LITTLE ROCK —Two workers who tested positive for marijuana after being injured in an explosion when they tried to open a 55-gallon drum with a blow torch should receive workers’ compensation, the state Supreme Court heard Thursday.
Attorney Rick Spencer of Mountain Home asked the high court to reverse a state Court of Appeals decision that denied the benefits to Matthew Edmisten and Greg Prock, who were severely burned in a November 2007 accident at Bull shoals Landing on Bull Shoals Lake in North Arkansas.
The high court did not immediately rule in the case.
The men, who had been ordered by their supervisor to open the drugs and had used the blow torch on several others successfully, suffered burns over half their bodies.
Spencer said there was no evidence that the accident occurred because of the marijuana use and there was no witness testimony suggesting the two were intoxicated because of marijuana on the day of the accident. He also argued a section of the state state Workers’ Compensation is flawed because the three-member panel are appointed, which causes partisanship.
The commissioners are appointed by the governor. One must be an attorney and he or she serves as chairman and is considered independent. One of the commissioners must represent labor and the other business.
An administrative law judge awarded Prock benefits, but that decision was overturned by the Workers Compensation Commission. Another administrative law judge denied Edmisten’s claim for benefits.
Spencer said the commission discounted the law judge’s determination of the reliability of the witnesses testimony, as well as that of both Edmisten and Prock.
"The credibility of the witnesses, the demeanor of the witnesses, how they come across, whether they are sincere or insincere .. that is so important," he said.
Jarrod Parrish, attorney for Bull Shoals Landing, told the commission that the actions by the two men led to the accident.
"I think it’s clear these gentlemen were not in the right state of mind," he said, adding they were "tearing into a barrel with an acetylene torch and no safety equipment on, they don’t read the label, they don’t open the barrel. I think it borders on reckless behavior."
Parrish told the justices that testimony during a hearing before an administrative law judge had indicated the two men had been told to consider using an air-powered chisel to pry open the barrels. He later admitted there was no policy and neither had been ordered to use the chisel.
Justice Paul Danielson and Chief Justice Jim Hannah both asked Parrish for any evidence suggesting the previous marijuana use by the men directly caused the accident.
"We’re talking about whether or not the accident was caused by the use of the drugs," Hannah said. "You still explained the causal connection … they had done 15 or 20 barrels before the same way. How can you make a leap saying the marijuana use caused him to take that torch to this particular barrel?"
Parrish said the two could have removed a plug on the lid of the barrel to determine whether it contained gasoline, and that there were indications that the gasoline could be heard sloshing around in the metal barrel before the men used the blow torch.
"They were opening a barrel that contained gasoline without checking the barrel," Parrish said.
"But their employer told them to do that," Danielson said, noting the men were under orders to open the barrels and never told not to use the blow torches.
Parrish said blood tests indicated the two men had used marijuana and state workers’ compensation law requires the employee to prove their drug use didn’t cause the accident.
"In the abstract, if you looked at their behavior you could say, yes, it could be due to someone being not intelligent or not having common sense, but within the context of evaluating whether they have rebutted a presumption their activities (were not caused) by the drugs within their system … we have the presumption in our favor," he said. "They have the burden to rebut that presumption."
The high court did not give any indication when it would rule in the case.