This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 17, 1995, in ________, Texas, with _______ presiding as hearing officer. He determined that the appellant (claimant) was intoxicated at the time of his injury on ________, thus relieving the respondent (carrier) of liability for compensation. The claimant appeals urging error in the hearing officer’s denial of a continuance or, alternatively, that evidence be disallowed, as a result of the nonappearance of two subpoenaed witnesses. The claimant also urges that the decision was against the great weight of the scientific evidence and that the hearing officer erred in not admitting a question and answer from a doctor witness proffered by the claimant. The carrier responds that the hearing officer correctly ruled in denying the continuance and in allowing the evidence from the two witness. The carrier also urges that the evidence is sufficient to support the decision and that the evidence of the doctor witness was properly excluded.
DECISION
We reverse and remand.
The claimant, who had worked for the employer for only some three hours, seriously cut his index finger on metal shavings he was cleaning up at work on ________. He was taken to a doctor for treatment and shortly thereafter a urine specimen was taken to test for drugs. A screening test, listing Dr. M (Dr. M) as the physician, showed “THC (Marijuana)-Positive” and contains the number “________” apparently to identify the particular sample. A laboratory report admitted into evidence from SmithKline Beecham Clinical Laboratories showing a slightly different (and unexplained) identifier number of “_______” reported “confirmation by GC/MS” and “positive 540 NG/ML.” The carrier also introduced two statements from Dr. R (Dr. R) wherein he opines that based upon the reports of marijuana metabolite from the specimen collected on ________, the claimant, at the time of injury, was intoxicated by marijuana and that he was significantly impaired.
The carrier also called the claimant during the hearing and when asked about marijuana use and when he last used marijuana before the injury, the claimant asserted the “Fifth Amendment.” The claimant also testified that no one told him not to use his hands in getting metal shavings or otherwise gave him instructions on performing his job. The carrier introduced a statement from a machinist in the shop where the claimant was working who stated that he told the claimant not to use his hands in cleaning up the shavings, that he gave the claimant a scoop to rake the shavings, and later brought the claimant a hook and showed him how to use it in cleaning up the shavings. The claimant also introduced two treatises on the use of urine samples in showing drug intoxication which generally indicate that urine levels (as opposed to blood levels) of drugs do not prove impairment. We note that the hearing officer erroneously indicates in his discussion of the evidence that there was medical evidence of THC at a significant level in the claimant’s blood. We find no evidence of any blood sample having been taken or analyzed which would go directly to impairment. See Texas Workers’ Compensation Commission Appeal No. 91107, decided January 21, 1992.
We address first the issue of the hearing officer’s refusal to admit the single question and answer of the doctor proffered by the claimant. It was offered as a deposition, and when it became apparent that the proper procedures, Tex. W.C. Comm’n 28 TEX. ADMIN. CODE § 142.13(e) (Rule 142.13(e)) regarding notice to the opposing side had not been complied with, the attempt was made to offer it as other documentary evidence. We cannot, under the circumstances, hold that the hearing officer committed error. And, in any event, we do not find any prejudice. The doctor’s answer was largely cumulative of the treatises offered and accepted regarding whether the marijuana metabolite in urine proves impairment. The doctor’s answer of “no” opined that the presence of marijuana in one’s urine, in itself, would not prove current intoxication. That was not the issue at that point; rather, the issue was whether such is enough to switch the burden to the claimant to prove non-intoxication. In order to obtain a reversal for the exclusion of evidence, claimant must demonstrate that the evidence was actually erroneously excluded and that “the error was reasonably calculated to cause and probably did cause rendition of an improper judgment.” Hernandez v. Hernandez, 611 S.W.2d 732, 737 (Tex. Civ. App.-San Antonio 1981, no writ). It has also been held that reversible error is not ordinarily shown in connection with rulings on questions of evidence unless the whole case turns on the particular evidence admitted or excluded. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. Civ. App.-San Antonio 1983, writ ref’d n.r.e.). Here, any error in the exclusion does not rise to the level of reversible error.
At the start of the hearing, a preliminary matter was brought up by the claimant. He sought a continuance, or in the alternative, to have documentary evidence from two witnesses excluded for failure to comply with duly issued subpoenas. The claimant urged that the subpoenas be “honored.” The file contains a letter from the claimant’s counsel dated September 11, 1995, requesting subpoenas be issued for Dr. M and Dr. R. There is also a letter dated September 11, 1995, from claimant’s counsel which refers to the hearing officer’s request that counsel explain why the testimony sought could not be adequately obtained by deposition or written affidavit. Counsel addressed these matters urging the need for cross-examination under the circumstances and the need “to test the appropriateness of the scientific basis of the testimony previously proffered.” The carrier opposed the issuance of subpoenas in a letter dated September 12, 1995. Nonetheless, the hearing officer issued subpoenas to the two witnesses, and in a letter dated September 19, 1995, stated that the CCH had been rescheduled for ________, because the witnesses could not be served by the time of the originally scheduled CCH. He later reissued subpoenas for the ___________, CCH and in evidence are properly signed returns and acceptances of the subpoenas by Dr. M and Dr. R. The record is otherwise silent as to why the witnesses were not present and it does not appear in the record that any further inquiry was made.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.1 (Rule 142.1) provides that § 14(n) of the Administrative Procedure and Texas Register Act (TEX. REV. CIV. STAT. ANN., art. 6252-13a (effective September 1, 1993, codified as the Administrative Procedure Act. (APA), TEX. GOV’T CODE ANN. § 2001 (Vernon 1994)), relating to the enforcement of subpoenas applies to benefit CCHs. And, Rule 142.2 authorizes a hearing officer to issue subpoenas. Rule 142.12 provides that a subpoena may be issued at the request of a party, if the hearing officer determines the party has a good cause, and sets out the procedure for requesting a subpoena. In subsection (g) of Rule 142.12, it is provided that a failure to comply with a subpoena “(1) may be enforced in the manner provided by Texas Civil Statutes, Article [6]252-13a, §14(n), and (2) is a Class A administrative violation, with a penalty not to exceed $10,000.” Article 6252-13a, §14(n) generally provides for instituting court proceedings, by either the agency issuing the subpoena or the requesting party, to obtain compliance.
Clearly, we believe, a subpoena should be not be issued lightly and should be limited to situations where other methods such as sworn statements, written depositions, affidavits etc. cannot be reasonably used to obtain the needed information. In this regard, the 1989 Act and implementing rules state that conformity to legal rules of evidence is not necessary (Section 410.165(a)) and provide for the presentation of evidence by affidavit and the use of summary procedures to expedite the proceedings (Section 410.163), authorize acceptance of signed, written statements and direct that all written reports signed by a health care provider be accepted. Chapter 142 of the rules further elaborates on the evidence that can be brought before a CCH. And, during the discovery phase of a case, Rule 142.13(a)(3) provides, regarding witness depositions of a health care provider, that they may be deposed only on written questions. There is no prohibition against subpoenaing such witness to testify at a CCH where there is good cause shown.
Although, as we have pointed out, a subpoena should be resorted to only where other methods of obtaining necessary evidence prove to be clearly inadequate or unsatisfactory, in the case before us we are dealing with a situation where procedures were followed and subpoenas were duly issued and returned. Under the circumstances, we find that the denial of the continuance was an abuse of discretion. Nothing in the record indicates that any attempt was made or opportunity was given to effect compliance with a subpoenas duly issued by the Commission (through the authority of the hearing officer) or that the subpoenas were withdrawn or otherwise reconsidered by the hearing officer. Therefore, we are constrained to reverse the decision and remand the case for further consideration and development of appropriate evidence. It may be appropriate to explore what evidence is necessary and if another method for obtaining the information is feasible such as depositions or telephone conference calls or other methods short of seeking court enforcement. However, if the testimony of Dr. M and Dr. R is ultimately deemed necessary, then the procedures for compelling compliance should be considered. Duly issued subpoenas of the Commission, provided for in the law, should not be relegated to something that can be ignored. See generally Texas Workers’ Compensation Commission Appeal No. 94143, decided March 21, 1994.
Since we remand on the continuance issue involving the failure to appear by Dr. M and Dr. R, we do not reach the issue that the decision of the hearing officer was against the great weight of the scientific evidence. However, our previous decisions have upheld the point that the presence of the THC metabolite in a urine sample can be sufficient to cause a claimant to have to prove his sobriety or non-intoxication. See Texas Workers’ Compensation Commission Appeal No. 92224, decided July 16, 1992; Texas Workers’ Compensation Commission Appeal No. 931091, decided January 6, 1994; Texas Workers’ Compensation Commission Appeal No. 92424, decided October 1, 1992. Once the burden is shifted, affirmative sobriety or non-intoxication must be proven.
For the forgoing reasons, the decision is reversed and the case remanded for abuse of discretion in the denial of the continuance under the circumstances present. Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Alan C. Ernst
Appeals Judge