLD REPUBLIC INSURANCE COMPANY, CARRIER

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1 BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION WCC NO. G JERRY ZELK, EMPLOYEE EATON AEROQUIP, LLC, EMPLOYER OLD REPUBLIC INSURANCE COMPANY, CARRIER CLAIMANT RESPONDENT RESPONDENT OPINION FILED MAY 2, 2016 Hearing before Administrative Law Judge O. Milton Fine II on March 2, 2016, in Mountain Home, Baxter County, Arkansas. Claimant represented by Mr. Frederick S. Rick Spencer, Attorney at Law, Mountain Home, Arkansas. Respondents represented by Mr. William C. Frye, Attorney at Law, North Little Rock, Arkansas. STATEMENT OF THE CASE On July 1, 2015, the above-captioned claim was heard in Mountain Home, Arkansas. A prehearing conference took place on April 27, A prehearing order entered on that date pursuant to the conference was admitted without objection as Commission Exhibit 1. At the hearing, the parties confirmed that the stipulations, issues, and respective contentions were properly set forth in the order. Stipulations At the hearing, the parties discussed the stipulations set forth in Commission Exhibit 1. They are the following, which I accept: 1. The Arkansas Workers Compensation Commission has jurisdiction over this claim.

2 Zelk - Claim No. G The employer/carrier/employee relationship existed on or about October 10, 2014, and at all relevant times. 3. Claimant s average weekly wage of $ entitles him to compensation rates of $553.00/$ Issues At the hearing, the parties discussed the issues set forth in Commission Exhibit 1. They read as follows: 1. Whether the Arkansas Workers Compensation Act is constitutional. 2. Whether Claimant sustained a compensable injury to his right ring finger. 3. Whether Claimant is entitled to reasonable and necessary medical treatment. 4. Whether Claimant is entitled to temporary total disability benefits from October 10-27, Whether Claimant is entitled to a controverted attorney s fee. All other issues have been reserved. Contentions The respective contentions of the parties read as follows: Claimant: 1. Claimant contends that he sustained a compensable injury while performing employment services for the respondent employer. 2. Claimant contends that he was not under the influence of marijuana on the date of his injury.

3 Zelk - Claim No. G Claimant contends that Respondents are responsible for the payment of unpaid medical bills related to this injury. 4. Claimant contends that he is entitled to reasonable and necessary medical treatment. Respondents: 1. Respondents contend that Claimant was injured on October 10, 2014 when he got his hand caught in a machine. 2. Claimant was sent for a post-accident drug screen, which indicated THC levels of ngs. in his system. Moreover, he admitted during his deposition that he has been a daily marijuana smoker for the last 40 years. 3. More importantly, Claimant was operating the machine in an unsafe manner, which led to his injury He was treated at Baxter Regional Medical Center and the medical was paid by Respondents. 5. Claimant was released with no restrictions in February 2015 and was not assigned any impairment. 1 I do not interpret this contention as Respondents asserting that Claimant s injury was the result of his engaging in an activity that was prohibited. See Arkansas State Police v. Davis, 45 Ark. App. 40, 870 S.W.2d 408 (1994)(where an employee was hurt while engaged in activity that was not only prohibited but unknown to and unaccepted by his superior, the employee was acting outside the scope and course of his employment). See also 1A A. Larson, THE LAW OF WORKMEN S COMPENSATION 31.00, 31.14(a) (1993)). Thus, such an argument will not be addressed.

4 Zelk - Claim No. G FINDINGS OF FACT AND CONCLUSIONS OF LAW After reviewing the record as a whole, including medical reports, documents, and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witnesses and to observe their demeanor, I hereby make the following findings of fact and conclusions of law in accordance with Ark. Code Ann (Repl. 2012): 1. The Arkansas Workers Compensation Commission has jurisdiction over this claim. 2. The stipulations set forth above are reasonable and are hereby accepted. 3. The Arkansas Workers Compensation Act is constitutional; Claimant s motion to recuse is hereby denied. 4. As a result of the drug test on October 10, 2014 showing the presence of marijuana in Claimant s system, a presumption exists under Ark. Code Ann (4)(B)(iv) (Repl. 2012) that his alleged right ring finger injury he suffered that same day was substantially occasioned by the use of illegal drugs. 5. Claimant has failed to rebut the presumption under Ark. Code Ann (4)(B)(iv) (Repl. 2012) that his alleged right ring finger injury was substantially occasioned by the use of illegal drugs. 6. Claimant has thus failed to prove by a preponderance of the evidence that his alleged right ring finger injury is compensable. 7. Because of the above finding, the remaining issues whether Claimant is entitled to reasonable and necessary medical treatment, temporary total

5 Zelk - Claim No. G disability benefits and a controverted attorney s fee are moot and will not be addressed. ADJUDICATION Summary of Evidence The hearing witnesses were Claimant and Tommy Lawhorn, a supervisor at Respondent Eaton Aeroquip ( Eaton ). In addition to the prehearing order discussed above, the other exhibits admitted into evidence in this case were Claimant s Exhibit 1, his February 2, 2016 motion to recuse, brief in support thereof, and attached documentation, consisting of 394 pages (per Commission policy, this exhibit, separately bound, has been retained in the Commission s files); Claimant s Exhibit 2, correspondence pertaining to his constitutional issue, consisting of one index page and six numbered pages thereafter; Claimant s Exhibit 3, a compilation of his medical records, consisting of one index page and 16 numbered pages thereafter; Respondents Exhibit 1, another compilation of Claimant s medical records, consisting of one index page and six numbered pages thereafter; and Respondents Exhibit 2, six photographs of Claimant s work area at Respondent Eaton. Testimony Claimant, who is 63 years old and has a high school diploma, testified that he worked for Respondent Eaton for ten years. During that time, he had different jobs in the production area of the plant. He elaborated: [I] ran braiders, which wound wire around tubing, and the job I was currently in was wire wind, and was working offline in stencil and inspection. The following exchange took place:

6 Zelk - Claim No. G Q. And help us understand what kind of machine you were using when this injury occurred. A. This was a let-off machine which raises the reels. When the tube that runs through a machine it pulls hose off this reel and that was the machine I was running then and I let the machine down to move a pipe over and I lifted it up real fast and the machine jumped up and bit me. Q. Did it jump up because you hit something or did it jump up improperly? A. It was not working properly. Q. Tell us, was this something that had been going on for a while with the machine not working properly? A. It d been going on for a while; I don t know how long. Q. How long did you know it was going on? A. Probably weeks. Q. Okay. Several weeks or just one week? A. Oh, probably several. The machine that Claimant was operating is called a let up machine, and it was used as part of the process for manufacturing hydraulic hoses. He stated: Hose s on reel and you run it through a machine and it puts it up on this lift to pull the hose off that reel. Thereafter, the hose is stenciled. The reel on the machine held 5/8 inch-diameter hose, and weighed approximately 200 pounds. A pneumatic lift on the machine raises and lowers the reel. The following exchange took place: Q. Did you accidental[ly] hit that pneumatic lever? A. No.

7 Zelk - Claim No. G Q. All right. So why in the world did it go, does it usually go up that fast? A. Well, it s not supposed to, but, you know, sometimes they do. Q. And you don t have any idea why they do that that fast? A. No. Q. Okay. Now, what happened when you, when that lift was going up so fast? A. Caught my finger in the pipe. Q. Which finger? A. My right finger on my right hand. Q. Would you show the judge the ring finger. A. My ring finger there. Here. Q. And what happened to the right finger? Was it? A. It just tore the skin off the finger. Q. Okay. And did it smash it or did it just cut it? A. It just more or less pinched it. He related that the incident shocked him, and at first he did not realize how serious his injury was. Tommy Lawhorn, who was merely an arm s-length away from Claimant at the time of the injury, told him to remove his glove. That was when he realized that the skin had been peeled off his finger. According to Claimant, he was administered a drug test one to two hours after the injury. He admitted to using marijuana for [h]igh blood pressure and sleep that last 40 years using it in the evenings and in the middle of the night. But he denied being intoxicated, or stumbling or falling, at the time his finger was hurt. In his years of work at

8 Zelk - Claim No. G Eaton, he had been commended by various supervisors for his good work; and he was never sent home for being intoxicated. Under questioning by Respondents, Claimant stated that he had suffered from hypertension for the past 20 years. When it was pointed out that his marijuana use began, per his testimony, 40 years ago at age 23, he testified that his use of the drug in earlier years was recreational in nature. He still smokes marijuana [p]ractically every day. At present, he works as a cab driver. The following exchange took place: Q. And you are getting behind the wheel of a car knowing that you ve smoked marijuana within the last 12 hours? A. Right. Q. Do you realize that that s illegal? A. No. Q. Well, you do realize that it s going to show up in your system? A. In your urine, yes. Q. Okay. Do you consider yourself to have a drug problem? A. No. He left his previous position because he [w]as sent to the pen. Claimant admitted that he pled guilty to possession of marijuana. The following exchange took place: Q. When you went to work at Eaton, you had to have a drug screen, didn t you? A. Right. Q. And you knew if it came back positive you wouldn t be hired, correct? A. Right. Q. Did you quit using for that time period so that you would be hired?

9 Zelk - Claim No. G A. Right. When he was taken to the hospital for his finger injury, Claimant did not tell them about his use of marijuana. He added: Why would I? I don t get why I would. At Eaton, Claimant worked from 7:00 a.m. to 7:00 p.m. His nighttime marijuana use would occur anywhere from 1:00 a.m. to 3:00 a.m. In the early morning hours on the day at issue, he probably used this drug and probably (his words) did so three to four hours before he arrived at work. He agreed that his job required that he have possession of his full mental capabilities. Claimant was adequately trained on how to operate the machine that ended up hurting him. The following exchange took place: Q. So what are you saying started the machine or started the process up and down? A. I went back there and lowered it because the pipe was coming out of the reel. I lowered it and I moved the pipe over and I put the switch back up and the machine raised real quick instead of going up real slow and I felt my finger between the pipe and the lift. Q. Are you supposed to have your hand on that machinery when you hit the lever? A. Probably not. Q. Would you agree with me that if you had not had your hand on that piece of machinery and you hit the lever this would not have happened? A. Right. Q. What was the drug policy out there [at Eaton]? A. Complete abstinence. Q. And you knew you were in violation of that? A. Right.

10 Zelk - Claim No. G Q. As we sit here today, you can t explain why you had your hand on the part where you shouldn t have when you pulled the lever? A. Well, it wouldn t have mattered anyway if the machine was working properly because, you know, it was supposed to go up nice and slow and I was just moving pipe over and I raised it at the same time and that s the reason my finger got caught. Q. Well, let me ask it a different way. Do you have to have the machine on to push the part over? A. You have to lower it. Q. Well, I m talking about it doesn t have to be moving when you push the actual [sic] or the part back in, does it? A. Well, you couldn t push it back in if it s moving because it s in the way of the reel. Q. So there would have been no reason for you to have your hand on it when you push that lever, is that correct? A. I guess not. Q. So is that a yes? There s no reason for your to have your hand on that part? A. No. Q. And if you hadn t had your hand, again, the accident wouldn t have happened? A. No. Under additional questioning from his attorney, Claimant stated that it would have made a big difference had the machine been operating properly, because normally it raises real slow [a]nd this thing was shooting up, you know, like it shot out of a rocket. For

11 Zelk - Claim No. G that reason, according to him, his use of marijuana was not a factor. Regardless, he maintained that he was not sleepy or intoxicated the morning of his injury. When questioned by the Commission, the following exchange took place: Q. Mr. Zelk, because of your testimony, the first one I need to lead off with is this. Did you use marijuana anytime in the last 24 hours, sir? A. This 24 hours? Q. Yes, sir. A. Yes. Q. Did you use it last night? A. Yes. Q. When was the last time you used marijuana, sir? A. Probably about like 3:00 in the morning. Q. Okay. And just for the record, right now [it] is 10:25 a.m. so that s just shy of seven-and-a-half hours ago. Do you feel like now that you are under the influence of marijuana? A. No. Q. Should I be able to rely on your testimony today as being accurate even though you smoked marijuana last night? A. Yes. He was injured around 9:00 a.m. Shown the photographs in Respondents Exhibit 2, he identified all of them as depicting the let-off machine that caused his finger injury. The sixth photograph in that exhibit shows the lever that raises the machine up and down. The second and third photographs depict the bar that pinched his hand.

12 Zelk - Claim No. G Asked about his earlier testimony concerning his criminal conviction, Claimant related that he had a conviction for selling drugs, and that while on parole for this sentence, it was revoked for the offense of possession of marijuana. Called by Respondents, Tommy Lawhorn testified that he has worked as a supervisor at Eaton for 12 years. He termed the machine that hurt Claimant as the S and I, stencil/inspect. Operators of this machine must undergo extensive training, which includes two weeks of one-on-one training. Asked how the machine is supposed to be operated, he responded: As far as loading the reel for insert, supposed to put the axle in the reel, then roll the axle up into the let-off, then walk around to the front and hit the lever, which raises the reel up, activates it and raises it. With respect to whether an operator should put his or her hands around moving machinery, Lawhorn stated: You shouldn t. It was Lawhorn s testimony that there was nothing wrong with the machine in question on the day of Claimant s injury. No repairs were made to it after the incident; it was not malfunctioning. Asked what he witnessed that day, he responded: I was there. Jerry was loading another reel. We d just finished one reel and when he went to push the reel on, he pushed it on, walked around, hit the lever, and realized that he didn t have the axle in far enough, it was sticking out, so he decided at that point he was going to adjust it. So he let it down, reached, and grabbed the axle, and shoved it in. And when doing so, he accidentally hit the lever, which activated it, brought it up, and hit his hand. Lawhorn heard Claimant s description of how he was operating the machine at the time in question. Asked it that was proper, he replied in the negative, stating: You should never have your hand in position with a moving piece of equipment. He should have been completely backed up towards the front of the machine when he activated the lever. What Claimant did in that instance was a safety violation. Lawhorn stated that Eaton has zero

13 Zelk - Claim No. G tolerance concerning use of marijuana by its employees. As for his opinion of the cause of the injury to Claimant, he stated: When he d come around and realized the axle wasn t far enough, he got in a hurry. He should have walked around, let it down with the reel out of the way, and put it in completely out of the way. But he saw it and he just [pulled] the lever, shoved it in, and that s when it happened. He should have, his hands should have never been anywhere in that position when it happened. If his hand has not been in that position, he would not have been hurt, according to Lawhorn. The hand placement was also a safety violation. Lawhorn then described what happened thereafter: Right when it happened, I saw it happened, so I immediately went to Jerry, asked him if she was okay, and he told me, yes, he was fine, it just got his glove; and I m like, Jerry, are your sure because I just saw this happened. He s like, no, I m fine, just got my glove. And then he walked around me and went to the other, towards the middle of the machine or the middle of the area there. And I walked back again and I was like, Jerry, are you sure you re okay. And he got, he said, yes, I m fine, it just got the glove. I said, can you show me, please. Because I saw it grab him, I saw him yank back real quick. And at that point he started taking his glove off and we could see there was blood coming and at that point and went off the floor and went to the production office where we took the glove off. And that s when I called for a first responder because it was pretty serious and at that point we realized it was way more and we needed to go to the ER. On cross-examination, Lawhorn testified that while the machine in question was not repaired after the incident, it was altered: The lever that [Claimant] actually hit used to face kind of 90 degrees from where it sits now so it was easier to get to. And after this happened with Mr. Zelk we decided to move it so you ve got to actually you can t accidentally get to it. Lawhorn agreed that had he thought that Claimant was intoxicated in any way, he and another member of Eaton management would have taken action against Claimant. Under questioning from the Commission, the following exchange took place:

14 Zelk - Claim No. G Q. I think I ve heard you testify towards the end of your testimony that the claimant, Mr. Zelk, bumped this lever. Is that correct? A. Yes, sir. Q. But also I though I heard you testify that he [sic] when he hit it, he had his hands in around the axle. Is that correct? A. Yes, sir. Actually had his hands on the axle sliding it in. Q. Okay. So did he accidentally bump the lever in your opinion from what you saw? A. Yes, sir. Q. Okay. If you were out there today working on that machine and were doing the job he was doing that day, because you repositioned the lever, is it less likely that it s going to get bumped? A. Yes, sir. Q. So does it make a difference now if you were doing the job today out at Eaton the way that Mr. Zelk was doing it that day and had his hand around the axle, is it fair to say then that because the lever is moved where it can t be accidental[ly] bumped that it s not a problem maneuvering the axle the way he was doing that day, if you were doing it today? A. It s still a problem because you still have other issues. You should actually, this reel should be backed out of there when you re putting that axle in there away from. That is just, this reel right here just rolls in off the floor. In order to put that axle in there, it should be outside of that.... Q. So the day that he bumped the lever, was [the axle] in the position [depicted on page 5 of Respondents Exhibit 2] and he was trying to push it in? A. He d actually already raised it, the reel, then he d let it down because the axle was too far this way, wasn t in far enough because it was sticking out. So he let it down and then he reached over and grabbed the axle to slide it back in further and then when he did that s when he bumped the lever and it engaged.

15 Zelk - Claim No. G Q. Okay. What would have been the proper way to have handled the fact that once he discovered the axle wasn t engaged properly, what would have been the proper procedure to do this, to fix the problem? A. Would have been the proper way would have [sic] to remove the reel completely out of the frame and then slide your axle over and reload the reel. Q. So what he, how he violated procedure was trying to do it while it was still? A. It s still in the area of where you can get hurt. He was just, you know, basically rushing, was in a hurry. It slides easy enough, that axle does, so, you know, in his eyes it was easier to shove it in right there than it is to go through all the process and extra work of moving the reel. Q. Had you ever seen him make that maneuver before? A. No, I hadn t, but I m sure he has and I m sure other people have. Q. But you actually saw? You actually saw him do this? A. Yes, sir. Per Lawhorn, the machine was not operating abnormally with respect to the speed that the bar was raised when the lever was engaged. Under further questioning from Claimant, Lawhorn denied that Claimant s work station that day was under a production quota. While he agreed that Claimant s injury was an accident, he hastened to add: But I think [it] could hav e been avoided. Under additional questioning from Respondents, the following exchange took place: Q. We were talking about the operation of the machine and doing it the proper way. Again, what did he not do properly? Would you explain that? A. What he didn t do properly was he should have removed the reel before he inserted the axle further. His hand should have never been there when he engaged it.

16 Zelk - Claim No. G Q. And A. The reel should have been completely out of the area. Q. And is that how they re trained? A. Yes, sir. Q. And Mr. Spencer asked you about quotas and speed. Did speed play [a role] in this? A. No, sir. No. Q. And you saw him do it that way. If he had not been injured, would you have counseled him on that that you don t do it that way? A. If I would have saw it, yes, sir. Q. Well, you did see it, but A. Right. Q. if there had not been an accident, would he have been counseled the proper way? A. Yes, sir. I would have followed up when I noticed it. Medical Records The medical records in evidence, contained in Claimant s Exhibit 3 and Respondents Exhibit 1, reflect the following: On October 10, 2014 at 9:39 a.m., Claimant presented to the emergency room at Baxter Regional Medical Center with a crush injury to his right fourth finger. He related that he got it caught in [a] lift at work that day. Claimant was noted to be alert, oriented to time, place and person, and to have normal speech. Examination showed a degloving injury to the volar surface of the finger. The record reflects that Claimant was the one who provided the history for the record. The social history portion of the record reads: He

17 Zelk - Claim No. G does not smoke. He rarely drinks alcohol. That day, Dr. Russell Rauls performed a debridement of the injured finger. On October 15, 2014, Rauls wrote that he was keeping Claimant off duty. On October 22, 2014, Claimant told the doctor that he had been terminated by Eaton. Rauls assigned him light duty with no pushing, pulling or lifting great than 10 pounds of that right arm. On November 14, 2014, he was noted to be healing well. Dr. Rauls altered the lifting restriction to 20 pounds. On January 14, 2015, Claimant told Rauls that while the finger was still sensitive, most of the motion had returned. The examination showed the laceration to be well-healed, with full flexion and extension of the joints in the finger along with full pronation and supination. Rauls wrote that Claimant could return to full duty with no restrictions. During the May 11, 2015 visit, he was found to be at maximum medical improvement. Claimant was administered a drug test for, inter alia, the presence of marijuana on April 5, 2005 as a precursor to his hiring at Eaton. He passed it. His post-accident test, however, which occurred the day of his finger injury, came back positive for marijuana. reads: Non-medical Records Respondents Exhibit 1 contains a witness statement by Tommy Lawhorn that On October 10 th I was at S&I #38 helping Jerry Zelk run Dynacraft Hose thru S&I line. I loaded a Reel on take up and Jerry was loading a reel on let-off. I saw Jerry load a Reel of Hose, and Push lever to Raise the Reel. Jerry then realized he did not get axle far enough In the Reel. Jerry then let the Reel Back down to adjust the axle. When Jerry went to move the axle further in he came into contact with the lever that activates the take-up smashing his Right Ring finger between Axle and take up. I then Ran down to where Jerry was and asked him if he was ok. Jerry said yes he was fine that it only got his glove. Then Jerry went to the other end of the machine and started filling out job card. I then approached Jerry again and asked him if he was sure he was ok, he said he was fine. I then asked him if he would

18 Zelk - Claim No. G take off his glove and he did. Jerry seemed to be supprised [sic] when he saw his finger all smashed up. I then took Jerry Back to Production office to start first aid, then realized we needed to go to the emergency Room. A form in this exhibit reflects that Claimant was terminated on October 20, 2014 for failing the post-incident drug test. ADJUDICATION A. Constitutionality As stated above, Claimant filed a Motion to Recuse and Notice of Intent to Introduce Evidence at Hearing, along with a brief in support thereof. Therein, he has argued, inter alia, that the provisions of the Arkansas Workers Compensation Act that provide for the establishment of administrative law judges are unconstitutional. The points raised in Claimant s motion are identical to those considered and rejected by the Arkansas Court of Appeals in Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70,250 S.W.3d 263 (Ark. Ct. App. 2007), pet. for rev. denied, No (Ark. May 3, 2007), and its progeny. Claimant did not seek to distinguish Long or to argue that it should be modified or overruled. Hence, the Act is constitutional, and Claimant s motion is hereby denied. B. Compensability Claimant has alleged that he suffered a compensable injury to his right ring finger while working at Respondent Eaton on October 10, Respondents have denied coverage on the basis that Claimant tested positive for marijuana after the accident. Claimant has argued that his injury was not substantially occasioned by the use of illegal drugs. Arkansas Code Annotated (4)(B)(iv) (Repl. 2012) provides:

19 Zelk - Claim No. G 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 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. As stated above, Claimant s urine drug screen administered the date of the incident showed the presence of marijuana in his system. Claimant is an admitted long-time user of this drug. In fact, his testimony was that he smoked marijuana five to six hours prior to his 9:00 a.m. injury. Possession of marijuana is illegal in the State of Arkansas. See Ark. Code Ann et seq. (Supp. 2013). A presumption thus exists under the statute quoted above that Claimant s alleged finger injury was substantially occasioned by the use of this illegal drug. Flowers v. Norman Oaks Const. Co., 341 Ark. 474, 17 S.W.3d 472 (2000); Waldrip v. Graco Corp., 101 Ark. App. 101, 270 S.W.3d 891 (2008). The phrase substantially occasioned in this instance requires that there be a direct causal link between the use of the drugs and the injury in order for the injury to be noncompensable. Waldrip, supra.

20 Zelk - Claim No. G The presumption is a rebuttable one. Whether Claimant has overcome the presumption is a question of fact for the Commission s determination. Weaver v. Whitaker Furniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996). The determination of a witness credibility and how much weight to accord to that person s testimony are solely up to the Commission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must sort through conflicting evidence and determine the true facts. Id. In so doing, the Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. Id. A claimant s testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). In Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858, the Arkansas Supreme Court addressed a case in which a claimant and a co-worker 2 were burned in an explosion that resulted from their using a cutting torch to remove the top of a barrel that apparently contained gasoline. A urine drug test showed the presence of marijuana metabolites in his system. In reversing and remanding the decision of the Full Commission to deny relief, the Arkansas Supreme Court found that Claimant successfully rebutted the presumption that his injuries were substantially occasioned by his use of marijuana. The court wrote: The above evidence can be summarized by concluding that no one saw Prock intoxicated on the day of the accident, no one saw him ingest anything, no one had seen him impaired in any way at work on prior 2 The co-worker s case, the companion case to Prock, supra, is Edmisten v. Bull Shoals Landing, 2014 Ark. 89, 432 S.W.3d 25.

21 Zelk - Claim No. G occasions, and, most importantly, that he performed a task that he had been asked to do in the same manner in which he had habitually performed it in the past [using a cutting torch to open a barrel as opposed to using a less flammable method such as an air chisel]. In examining the case at bar in light of the points highlighted above by the Prock Court, it is clear that the two are readily distinguishable. It is true that, as in Prock, no one in the instant case testified that he/she saw Claimant intoxicated on the day he was hurt. But this must be analyzed more in-depth. The claimant in Prock testified that he did not use marijuana for over a week prior to the explosion. Here, Claimant admitted that he regularly smoked marijuana for 40 years and he smoked just five to six hours before the incident in which he injured his finger. While at first his testimony was that he used the illicit drug to treat his hypertension, he ultimately admitted that his use of marijuana predated the onset of the condition by 20 years and that he used it recreational[ly]. Amazingly, Claimant at the hearing denied he had a drug problem, despite the fact that his selling and use of the substance had led to, inter alia, his incarceration. The evidence reflects that no one took note that Claimant appeared intoxicated on October 10, 2014 because no one had reason to suspect that he was. As his supervisor Lawhorn testified, Eaton has a zero tolerance policy with respect to the consumption of illegal substances such as marijuana. Claimant termed the policy as requiring complete abstinence. Not only did Claimant admit that he was aware of this, but he even admitted that he stopped using marijuana for a time prior to going to work for Eaton so that his prehire drug test would come back clean. In other words, he deceived his would-be employer into believing that he did not use illegal drugs. Lawhorn testified that he did not notice that Claimant was intoxicated that morning. But he at that point was not aware that Claimant

22 Zelk - Claim No. G was a regular user of marijuana and had consumed it just a few short hours before coming to work that day. The second element that the Prock Court focused on was that no one saw Mr. Prock ingest illegal drugs the day he was injured. Likewise, no one saw Mr. Zelk, the claimant here, smoke marijuana on the morning of October 10, But he admitted doing just that. As for the third element in Prock, that no one had seen him impaired at work on prior occasions, the evidence at bar shows this to be of no consequence. Claimant himself admitted using marijuana on a daily basis in the early morning hours before going to work at Eaton. The Arkansas Supreme Court wrote that the most important element that showed that Prock had rebutted the presumption that his injury was substantially occasioned by his use of marijuana was that he was injured while performing task that he had done in the same manner in which he had habitually performed it in the past. There, that task was using a cutting torch to open a barrel. Here, the task was operating the S&I machine. The evidence at hand shows that on the morning in question, Claimant was working with Lawhorn. He was loading a reel onto the let-off, but did not push the axle in far enough. Per his training, he was supposed to correct this by removing the reel, adjusting the axle, and reloading the reel. He did not do this, but instead took a short-cut by attempting to push the axle in while the reel was still on the machine. However, while this was being done, the take-up lever was engaged and the assembly raised back up, catching Claimant s right ring finger.

23 Zelk - Claim No. G Lawhorn testified that he witnessed this and that Claimant bumped the lever accidentally. Thus, his apparently being taken by surprise did not leave him enough time to get his hand completely out of the way. But this does not comport with Claimant s own testimony. At the hearing, he specifically denied accidentally hitting the lever. To the contrary, his testimony was that he intentionally engaged the lever and was intent on adjusting the axle as the assembly was returning to its upward position. At one point, he stated that he put the switch back up. In another response, he stated: I was just moving pipe over and I raised it at the same time and that s the reason my finger got caught. However, according to him, the machine malfunctioned and raised much faster than it should have. Lawhorn denied that there was any problem with the machine, testifying that the only adjustment made to it in the aftermath of Claimant s injury was to alter the position of the lever to help ensure that it would not be engaged accidentally. After consideration of the evidence, I credit Claimant s testimony that he engaged the take-up lever intentionally; and I credit Lawhorn s testimony that the machine was functioning normally. During the Commission s questioning of Lawhorn, the following exchange took place (and has been quoted above): Q. Had you ever seen him make that maneuver before? A. No, I hadn t, but I m sure he has and I m sure other people have. The maneuver was the short-cut discussed above: the adjustment of the placement of the axle without removing the reel from the frame of the machine. No follow-up questioning was done on this matter by any party, so it is unknown how Lawhorn came to believe that Claimant had done this before. While at first blush this answer seems to place this case in line with the situation in Prock, supra, a closer look is needed.

24 Zelk - Claim No. G Was Claimant injured because he had performed an act while, not allowed under his training, he had done before without incident? And then, in the course of doing so, did he simply bump a lever accidentally, causing the finger injury? If this were true, and all there was to this matter, it is arguable that under Prock, the presumption might well be rebutted. But the evidence shows that there was more to it than that. Again, the engagement of the take-up lever was not accidental in nature. Claimant admitted that he took the extra-hazardous step of not only adjusting the axle while not unloading the reel, but that he intentionally activated the lever before the adjustment was completed. That is clearly not what Lawhorn stated that he was sure that Claimant and co-workers had done for, again, it was his testimony that the lever was bumped inadvertently. Prock is thus distinguishable because as the evidence in that case showed, the action that caused the claimant s injury there the using of a cutting torch to open a barrel had been repeated before. Here, the evidence does not preponderate that Claimant had triggered the lever in the past while still adjusting an axle. But even if the converse were true, I nonetheless find that the reasoning in Prock would not support a finding that the presumption has been rebutted in the case at hand. This is because in Prock, there was a factual dispute concerning the extent of the claimant s marijuana use. Because of that, it makes sense that the Arkansas Supreme Court in that case focused on the fact that the claimant had engaged in the conduct in question on other occasions when it could not be established that he had used marijuana close in time thereto. Here, however, Claimant has admitted to being a regular, daily user of the drug before going to work on Eaton. For that reason, Prock is distinguishable.

25 Zelk - Claim No. G Other factors show that the presumption has not been rebutted. Claimant in his testimony agreed that he should not have had his hand where it was when he engaged the lever. His testimony that the assembly raised faster than normal, assuming that it was sincere testimony, calls into his question his perception in light of the credited testimony that the machine was operating normally. In addition, Claimant s curious response after his finger was severely injured repeatedly stating that only the glove had been caught and only examining the area when requested by Lawhorn again calls his perception into question. In sum, Claimant has not rebutted the presumption that his injury was substantially occasioned by the use of illegal drugs. The factors cited by the Arkansas Supreme Court in Prock, supra, do not weigh in his favor. He has thus failed to prove by a preponderance of the evidence that his right finger injury is compensable. C. Remaining Issues Because of the above finding, the remaining issues whether Claimant is entitled to reasonable and necessary medical treatment, temporary total disability benefits and a controverted attorney s fee are moot and will not be addressed. CONCLUSION In accordance with the findings of fact and conclusions of law set forth above, this claim for initial benefits is hereby denied and dismissed. IT IS SO ORDERED. Hon. O. Milton Fine II Administrative Law Judge