Jack Nelson Jones Professional Association

January 27 - February 2, 2020

Jason Papageorge v. Tyson Shared Services, Inc., and Tynet Corporation 2019 Ark. App. 603 (Dec. 11, 2019)


This case came on appeal from a decision by the Workers’ Compensation Commission (Commission) denying Jason Papageorge‘s (JP) claim that he sustained compensable neck and spinal-cord injuries while working for Tyson Shared Services, Inc. (Tyson). JP was a salesman for Tyson, and his claim arose out of a one-car automobile accident that occurred while he was driving from his house to the Northwest Arkansas Regional Airport (NARA) in anticipation of traveling to meet with an out-of-state customer. The claim, originally accepted by Tyson as compensable, was subsequently controverted after Tyson learned that JP’s blood had tested positive for alcohol at Springfield Mercy Hospital (SMH) on the morning of the accident. 


Tyson relied on the statutory presumption that the accident was substantially occasioned by the use of alcohol. After a hearing, the administrative law judge (ALJ) denied compensability of JP’s claim. The ALJ found that the presence of alcohol created a rebuttable presumption that the accident was substantially occasioned by alcohol, and that JP was not entitled to compensation because he failed to prove by a preponderance of the evidence that alcohol did not substantially occasion the accident. The Commission affirmed and adopted the ALJ’s findings. JP appealed arguing he plainly and clearly rebutted the presumption. 


The statutory presumption at issue provides that “compensable injury” does not include injury where the accident was substantially occasioned by the use of alcohol (or other substances not at issue here). The presence of alcohol creates a rebuttable presumption that the injury or accident was substantially occasioned by the use of alcohol, and every employee is deemed to have impliedly consented to reasonable and responsible testing by properly trained personnel for the presence of alcohol or other prohibited substances.  An employee is ineligible for compensation unless he carries the burden of proving that the incident was not substantially occasioned by the use of alcohol. 


The Court noted that, when the Commission denied benefits, the substantial-evidence standard of proof required it to affirm if there was a substantial basis for the Commission’s decision. In its review, the Court must view the evidence in the light most favorable to the Commission’s decision and may not substitute its judgment simply because it might have reached a different result. The test is only whether reasonable minds could reach the result found by the Commission. The Court must defer to the Commission’s findings of credibility and the resolution of conflicting evidence. 


The record showed that on the night before the accident, JP and his wife had returned home to northwest Arkansas from their honeymoon in Bora Bora. Their long day of travel included consecutive flights from Bora Bora to Tahiti, Los Angeles, Dallas, and to their final destination at NWRA. They arrived at around 8 p.m. His job as a salesman involved extensive travel, and he was scheduled to leave on a business flight to Minnesota at 5 a.m. the next morning.


JP set his alarm for 3:30 a.m. but did not awake until 3:50 a.m. While driving to the airport in an attempt to catch his flight, he failed to negotiate a curve in a construction area and flipped his car two or three times. The accident occurred shortly before 4:30 a.m.  He was taken to Washington Regional Medical Center (WRMC), and then  SMH, where he underwent neck and back surgery. A blood draw taken at 9:26 a.m. at SMH detected alcohol in JP’s blood at a concentration of 110 milligrams per deciliter (.11). As a result of the accident, he suffered complete paralysis below his chest and partial paralysis in his arms and hands.


JP testified that he had consumed alcohol during periods of his travel home as well as that night after returning home. According to him, upon boarding the plane from Tahiti to Los Angeles, he drank a mimosa but did not drink for the remainder of the flight. During the flight from Los Angeles to Dallas, he ate a meal but did not consume any alcohol. While at the Dallas airport, he ate and drank a Bud Light. On the flight from Dallas to NARA, he drank two glasses of red wine.  His parents met them there and provided them sandwiches for dinner. When he and his wife arrived home, he ate his sandwich chips and drank a Bud Light. While he unpacked and was making preparations for the next morning’s early flight, he drank some more beer, maybe two or three. He drank his last Bud Light at about 10 p.m. and went to bed around 11.


JP slept through his alarm, awoke at 3:50 a.m., and left for the airport without eating breakfast. He testified that he was frantically trying to make his flight and was driving through a construction zone at sixty miles an hour when he went through a curve, jerked the steering wheel, he overcorrected and flipped his car two or three times. He said that he knew this stretch of road and should have been going 30 miles an hour, that he made a judgment error by driving too fast, but he was not impaired by alcohol. 


The first person to happen upon the accident was Chris Rayl, who testified that he saw a car upside down on its roof, with the driver suspended in the vehicle by the seat harness. Chris called 911, then conversed with the driver until emergency personnel arrived. Chris described his conversation as “really calm” and stated that JP was communicating very clearly. There was a smell of burning plastic, but Chris did not smell alcohol and did not suspect that driver was intoxicated but stated he couldn’t tell either way, and that he did not want to look at the driver because of his injuries.


A paramedic next stopped and asked JP standard assessment questions while waiting for an emergency unit to arrive. He testified that JP was fully alert and oriented and did not slur his speech. He stated that he did not detect the smell of alcohol or observe anything to suggest that alcohol was involved in the accident, but also stated that, as a paramedic he could not determine for sure whether someone is intoxicated. 


At WRMC, Corporal John Bright took JP’s statement at the request of the investigating officer. JP was lying in bed wearing a neck brace and there were IVs attached. Bright testified that JP told him he was driving too fast and lost control of the car. Bright was unaware of alcohol consumption by JP prior to the accident. Bright stated that the police report reflected that JP appeared normal and was not impaired by alcohol, but also stated that, had he known the driver had consumed several alcoholic drinks within eight hours of the accident, he would have requested the investigating officer subpoena a blood draw.


JP’s wife and family testified on his behalf and generally agreed with his account of his alcohol consumption before the accident, and all said he  did not appear intoxicated when they arrived at the airport the night before, nor did he appear impaired when they saw him at Washington Regional Medical Center the next morning. 


The medical records from WRMC did not indicate that any testing was done to determine if alcohol was present in his system, nor did they give any indication that he was suspected to be intoxicated. However, a blood draw was performed at SMH, and it indicated the presence of alcohol in JP’s blood.


Dr. Henry Simmons, a physician and toxicologist, testified as an expert witness. Dr. Simmons was asked by Tyson to review the medical records, deposition testimony, and associated documents related to the car accident in order to form an opinion about the potential factor that alcohol played in causing the accident. Dr. Simmons authored a report, which was admitted into evidence and provided in pertinent part that he concluded that JP had consumed a toxicologically significant amount of alcohol during the relevant time. Furthermore, the amount of alcohol still circulating in his blood at the time of the accident prohibited the safe operation of a motor vehicle and it contributed significantly to the cause of the accident at issue. 


(Dr. Simmons’ report contains an excellent discussion on determining alcohol concentrations in whole blood, serum, or plasma, and metabolization of alcohol by the human body, including the possible effects on the liver of being in a wreck of this sort.  Because of the space limitations of this summation, this reporter has omitted that portion of the report, but recommends anyone interested to go to the Arkansas Judiciary website and read the entire decision, including his report as well as that of the lab personnel.)


Simmons opined within a reasonable degree of medical and toxicological probability or certainty, that JP’s blood alcohol content at the time of the accident would have been more than 0.08%, and that alcohol contributed significantly to the cause of the accident at issue. He noted that alcohol concentrations above 0.08% are ordinarily associated with impairments that significantly reduce one’s ability to operate a motor vehicle safely. Examples include in part diminished attention, impaired judgment, compromised sensory function, reduced response times and some degree of sedation.  In this case, the impact of the alcohol compounded the aftereffects of 8 to 9 days of non-routine activities away from home in another time zone and aggravated the effects of receiving only 4 to 5 hours of sleep the night before.  He also testified that going into a known dangerous curve at a high speed suggested a problem with thinking and perception completely consistent with the effects of alcohol.


In his appeal, JP argued that the Commission erred in denying compensability for his workers’-compensation claim because he plainly and clearly rebutted the statutory presumption that the accident was substantially occasioned by the use of alcohol. He contended that his six witnesses rebutted the presumption that the presence of alcohol in his blood was the causation of the accident. (The Court of Appeals noted, however, that Jason did not present expert witnesses to refute Dr. Simmons’s opinions.)


JP contended that here there was no causal link between the use of alcohol and the car accident. JP argued that the accident was instead caused by his driving too fast around a dangerous curve trying to make it to the airport on time to catch a business flight.  He thus asked that the Commission’s decision denying compensability be reversed.  The Court rejected these contentions finding that the Commission’s decision displayed a substantial basis for denying compensability. It noted that a blood-alcohol test revealing even a low level of alcohol is sufficient to trigger the statutory presumption. In this case, the blood test at SMH detected an amount of alcohol in JP’s blood that Dr. Simmons conservatively estimated would have been 0.1% at the time of the accident. Thus, there was no doubt that the statutory presumption was triggered.  The Commission set forth the testimony upon which JP relied, and after considering all of that, along with the testimony of Dr. Simmons, it found that Jason failed to prove by a preponderance of the evidence that alcohol did not substantially occasion the car accident causing his injuries. This finding was supported by substantial evidence.  


 On this record, the Court held that reasonable minds could reach the Commission’s conclusion that JP failed to rebut the presumption that the accident was substantially occasioned by the use of alcohol. Therefore, the Commission’s decision denying compensability was affirmed.