The opinion
Cite as 2019 Ark. App. 603
ARKANSAS COURT OF APPEALS
Digitally signed by Elizabeth
Perry
Date: 2022.08.09 13:49:21 -05'00' DIVISION III
Adobe Acrobat version: No. CV-19-149
2022.001.20169
Opinion Delivered: December 11, 2019
JASON PAPAGEORGE
APPELLANT APPEAL FROM THE ARKANSAS
WORKERS’ COMPENSATION
V. COMMISSION
[NO. G603438]
TYSON SHARED SERVICES, INC.,
AND TYNET CORPORATION
APPELLEES AFFIRMED
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
2
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
3
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 chicken panini and drank a Bud
Light. On the flight from Dallas to the Northwest Arkansas Regional Airport, Jason drank
two glasses of red wine.
When Jason and Shelby arrived at the Northwest Arkansas Regional Airport at
around 8:00 p.m., Jason’s parents met them there and provided them sandwiches for dinner.
In the airport parking lot Shelby asked Jason if he was okay to drive, and he said that he was
and he drove them home. When Jason arrived home, he ate his sandwich and some chips
and drank a Bud Light. Thereafter, Jason unpacked and was making preparations for the
next morning’s early flight, during which he drank some more beer. Jason could not
remember exactly how many beers he drank, but he thought it was two or three. Jason
testified that he drank his last Bud Light at about 10:00 p.m. and went to bed around 11:00
p.m.
Jason slept through his alarm, awoke at 3:50 a.m., and left for the airport without
eating breakfast. Jason testified that he was frantically trying to make his flight and was
driving through a construction zone at sixty miles an hour when he went through a curve,
4
jerked the steering wheel, overcorrected, and flipped his car two or three times. Jason
testified that he is familiar with this stretch of road and should have been going thirty miles
an hour, but that he made an error in judgment by driving too fast. Jason stated that at the
time of the accident he was not impaired in any way by alcohol and that the accident
occurred because he was driving too fast around a dangerous curve.
The first person to respond to Jason’s accident was Chris Rayl. Chris testified that
he was driving to the gym that morning when he saw Jason’s car upside down on its roof.
Chris called 911 and conversed with Jason until emergency personnel arrived. Chris
observed a strong odor of burning plastic that dissipated when the car shut off. Chris
described his conversation with Jason as “really calm” and stated that Jason was
communicating very clearly. Chris did not smell alcohol and did not suspect that Jason was
intoxicated. When asked on cross-examination whether Jason was intoxicated, Chris stated
that he “couldn’t tell either way.”
Patrick Kabanuck, a paramedic, arrived at the scene and asked Jason standard
assessment questions while waiting for an emergency unit to arrive. Patrick testified that
Jason was fully alert and oriented and did not slur his speech. Patrick stated that he did not
detect the smell of alcohol or observe anything to suggest that alcohol was involved in the
accident. Patrick also stated that, as a paramedic he cannot determine for sure whether
someone is intoxicated, and that the only way to be sure would be through a blood test or
sobriety test administered by a police officer.
After Jason was taken to Washington Regional Medical Center, he was visited by
Corporal John Bright, who took his statement. Corporal Bright was not the investigating
5
officer but was asked by the investigating officer to take Jason’s statement. When Corporal
Bright arrived at the emergency room, Jason was lying in bed wearing a neck brace and
there were IVs attached. Corporal Bright testified that Jason did not have difficulty giving
a statement, and that Jason told him he was driving too fast and lost control of the car.
Corporal Bright did not have any knowledge of alcohol consumption by Jason prior to the
motor-vehicle accident. Although he was not the investigating officer and did not prepare
the police report, Corporal Bright stated that the police report reflected that Jason appeared
normal and was not impaired by alcohol. Corporal Bright also stated that, had he known
Jason had consumed several alcoholic drinks within eight hours of the accident, he would
have gone to the investigating officer and requested that he subpoena a blood draw.
Jason’s wife, Shelby, testified on his behalf and generally agreed with Jason’s account
of his alcohol consumption on the night before the accident. Shelby stated that Jason did
not appear intoxicated when they arrived at the airport the night before, nor did he appear
impaired when she saw him at Washington Regional Medical Center the next morning.
Jason’s parents also testified, and they both observed no signs that Jason was intoxicated
when they saw him at the airport the night before or at the hospital the next morning.
The medical records from Washington Regional Medical Center do not indicate that
any testing was done to determine if alcohol was present in Jason’s system, nor do they give
any indication that Jason was suspected to be intoxicated. However, after Jason was flown
to Springfield Mercy Hospital, a blood draw was performed there, and it indicated the
presence of alcohol in Jason’s blood.
6
Dr. Henry Simmons, a physician and toxicologist, testified as an expert witness.
Dr. Simmons was asked by Tyson to review the medical records, deposition testimony, and
associated documents related to Jason’s car accident in order to form an opinion about the
potential factor that alcohol played in causing the accident. Dr. Simmons authored a report,
which was admitted into evidence and provides in pertinent part:
4. At the request of an attorney for Tyson Shared Services, Inc., I reviewed a set
of documents pertaining to a single vehicle accident involving Mr. Jason Papageorge
on 3/16/16. Specifically, I studied accident related medical records from
Washington Regional Hospital in Fayetteville, Arkansas and Mercy Hospital in
Springfield, Missouri; depositions from Shelby and Jason Papageorge; Claimant’s
Answers to Respondent’s interrogatories and Requests for Production of
Documents, in addition to literature referenced in Attachment 1. My purpose in so
doing was to investigate the potential for the alcohol that he drank during the hours
prior to the event to have played a causal role in the accident.
5. In brief, I concluded that Mr. Papageorge had consumed a toxicologically
significant amount of alcohol during a relevant time. Furthermore, the amount of
alcohol still circulating in his blood at the time of the accident prohibited the safe
operation of a motor vehicle and it contributed significantly to the cause of the
accident at issue. In the paragraphs that follow, I will outline the bases for my
opinions which I hold with a reasonable degree of medical and toxicological
“certainty” or probability. Should additional information become available, I reserve
the right to amend my conclusions to the extent warranted by the new data.
....
12. Unfortunately, the concentration of alcohol in the “blood” drawn at 09:26 at
Mercy Hospital was found to be 110 mg/dL or 0.11%. If this concentration is that
in whole blood, then even more than five hours after the accident, it still exceeded
the statutory level of intoxication by a factor of about 1.37 or 37%.
13. However, in clinical settings alcohol concentrations are often determined in
serum or plasma in which they are nearly the same. The laboratory report from
Mercy Hospital does not specifically identify the matrix as whole blood, serum, or
plasma. However, since the commonly used statutory level of 0.08% is ordinarily
whole blood based and whole blood levels may differ significantly from those in
simultaneously collected serum or plasma, the distinction is important. Plasma is
what is left after white cells, red cells and platelets are removed from whole blood
7
and serum is the liquid that separates from clotted blood when it is spun in a
centrifuge.
14. Using work published by Rainey to convert serum alcohol concentrations to
their equivalents in whole blood within a 95% confidence interval, one finds that a
110 mg/dL level in serum corresponds to one in whole blood lying between 78.6
and 116 mg/dL. These values may also be written as 0.0786 to 0.116%. The
midrange of this interval is 97.3 mg/dL or 0.0973%.
15. Based upon testimony from Mr. Papageorge and his wife, before the accident
about six hours had passed since he finished his last meal and at least five hours since
he last drank alcohol. Conservatively, all of the alcohol he drank on 3/15/2016
would have been absorbed from his gut and his concentration would have been
falling in his blood from its maximum level for some time by 04:09 on 3/16/2016.
Its concentration would have continued to drop thereafter as well.
16. Alcohol is largely metabolized by enzymes in the liver and to a much lesser
degree is excreted in the urine, exhaled air and sweat. As this occurs, its
concentration decreases in body fluids.
17. Although Mr. Papageorge had modestly elevated transaminase levels at
Washington Regional just after the crash, additional testing clearly indicated that his
liver function was normal at least up to the time of the accident. Transaminases are
enzymes present at much higher levels in liver cells than in the blood. There is no
indication in the discharge summary from Mercy Hospital that he developed
functionally significant hepatic dysfunction at any time despite some elevations in his
transaminase levels at Washington Regional Hospital which may have been due to
hepatic compression given his suspension in the vehicle.
18. Persons in good health ordinarily clear alcohol from their blood at about 10
to 30 mg/dL/hr [i.e. 0.01 to 0.03%hr]. These clearance rates ordinarily increase up
to a point with regular consumption of alcohol. Mr. Papageorge’s precise, baseline
clearance rate at the time of the accident is unknown but was likely normal given his
good health. However, he experienced spinal shock post-accident which likely
reduced blood flow through his liver and potentially depressed his alcohol clearance
rate below his baseline, although his clearance was never at a standstill even prior to
treatment. Both the Neosynephrine (phenylephrine) and fluids he received not only
increased his blood pressure and perfusion but also specifically mitigated any
hypoperfusion of the liver attributable to spinal shock.
19. If Mr. Papageorge’s pre-accident rate of alcohol clearance were only 10
mg/dL/hr (0.01%/hr) and if his clearance rate had been hypothetically depressed
50% below its baseline to just 5 mg/dL/hr (0.005%/hr), which I doubt given his
evident clinical picture, his whole blood alcohol level would still have exceeded 80
8
mg/dL or 0.08% at the time of his accident because it would have continued to fall
to the time of the blood draw at 09:26 and beyond. This statement is valid even if
one assumes that Mercy Hospital reported his concentration in serum and that, if
again for his benefit, one assumes that his whole blood equivalent level lay at the
lower end of the estimated whole blood range, 78.6 mg/dL (0.0786%), at 09:26 some
five hours post-accident.
20. If the alcohol concentration reported by Mercy Hospital were that in whole
blood instead of serum, the level would have exceeded 0.11% at the time of the
accident.
21. Alcohol concentrations above 0.08% are ordinarily associated with
impairments that significantly reduce one’s ability to operate a motor vehicle safely.
Examples include in part diminished attention, impaired judgment, compromised
sensory function, reduced response times and some degree of sedation.
22. In this case, the impact of the alcohol compounded the after effects of 8 to 9
days of non-routine activities away from home in another time zone and aggravated
the effects of receiving only 4 to 5 hours of sleep the night before.
23. In summary, Mr. Papageorge consumed a toxicologically significant amount
of alcohol during a relevant period of time. The amount of alcohol circulating in
blood at the time of the accident was sufficient to prohibit the safe operation of a
motor vehicle. Consequently, within a reasonable degree of medical and
toxicological probability or certainty, it is my opinion that alcohol contributed
significantly to the cause of the accident at issue.
The deposition of Julie Witt, the core lab manager of operations at Springfield Mercy
Hospital, was introduced as evidence of the validity of the blood draw. Julie testified that
although it was not specified in the lab report, Jason’s plasma was tested. Julie stated that
the blood test was ordered by Thomas Lewis, and that after the blood was drawn it arrived
at the lab with three indicators including the patient’s full name, birth date, and either an
epic number or Social Security number. Julie explained that a designated individual receives
the sample in a pneumatic tube and submits it for analysis. There are safeguards built into
the testing and parameters for calibration and quality control. Julie stated that the machine
that runs the test is calibrated daily if needed based on FDA regulations, and that within a
9
half hour the test has been done and verified and the reliability of the result is assured enough
to be published.
In Dr. Simmons’s hearing testimony, he stated that when he authored his report
about the contribution of alcohol to the accident, he was not yet aware of whether the
blood draw tested Jason’s whole blood or plasma. Dr. Simmons testified that after reviewing
Julie Witt’s deposition, he thought the test result was reliable. Dr. Simmons testified that,
after hearing all the testimony at the hearing, he stood by the opinions given in his report.
Dr. Simmons thought that at the time of the accident, Jason’s blood-alcohol level was “at
least in the 0.1 range using exceedingly conservative modeling.” Dr. Simmons further
testified Jason’s apparent lack of appreciation of the danger of going into the curve at a high
rate of speed suggests a problem with thinking and perception that was completely consistent
with the effects of alcohol. 1
In this appeal, Jason argues that the Commission erred in denying compensability for
his workers’-compensation claim because he plainly and clearly rebutted the statutory
presumption that the accident was substantially occasioned by the use of alcohol. Jason
contends that despite the blood test showing the presence of alcohol in his system and the
opinion of Dr. Simmons as to causation, he successfully rebutted the presumption because
six witnesses who interacted with him the night before the accident and the morning of the
accident all consistently testified that there was no indication that Jason was intoxicated or
impaired. Jason asserts that the passerby who stopped to help him, the paramedic, and the
1
We observe that Jason did not present any expert witness to refute Dr. Simmons’s
opinions.
10
police officer who took his statement at the hospital all testified that Jason was speaking
clearly and coherently and did not smell of alcohol. Moreover, Jason’s wife, mother, and
father observed no sign of impairment when they saw Jason at the hospital.
Jason relies on ERC Construction Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d
212 (1998), where the supreme court stated that the meaning of the statutory phrase
“substantially occasioned by the use of alcohol” requires that there be a direct causal link
between the use of alcohol and the injury in order for the injury to be noncompensable.
Jason contends that here there was no causal link between the use of alcohol and the car
accident. Jason argues that the accident was instead caused by his driving too fast around a
dangerous curve trying to make it to the airport on time to catch a business flight.
In support of his argument, Jason cites the companion cases Edmisten v. Bull Shoals
Boat Landing, 2014 Ark. 89, 432 S.W.3d 25, and Prock v. Bull Shoals Boat Landing, 2014 Ark.
93, 431 S.W.3d 858. In these cases, Edmisten and Prock worked as welders and were
instructed to get a couple of barrels and cut the tops off them. Prock used an acetylene
torch to cut the tops off the barrels, and Edmisten assisted him by holding the tops of the
barrels with channel locks. Prock cut the top off the first barrel without incident, but when
he began cutting the second barrel, it exploded and both men were engulfed in flames.
Prock testified that he had used acetylene torches to open the barrels at least fifteen to twenty
times before the explosion and that neither his boss nor anyone else had ever objected to
his opening the barrels that way. After the accident, both men tested positive for
cannabinoids, which triggered the statutory presumption that the accident was substantially
11
occasioned by the use of illegal drugs. The claimants’ coworkers testified that neither of
them appeared to be impaired on the day of the accident.
The Commission denied compensability of both Edmisten’s and Prock’s workers’-
compensation claims, finding that both of them had failed to rebut the statutory presumption
that the accident was substantially occasioned by their drug use. However, in both Edmisten
and Prock, our supreme court reversed the Commission’s decision and awarded
compensability. In Prock, the supreme 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 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. After a review of the Commission’s
decision, we conclude that the Commission arbitrarily disregarded any testimony that
supported Prock’s claim in addition to twisting, or leaving out of its opinion
altogether, certain testimony that supported Prock. See also Edmisten v. Bull Shoals
Landing, 2014 Ark. 89, 432 S.W.3d 25. While it is true that appellate courts defer
to the Commission on issues involving the weight of evidence and the credibility of
witnesses and that it may be insulated to a certain degree, it is not so insulated as to
render appellate review meaningless. See Freeman v. ConAgra Frozen Foods, 344 Ark.
296, 40 S.W.3d 760 (2001). The Commission may not arbitrarily disregard the
testimony of any witness and, likewise, the Commission may not arbitrarily disregard
other evidence submitted in support of a claim.
Prock, 2014 Ark. 93, at 15−16, 431 S.W.3d 858, 868−69.
Jason asserts that the present case is similar to Edmisten and Prock because no one saw
him intoxicated or consuming alcohol on the day of the car accident. Jason contends that,
as in Edmisten and Prock, the Commission here arbitrarily disregarded the testimony
supporting his claim. Jason argues that the Commission erred in disregarding the testimony
of the numerous witnesses who saw no signs that he was intoxicated that day, as well as
medical records that failed to document any suspicion of intoxication. Jason claims that had
12
the Commission properly considered this evidence, it would have found that he rebutted
the statutory presumption. Jason thus asks that we reverse the Commission’s decision
denying compensability of his workers’-compensation claim and award him benefits.
We hold that the Commission’s decision displays a substantial basis for denying
compensability. A blood-alcohol test revealing even a low level of alcohol is sufficient to
trigger the statutory presumption. See ERC Contracting, supra. In this case, the blood test
at Springfield Mercy Hospital detected an amount of alcohol in Jason’s blood that Dr.
Simmons conservatively estimated would have been 0.1% at the time of the accident. Thus,
there is no doubt that the statutory presumption was triggered here.
Despite the positive blood-alcohol test and the fact that Jason had admitted to
drinking multiple beers several hours before the accident, Jason relies on the witnesses who
saw no signs of his intoxication after the accident. However, the first of these witnesses,
Chris Rayl, stated that he avoided looking at Jason because he did not want to witness his
injuries and that he could not tell either way whether Jason was or was not intoxicated.
The paramedic, Patrick Kabanuck, acknowledged that the only way to “truly determine”
intoxication was through a blood test or sobriety test administered by a police officer. And
Corporal Bright, who was not the investigating officer but took a statement from Jason
at the hospital, testified that he would have requested a blood draw had he known that
Jason had been drinking alcoholic beverages within the past eight hours. Finally, in
Dr. Simmons’s testimony, he indicated that the fact that witnesses did not smell alcohol on
Jason’s breath was not unusual and was irrelevant to Jason’s blood-alcohol level.
13
Contrary to Jason’s argument, this case is unlike Edmisten or Prock because here, the
Commission did not disregard any testimony. In its opinion, the Commission specifically
set forth all of the testimony upon which Jason now relies, and after considering that
testimony, along with the testimony of Dr. Simmons, the Commission found that Jason
failed to prove by a preponderance of the evidence that alcohol did not substantially occasion
the car accident causing his injuries. This finding was supported by substantial evidence.
Dr. Simmons conservatively estimated a blood-alcohol level of 0.1% at the time of
the accident. This is clearly a significant level given that it is unlawful to operate a motor
vehicle if the alcohol concentration in the person’s blood is 0.08% or more. See Ark. Code
Ann. § 5-65-103(a)(2) (Repl. 2016). The purpose of our laws against driving while
intoxicated is to prevent accidents and protect persons from injury. Rogers v. State, 94 Ark.
App. 47, 224 S.W.3d 564 (2006).
Dr. Simmons indicated in his testimony that the concentration of alcohol in Jason’s
blood would impair his judgment, perception, and reaction time. Dr. Simmons thought
that Jason’s act of speeding through a curve in a construction zone and failing to respond
in sufficient time to avoid an accident were consistent with the effects of alcohol. 2
Dr. Simmons’s ultimate opinion was that alcohol contributed significantly to the cause of
the car accident, and his opinion was credited by the Commission.
Pursuant to our standard of review, the issue is not whether we might have reached
a different result or whether the evidence would have supported a contrary finding; if
2
We note the marked difference between Jason’s accident and the accident in
Edmisten and Prock, which occurred when the claimants were merely trying to cut the top
off a barrel in the manner that had been habitually employed in the past without incident.
14
reasonable minds could reach the Commission’s conclusion, we must affirm its decision.
Ganus v. St. Bernard’s Hosp., LLC, 2015 Ark. App. 163, 457 S.W.3d 683. On this record,
we hold that reasonable minds could reach the Commission’s conclusion that Jason failed
to rebut the presumption that the accident was substantially occasioned by the use of alcohol.
Therefore, the Commission’s decision denying compensability is affirmed.
Affirmed.
HARRISON and MURPHY, JJ., agree.
Cullen & Co., PLLC, by: Tim Cullen, for appellant.
Roberts Law Firm, P.A., by: Jeremy Swearingen and David Tyler Mills, for appellees.
15