affirming the denial of worker’s compensation benefits, and rejecting expert testimony concerning the inability of a urine test to determine whether marijuana had affected a person’s capacity to function, when the legislature had set no specific testing requirements
How later courts described this case
- affirming the denial of worker’s compensation benefits, and rejecting expert testimony concerning the inability of a urine test to determine whether marijuana had affected a person’s capacity to function, when the legislature had set no specific testing requirements
Written by the judges who cited it.
The opinion
Andree Layton Roaf, Judge, concurring. I concur in affirming this case. I do so because the appellant has failed to raise the issue that would allow us to reverse — whether a test that shows only the presence of non-psychoactive metabolites of marijuana sufficiently demonstrates the “presence ... of illegal drugs” required to invoke the rebuttable presumption provided for in Arkansas Code Annotated § ll-9-102(5)(B)(iv)(b) (Repl. 1996).
This court is mandated to strictly construe workers’ compensation statutes. Arkansas Code Annotated § ll-9-709(c)(3) (Repl. 1996). Stephens v. Millican, 58 Ark. App. 275 , 950 S.W.2d 472 (1997). Surely this mandate would not permit us to equate the presence of a by-product from the breakdown of a drug with the drug itself. The statute is unambiguous — it requires the presence of the drug. It seems hardly necessary to say that “presence” means “current existence” or “immediate proximity in time or place.” American Heritage College Dictionary 1082 (3d ed. 1993).
It is true that the appellant argued that the presumption that his accident was substantially occasioned by the use of an illegal drug should not be invoked because the test employed was not “reasonable and responsible” as required by Ark. Code Ann. §11-9-103 (5)(b)(iv)(c) (Repl. 1996). His three-prong challenge to the test, however, misses the mark. First, he contends that the test reports are not properly certified, and second, that they do not indicate that the test was done by properly trained personnel. With regard to his third, challenge which goes to the substance of the test, he contends only that urine tests cannot show “impairment” or “intoxication.” However, the statute in question does not require a showing of impairment, and this argument is thus beside the point.
Because Graham does not argue that there is no evidence of the presence of the illegal drug, I must concur in an affirmance. Given the fact that the presumption had been invoked, I cannot say that there was not substantial evidence to support the finding that Graham failed to rebut this presumption.
Arey, J., joins.