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Ashley v. Temporaries Plus3/15/2000
NOT DESIGNATED FOR PUBLICATION
AFFIRMED
The appellant, Lavell Ashley, appeals from an order of the Workers' Compensation Commission denying him benefits for an injury he sustained while working for appellee, Temporaries Plus, Inc., and finding that he failed to rebut the statutory presumption in Ark. Code Ann. § 11-9-102 (5) (B) (iv) (Repl. 1996) that his injury was substantially occasioned by the use of illegal drugs. On appeal, appellant argues that there was no substantial evidence to support the Commission's findings, that the admission of an unauthenticated drug test violated his right to cross- examination, and that Ark. Code Ann. § 11-9-102 (5) (B) (ii) is void for vagueness.
Appellant worked for appellee as a welder. On December 5, 1997, he was injured when a chain attached to a crane broke, causing a load of steel to fall on his left foot. After appellant was taken to the hospital for treatment of his injuries, his urine sample was taken to determine the presence of any illegal drugs. The test results were positive for cocaine metabolites and showed an amount greater than 1000 nanograms per milliliter. Subsequent to the injury, appellant filed a claim for workers' compensation benefits. Appellee controverted the claim contending that appellant's December 5th injury was substantially occasioned by the presence of illegal drugs in appellant's body.
At the hearing before the Administrative Law Judge, appellant testified that on the day before his injury, he attended a wedding reception of one of his friends. While at the reception, appellant testified that he "smoked a blunt" and "had two puffs off of it and passed it on around." He testified that he didn't know who made the blunt or know of the contents within the blunt. However, appellant admitted to using drugs one year before the accident, and attributed the positive result of cocaine metabolites in this incident to smoking the blunt with his friends. He stated that " e smoked it and I know it tasted funny, you know, but I guess they laced it with some cocaine in it. . . ." According to appellant, the accident occurred as he tried to steady of load of steel that was being removed from a truck. Appellant gave the following testimony in regard to his injury:
Jimmy [appellant's co-worker] began to raise the crane up to get it off the
truck. By that time, I got on the floor and was sitting up by the wall right
where you come in the door. No one told me to go over by the wall. I had to get over to this side in order to guide it because it was swinging like a fish, rocking while he was moving it. I was just trying to keep it from banging up the door when we were sliding it off the truck. That was the purpose of me steadying the load. He sent me down there to do my job so I had to help him get if off of there because we had just one chain wrapped around the whole bundle and it was going to flip back, so I had to balance it. About the time he had eased it off the truck, he stopped to let me down and the chains broke. It kind of tipped back and I could not get all the way out from under it and that's when it caught my foot and knee. When the chain broke, I actually had enough time to get my head out from under there. I was right at the back door by the post. I was right up against the post at the back doorway on the side. I did not hear the chain breaking. The only thing I saw was it starting to come down. When it started coming down, the chains clipped and so I just started backing off of it and about that time, it caught me. I could have gone back a little bit more, but this happened all of a sudden. We were right at the back door. When the chains broke, I was standing u
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