# Graham v. Turnage Employment Group > Court of Appeals of Arkansas · January 21, 1998 · 60 Ark. App. 150 URL: https://www.frixlaw.com/law-library/cases/9770751 ## Case - **Full name:** Billy Leon GRAHAM v. TURNAGE EMPLOYMENT GROUP and Wausau Insurance Companies - **Court:** Court of Appeals of Arkansas - **Decided:** January 21, 1998 - **Citations:** 60 Ark. App. 150; 960 S.W.2d 453; 1998 Ark. App. LEXIS 38 - **Precedential status:** Published - **Opinion:** Dissent by Griffen - **Judges:** Stroud, Bird, Arey, Crabtree, Roaf, Griffen - **Cited by:** 14 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/9770751 ## How later opinions describe it (automated extraction) - 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 ## Opinion text Wendell L. Griffen, Judge, dissenting. I dissent from the result announced and the reasoning employed in the majority opinion because it is clear that the appeEees did not carry their burden of proving the presence of “illegal drugs” so as to establish the rebuttable presumption created by Ark. Code Ann. § 11 — 9— 102(5)(B)(iv)(b) (Repl. 1997). As I mentioned in my dissenting opinion in Brown v. Alabama Electric Co., 60 Ark. App. 138 , 959 S.W.2d 753 , (1998), also decided today, there is no evidence in the record showing that marijuana or any other illegal drug was present. There was, therefore, no basis whatsoever for the Commission to hold that appellees had established an evidentiary basis for the rebuttable presumption that appellant’s June 13, 1995, injury was substantially occasioned by the use of illegal drugs, and no basis for requiring appellant to rebut the presumption. The employer and its workers’ compensation insurer plainly had the burden of proving the presence of illegal drugs in order to take advantage of the presumption, and the workers’ compensation law is unmistakably clear that a party having the burden of proof on an issue must establish it by a preponderance of the evidence. Ark. Code Ann. § 11 -9-704(c)(2) (Repl. 1997). Subsection (c) (3) states that administrative law judges, the Commission, and any reviewing courts shall construe the provisions of the workers’ compensation law strictly. Subsection (c)(4) provides that in determining whether a party has met the burden of proof on an issue, administrative law judges and the Commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party. Thus, it is remarkable, to say the least, that the majority now affirms the Commission’s decision that marijuana was present in appellant’s body at the time of his June 13, 1995, injury. The rules of strict construction and burden of proof should be applied to employers and insurance carriers the same way that they are applied to injured workers. The evidentiary and scientific truth is that no marijuana was proved to be present in appellant’s body or at any other relevant site related to his injury and workplace. The only thing that the urine specimen taken from appellant after his injury showed was that marijuana metabolites were present. There is no proof that marijuana metabolites are marijuana, or that marijuana metabolites are even a drug, let alone an “illegal drug.” Instead, the only expert opinion evidence came from Dr. Henry Simmons, whose testimony established that marijuana metabolites are by-products produced when the body has metabolized marijuana. There is a fundamental difference between illegal drugs and other drugs. Illegal drugs are specifically proscribed as such. They are not legal drugs, and they are not non-drugs. Marijuana is an illegal drug in Arkansas and is listed among the controlled substances prohibited by the Arkansas Controlled Substances Act ( Ark. Code Ann. § 5-64-101 et seq. (Repl. 1997)). Section 5-64-101 (n) defines marijuana as follows: “Marijuana” means all parts and any variety and/or species of the plant Cannabis that contains THC (Tetrahydrocannibaninol) whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. Nothing in that definition fits the proof in this case. There is no proof that any part, variety, or species of the plant Cannabis that contained THC was present in appellant’s body. In fact, Dr. Simmons unequivocally testified that the drug testing simply established that at some past time appellant had been exposed to THC, had absorbed the material, had metabolized it, and was excreting marijuana metabolites that were found in the urine specimen taken from him after his injury. There is no proof that the marijuana metabolites found in appellant’s urine specimen contained THC, the principal psychoactive agent in marijuana according to Dr. Simmons’ testimony. There is no proof that marijuana metabolites are illegal in Arkansas, or elsewhere, or that they have ever been illegal. Equally remarkable is that the majority today affirms the Commission’s finding that appellees met their burden of proving the presence of an “illegal drug.” Arkansas Code Annotated § 5-64-101 (k) (Repl. 1997) contains the following definition of “drug.” “Drug” means (1) Substances recognized as drugs in the official United States Pharmacopeia, official Homeopathic Pharmacopeia of the United States, or official National Formu-lary, or any supplement to any of them; (2) Substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or animals; (3) Substances (other than food) intended to affect the structure or any function of the body of man or animals; and (4) Substances intended for use as a component of any article specified in clause (1), (2), or (3) of this subsection. It does not include devices or their components, parts, or accessories. Appellees presented no proof that the marijuana metabolites found in appellant’s urine specimen matched any part of this definition, or that marijuana metabolites fit any other definition of “drugs.” One would think that adherence to the requirements that the workers’ compensation statute be strictly construed and that a party having the burden of proof on any issue be required to meet that burden by a preponderance of the evidence would require, at minimum, some proof showing that marijuana metabolites are drugs, or at least some explanation why no such proof is necessary. When the Arkansas General Assembly enacted Act 792 of 1993 and included the rebuttable presumption relied upon by appellees, it knew the difference between marijuana and marijuana metabolites. The General Assembly knew the difference between a drug and a by-product produced after a drug has been metabolized. The General Assembly made the rebuttable presumption dependent upon proof by a preponderance of the evidence that an illegal drug, and nothing less, was present in connection with an injury for which workers’ compensation benefits are sought. If the General Assembly had intended for the presumption to be triggered by mere proof of substances that are not drugs, such as metabolites, it could have included those substances in § ll-9-102(5)(B)(iv)(b). It did not do so. Instead, it declared that the Commission and reviewing courts are not to liberalize, broaden, or narrow the scope of the workers’ compensation statutes. See Ark. Code Ann. § 11-9-1001 (Repl. 1997). I cannot imagine a more flagrant violation of that legislative declaration than the decisions reached in these cases, whereby substances neither proven illegal nor drugs are judicially deemed “illegal drugs” by the Commission and the court of appeals, in the face of plain statutory language requiring that the workers’ compensation statutes be strictly construed without giving the benefit of the doubt to any party. If an injury must be substantially occasioned “by the use of illegal drugs” in order to disqualify a worker from receiving workers’ compensation benefits, it makes no sense to deny benefits based on that defense when the parties who assert the defense are unable to prove that “illegal drugs” are present, let alone that they substantially occasioned the injury. Therefore, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770751. Public record. Not legal advice.