# Flowers v. Norman Oaks Construction Co. > Court of Appeals of Arkansas · December 8, 1999 · 68 Ark. App. 239 URL: https://www.frixlaw.com/law-library/cases/6553048 ## Case - **Full name:** James FLOWERS v. NORMAN OAKS CONSTRUCTION CO., Inc. - **Court:** Court of Appeals of Arkansas - **Decided:** December 8, 1999 - **Citations:** 68 Ark. App. 239; 6 S.W.3d 118; 1999 Ark. App. LEXIS 814 - **Precedential status:** Published - **Opinion:** Dissent by Roaf - **Judges:** Agree, Griffen, Hart, Hays, Jennings, Meads, Neal, Pittman, Roaf, Stroud - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6553048 ## Opinion text Andree Layton Roaf, Judge, dissenting. I agree with the prevailing judges’ interpretation of Ark. Code Ann. § 11-9-102 (5)(B)(iv) (Repl. 1996), and their conclusion that this statute does not require a test by medical or law enforcement personnel to establish the presence of alcohol in order to trigger the statutory presumption that an injury or accident was substantially occasioned by the use of alcohol. However, I do not agree with their conclusion that there was “no proof presented” of the presence of alcohol in Flowers’s system, and, because Flowers also failed to present evidence rebutting the statutory presumption, I would affirm the Commission’s finding that Flowers’s injuries were not compensable. Flowers’s argument on appeal is that the Commission erred in finding that he was intoxicated at the time of his accident. However, the Commission did not find that Flowers was intoxicated, nor does the statute require such a finding. The Commission instead found that the evidence established the presence of alcohol, and that Flowers failed to rebut the presumption that its use substantially occasioned his accident and injuries. The issue to be addressed by this court is thus whether substantial evidence supports these findings. • When this court reviews workers’ compensation cases, it views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and will affirm if those findings are supported by substantial evidence. Aeroquip, Inc. v. Tilley, 59 Ark. App. 163 , 954 S.W.2d 305 (1997). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The issue on appeal is not whether this court might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, this court must affirm the Commission’s decision. Id. It is not the province of the court of appeals to substitute its judgment concerning matters of credibility for that of the Commission. Williams v. St. Vincent Infirmary, 59 Ark. App. 148 , 954 S.W.2d 302 (1997). It is the function of the Commission to determine the credibility of the witnesses and the weight given to their testimony. Whaley v. Hardee’s, 51 Ark. App. 166 , 912 S.W.2d 14 (1995). 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 it deems worthy of belief. McMillan v. U.S. Motors, 59 Ark. App. 85 , 953 S.W.2d 907 (1997). In Franklin Collier Farms v. Bullard, 33 Ark. App. 33 , 800 S.W.2d 438 (1990), this court held that circumstantial evidence is competent evidence to support a finding in a workers’ compensation case. Here, there were the chart annotations from the paramedics and the emergency-room nurse documenting that they smelled alcohol on Flowers. There was also the circumstantial evidence of the empty beer cans found on the site and the fact that Flowers had previously brought alcohol to the job. Hospital records indicate that Flowers stated that he drank about a twelve-pack or six-pack every day. Finally, Flowers admitted to consuming six to eight beers just hours before his 9:00 a.m. accident. Although Flowers claimed to have stopped drinking at around 11:00 p.m. on the previous evening and attributed the smell of alcohol to his failure to brush his teeth that morning, it is well settled that the Commission is not required to believe this portion of his testimony. Moreover, the presumption is triggered by any amount of alcohol, so it is irrelevant whether or not the quantity was sufficient to intoxicate Flowers. See, e.g., Continental Express v. Harris, 61 Ark. App. 198 , 965 S.W.2d 811 (1998). As to whether Flowers rebutted the presumption, as he must when the presence of a proscribed substance has been shown, the evidence that he presented on this issue was so sparse as to make it all but inevitable that the Commission would find that he did not meet his burden. Neither of the two co-workers who were present at the site when Flowers fell, and who later accompanied him to the hospital, testified on his behalf. Flowers instead relied exclusively on his own testimony, which in essence stated that he lost his balance and fell while he was trying, unaided, to position a two-foot by twelve-foot plank on a pump jack, while he stood on another plank some twenty-four feet above the ground. Losing one’s balance is simply not so inconsistent with intoxication as to compel the Commission, or this court on review, to conclude that the accident was not substantially occasioned by the presence of alcohol. Cf. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63 , 977 S.W.2d 212 (1998); Continental Express, supra. Because there is substantial direct and circumstantial evidence to support the Commission’s decision, I cannot say that reasonable minds could not reach the Commission’s conclusions, and I would affirm. Pittman and Jennings, JJ., and Hays, S.J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6553048. Public record. Not legal advice.