It’s axiomatic that in virtually all workers’ compensation cases it is the fact-finder–the Industrial Commission, Appeals Board, or the hearing officer–who must pass upon the credibility of witnesses; the appellate court may not do so. Occasionally, however, the fact-finder gets so caught up in its concerns about credibility that it fails to examine other appropriate or necessary issues. The Court of Appeals of Arkansas recently instructed the state’s Workers’ Compensation Commission that it had made that mistake twice during 2011–twice, that is, in the same case. In Gentry v. Arkansas Oil Field Servs., 2011 Ark. App. 786, 2011 Ark. App. LEXIS 818 (Dec. 14, 2011), the Arkansas Court of Appeals again reversed the Commission’s finding that an injured worker had failed to rebut the presumption that his accident or injury was substantially occasioned by his ingestion of illegal substances. Sending the case back for the third consideration by the Commission, the appellate court again cautioned that, in this case, the injured worker’s credibility had nothing to do with causation.
The worker was injured when several casing pipes, each weighing several hundred pounds, crushed his ankle after they rolled off a forklift too quickly. After the accident, the worker tested positive for methamphetamine and amphetamines. The Commission denied the worker benefits, stating that he had failed to rebut the statutory presumption that the presence of illegal drugs had substantially occasioned his injury. He appealed that decision and in late April, the Court of Appeals reversed and remanded, requiring the Commission to render findings of fact on whether the worker rebutted the presumption that his accident or injury was substantially occasioned by his ingestion of illegal substances [Gentry v. Arkansas Oil Field Servs., 2011 Ark. App. 306, 2011 Ark. App. LEXIS 336 (Apr. 27, 2011) (Gentry I)].
Following remand, a majority of the Commission again denied benefits, finding that there was not enough evidence of record to rebut the statutory presumption. The worker again appealed and again the Court of Appeals reversed.
Noting that the Commission’s second opinion was “strikingly” similar to its first, the appellate court quoted from the the dissenting commissioner’s opinion which said that the majority of the Commission had failed to address the causation factor. The issue wasn’t whether there were illegal drugs in the worker’s body at the time of the accidental injury; that had previously been decided in favor of the employer. The issue was whether such presence of drugs had any causal connection to the accident and injury. The determination of that issue did not depend upon the worker’s credibility regarding his use of methamphetamines. Again, quoting the dissenting commissioner, the court said there appeared to be no connection between the worker’s inability to avoid being struck by the pipes and the presence of drugs in his system. “Simply put, the actions of the forklift driver caused the accident, not the presence of drugs in the claimant’s system.”