Prock v. Bull Shoals Boat Landing & Am. Home Assurance/Aig Claim Servs., Inc.

• Citation: 2014 Ark. 93,431 S.W.3d 858
• Decision Date: 10 April 2014
• Docket Number: No. CV–12–73.,CV–12–73.
• Parties: Greg E. PROCK, Appellant v. BULL SHOALS BOAT LANDING & American Home Assurance/AIG Claim Services, Inc., Appellees.
• Court: Supreme Court of Arkansas

2014 Ark. 93

431 S.W.3d 858

Greg E. PROCK, Appellant

v.BULL SHOALS BOAT LANDING & American Home Assurance/AIG Claim Services, Inc., Appellees.

No. CV–12–73.

Supreme Court of Arkansas.

Feb. 27, 2014.

Rehearing Denied April 10, 2014.

Spencer Law Firm, Mountain Home, by: Frederick S. “Rick” Spencer, for appellant.

Worley, Wood & Parrish, P.A., Little Rock, by: Jarrod S. Parrish, for appellants.

PAUL E. DANIELSON, Justice.

Appellant Greg Prock appeals from the order of the Arkansas Workers' Compensation Commission, which reversed, by a vote of 2–1, the decision of the Administrative Law Judge (“ALJ”) and denied and dismissed his claim against his employer, appellee Bull Shoals Landing.¹ He asserts two points on appeal: (1) that the Commission erred in finding that he did not rebut the presumption that his accident was substantially occasioned by his use of illegal drugs and (2) that the Commission's disregard of credibility determinations by the ALJ and the Commission's makeup, which he claims results in bias against the worker, violate his constitutional rights. Prock originally appealed the Commission's decision to the court of appeals, which affirmed the decision by a vote of 6–3 on the first point and 9–0 on the second. See Prock v. Bull Shoals Landing, 2012 Ark. App. 47, 390 S.W.3d 78 ( Prock II ). Prock petitioned this court for review, which we granted. When we grant review of a decision by the court of appeals, we review the case as though the appeal had originally been filed in this court. See Hudak–Lee v. Baxter Cnty. Reg'l Hosp., 2011 Ark. 31, 378 S.W.3d 77. After review, we reverse and remand to the Commission for a determination of benefits.

Prock's injuries arose following an accident at Bull Shoals Landing, where he was employed. On November 1, 2007, Prock and his co-employee, Matt Edmisten, ² were instructed by their supervisor, Steve Eastwold, to obtain two barrels from atop a hill and to cut the tops off the barrels. Prock and Edmisten did so, and they used an acetylene torch to successfully cut the top off the first barrel. However, when they began to cut the top off the second barrel using the torch, there was an explosion; both men suffered injuries and sought workers' compensation benefits. Following the accident, drug tests on both men came back positive.

On March 25, 2009, Prock's attorney sent a letter to the ALJ, along with a motion to recuse and a brief regarding his constitutional challenges to the Commission's jurisdiction. Specifically, Prock identified the following issues, which he intended to submit during the hearing before the ALJ: (1) whether the provisions of the Workers' Compensation Act, which authorize the Commission to appoint ALJs and grant ALJs the power to hear and decide claims for compensation, being part of the Executive Branch “subject to political influences,” violate the substantive and procedural requirements of due process; (2) whether the provisions of the Workers' Compensation Act, which authorize the Governor's appointment of members to the Commission and give the Governor sole authority over the Commission's appointment of ALJs, violate separation of powers by making judicial functions a part of and subject to the Executive Branch; (3) whether the provisions of the Workers' Compensation Act, which place the judicial function of adjudicating claims for workers under the Executive Branch, violate article 5, section 32 of the Arkansas Constitution in that the constitutional provision does not expressly permit the legislature to delegate judicial functions to the Executive Branch; ³ (4) whether the provisions of the Workers' Compensation Act, which place the judicial function of adjudicating workers' claims under the Executive Branch, violate article 2, section 3 of the Arkansas Constitution; ⁴ (5) whether the provisions of the Workers' Compensation Act, which place the judicial function of adjudicating workers' claims under the Executive Branch, violate article 2, section 2 of the Arkansas Constitution; ⁵ (6) whether provisions of the Workers' Compensation Act, which place the judicial function of adjudicating workers' claims under the Executive Branch, violate article 2, section 18 of the Arkansas Constitution; ⁶ and (7) whether provisions of the Workers' Compensation Act, which place the judicial function of adjudicating workers' claims under the Executive Branch, violate article 2, section 29 of the Arkansas Constitution. ⁷ In his motion to recuse, Prock moved for the recusal of the ALJ assigned to his case and the recusal of all present ALJs and Commissioners on the basis that (1) they might “have a personal interest in the outcome of the proceedings by virtue of the threat against his or her job security”; and (2) since they perform their duties “under constant pressures that infringe and have a chilling effect upon their decisional independence,” their bias might reasonably be questioned. He further requested that a special ALJ, with no direct interest in the outcome of the constitutional issues presented and free from even the appearance that his or her decisions are influenced by the Executive Branch or other private interests, be appointed and assigned to hear his claim.

A hearing was held in Prock's case on April 15, 2009. On May 15, 2009, the ALJ issued its order that denied Prock's motion to recuse, found his constitutional challenges to be without merit, and found that the Workers' Compensation Act was constitutional. It then found that illegal drugs, namely “cannabinoids,” were present in Prock's body at the time of his accident. The ALJ noted that, pursuant to Arkansas Code Annotated § 11–9–102(4)(B)(iv)( b ), the presence of these drugs created a rebuttable presumption that Prock's accident was substantially occasioned by the use of those drugs. Accordingly, the ALJ observed, the burden shifted to Prock to prove by a preponderance of the evidence that illegal drugs did not substantially occasion his accident or injury, in order to be entitled to compensation benefits.

The ALJ then concluded that, “[o]n the basis of the record as a whole,” Prock had met his burden of proving by a preponderance of the evidence that his accidental work incident was not substantially occasioned by the use of drugs. The ALJ delineated the testimony and concluded as follows:

Considering that none of the witnesses observed the claimant using marijuana or otherwise under the influence of marijuana at any time on the day of the explosion, and that the claimant credibly denied having used marijuana on the day of the incident, I am persuaded that any assertion or finding that the claimant's accidental injury was the result of any “impairment” on the part of the claimant would be based on speculation and conjecture, which can never supply the place of proof.

In other words, the preponderance of the credible evidence demonstrates that the claimant's injury was the result of the claimant's attempt to accomplish his assigned job task in a quick and convenient manner and not the result of “impaired judgment,” caused by the use of marijuana. Accordingly, I find that the claimant has rebutted the presumption that his injury was substantially occasioned by the use of illegal drugs. As a result, I find that the claimant suffered compensable injuries, in the form of severe burns to his body (legs, hands, face and arms) when the barrel he was attempting to cut the lid from with a cutting torch exploded, while working for the respondent-employer on November 1, 2007.

Accordingly, the ALJ found that Prock was entitled to benefits.

Bull Shoals Landing and its carrier, AIG Claim Services, Inc., filed a notice of appeal from the ALJ's opinion, appealing the decision to the full Commission, and the Commission issued its opinion, with a vote of 2–1 on October 14, 2009. In its opinion, the Commission found that, based on its de novo review of the record, Prock had failed to rebut the statutory presumption that his injuries were substantially occasioned by the use of illegal drugs, and it reversed the decision of the ALJ. The Commission opined that the question for it was “whether the claimant's denial of having used marijuana on that date of the accident is sufficient to constitute a preponderance of the credible evidence and rebut the presumption that the accident was substantially occasioned by the use of marijuana.” It then concluded that Prock's testimony was “not sufficient enough to rebut the statutory presumption,” as his testimony was “filled with inconsistencies and unexplained evidence” that clearly indicated that he failed to rebut the presumption.

Specifically, the Commission cited to and placed “greater weight” on the testimony of Prock's supervisor, Steve Eastwold. It further found that Prock's claim that he had quit smoking marijuana due to another job offer was completely unsupported by the evidence, which served as further “evidence of the claimant not being a credible witness.” And finally, the Commission pointed out, the evidence demonstrated that Prock had been directed to use an air chisel to open barrels, but he denied this, in addition to the fact that the barrels had warning labels to not use a torch ⁸ to open them and that Prock failed to open the cap on the top of the barrel.

Here, the Commission rejected outright Prock's credibility and found as follows:

[W]hen we consider all of the evidence in the record, we do not find the claimant to be a credible witness. The claimant lied about being shown how to use the air chisel. He lied about where he was when Mr. Eastwold told him what to do with the barrels. The claimant's lack of personal safety is evident by his failure to even read the warning labels. Finally, we give no credit to his testimony he quit smoking pot as his reasoning for quitting smoking pot two weeks prior cannot be verified in any way, shape or form. We are not persuaded by claimant's testimony that he always used a torch to remove...