This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act) (formerly V.A.C.S., Article 8308-1.01 et seq.). On April 5, 1993, a contested case hearing (CCH) was convened in (city), Texas, with (hearing officer) presiding as hearing officer. After being recessed, the hearing was reconvened on April 26, 1993, again recessed with the parties being allowed a written closing statement and the record was closed on September 28, 1993. The sole issue to be decided at the CCH was: “Was the Claimant intoxicated on (date of injury), when he sustained the injury made the basis of this claim.” The hearing officer determined that the claimant had proved by a preponderance of the evidence that he was not intoxicated on (date of injury), at the time of his injury.
Appellant, carrier herein, contends that certain of the hearing officer’s determinations are not supported by the evidence and requests that we reverse the hearing officer’s decision and render in its favor. Respondent, claimant herein, did not file a response.
DECISION
The decision of the hearing officer is affirmed.
Claimant testified he was employed by (employer), employer herein, as a “brazer” which required claimant “to climb into a skid, hook a hoist up . . . get back out of the skid and put them [coils] on the line and build them up.” It is undisputed that this job requires considerable hand-eye skills, physical deesty” was “questionable.”
(Dr. K), a medical expert in drug addiction, testified as to the effects of marijuana, the meaning of 158 ng/ml, what a nanogram is, the subjective and objective effects of tetrahydrocannabinol (THC), how THC works on the body, and the length of time THC can continue to be detected in the body. Dr. K testified that THC can stay in the body of “. . . a heavy marijuana smoker . . . for six weeks.” Dr. K also testified that THC “[i]n the chronic phase of impairment it requires finer motor testing to detect.” He further testified marijuana “. . . tends to slow reaction times . . . tends to throw off the coordination . . . concentration, ability to discriminate, complicated mental functions, perform arithmetic calculations and that sort of thing is distorted. . . .” Dr. K referred to a study involving pilots in giving examples. Dr. K testified a person that registers 158 ng/ml is “. . . very likely to be intoxicated . . . would expect to have impairment.” Dr. K testified that “half life” means the period of time that it takes half of the drug to leave the body and that the half life of marijuana is “quite long. It’s on the order of three weeks.”
Carrier relied heavily on the testimony of Dr. K and has repeatedly emphasized that Dr. K testified regarding the effect of marijuana and the effect of testing positive at 158 ng/ml, and that this expert testimony was not rebutted by any other expert witness. Claimant responds, in closing argument at the CCH, that Dr. K did not testify that the urine sample tested was that of the claimant, “. . . only that whomever had been tested would have been, in his opinion, intoxicated.” Claimant’s position is that the report showing a positive marijuana test at 158 ng/ml is not valid “because the chain of custody was not complete” and had been rebutted by a subsequent test, by the same lab, showing claimant to have tested negative for THC, eight days after the first test was allegedly administered.
The hearing officer determined, as fact, that claimant, on the date of the accident, exhibited “. . . no objective signs, noticed by co-workers or supervisory personnel, to indicate that the Claimant had lost the normal use of his mental or physical faculties . . .,” that claimant had provided a reasonable explanation concerning the cause of the accident, and that claimant had the normal use of his mental and physical faculties at the time of his injury. Carrier vehemently disputes those findings as not being supported by the evidence, quoting extensively from Dr. K’s testimony and urging that Dr. K’s “. . . expert testimony was not rebutted by any other expert witness.”
Texas Workers’ Compensation Commission Appeal No. 92424, decided October 1, 1992, a marijuana intoxication case, set out the parameters to be used in drug intoxication cases. Section 406.032 provides certain exceptions where an insurance carrier is not liable for compensation and includes when the injury “(a) occurred while the employee was in a state of intoxication.” That part of the definition of intoxication as provided in Section 401.013 (formerly Article 8308-1.03(30)) which is applicable to a controlled substance such as marijuana is “. . . the state of . . . (2) not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of: . . . (B) a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code.”
Citing a prior case, Appeal No. 92424, supra, noted that:
A claimant has the burden of proving by competent evidence that an injury occurred within the course and scope of his employment. Reed v. Aetna Casualty and Surety Co., 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref’d n.r.e.). However, even if otherwise within the scope and course of employment, if a claimant is intoxicated, the 1989 Act precludes his recovery for an injury. In this regard, a claimant need not prove he was not intoxicated as the courts will presume sobriety. Bender v. Federal Underwriters Exchange, 133 S.W.2d 214 (Tex. Civ. App.-Eastland 1939, writ dism’d judgm’t correct), March, infra. Nonetheless, when the carrier presents evidence of intoxication, raising a question of fact, the claimant then has the burden to prove that he was not intoxicated at the time of injury. March v. Victoria Lloyd Insurance Co., 773 S.W.2d 785 (Tex. Civ. App.-Fort Worth 1989, writ denied); Texas Employers’ Insurance Association v. Monroe, 216 S.W.2d 659 (Tex. Civ. App.-Galveston 1949, writ ref’d n.r.e.).
In the present case carrier presented a toxicology test of what purports to be claimant’s urine, showing it tested positive for cannabinoids with a quantitative result of 158 ng/ml and presented an expert’s opinion that the person whose urine was tested was intoxicated. As in Appeal No. 92424, we would agree that testing positive for a drug does not, in and of itself, compel a finding of intoxication at the time of the injury, see Texas Workers’ Compensation Commission Appeal No. 92173, decided June 15, 1992, and that the 1989 Act does not provide either a presumptive or conclusive level of a drug found in the blood or urine as establishing intoxication (as opposed to an alcohol concentration of 0.10 or more which is deemed to be intoxication), see Texas Workers’ Compensation Commission Appeal No. 91006, decided August 21, 1991. We hold that the test results and the opinion of carrier’s expert witness, Dr. K, shifted the burden of proof to the claimant to prove that he was not intoxicated at the time of the injury. By so holding, we do not mean to imply that a carrier must present scientific and/or expert testimony in order to raise the intoxication exception. See Appeal No. 92173, supra.
Claimant, in the present case, categorically denied using marijuana, both in his testimony at the CCH, and in a recorded statement taken by carrier’s adjustor a few days after the accident. This testimony is supported by the fact that eight days after the accident claimant submitted to another drug test, by the same laboratory that did the initial test, and the claimant tested negative. Carrier presented testimony that claimant had a questionable reputation for truthfulness but does not offer any comment on how test results could go from 158 ng/ml to negative in eight days. Dr. K testified that the half life of marijuana was quite long, on the order of three weeks. Ms. S saw claimant very shortly after the accident but did not comment on any objective signs that claimant had lost the normal use of his mental and physical faculties. Although carrier argues that the hearing officer’s finding that the claimant provided a reasonable explanation concerning the cause of the accident is against the great weight of the evidence, carrier offers only more testimony of Dr. K that a person testing 158 ng/ml would likely be intoxicated. It is undisputed that coils fell on claimant, rather than anything claimant might have done.
Carrier does not directly address claimant’s position, which is that he did not ingest marijuana, that the chain of custody of the first test was flawed, that it was not his urine that was tested in the first test and that his contention is supported by the negative second test only eight days later. Carrier was free to, and did, question the veracity and credibility of claimant’s testimony and this case does largely turn on the credibility of claimant’s testimony. The final decision regarding credibility and weight to be given to the evidence rests with the hearing officer in that Section 410.165(a) provides that the hearing officer is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. The hearing officer obviously believed claimant’s testimony that he had not ingested marijuana and that he had provided a reasonable explanation of how he was injured. As the trier of fact, the hearing officer may believe all, part, or none of the testimony of a witness (Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.)) and may believe one witness and disbelieve others. Cobb v. Dunlap, 656 S.W.2d 550 (Tex. App.-Corpus Christi 1983, writ ref’d n.r.e.). There is no reason to believe that the hearing officer disregarded the excellent testimony of Dr. K, which is not in dispute, but rather it appeared that the hearing officer had difficulty resolving how one individual could have a test result of 158 ng/ml on one day and a negative test result eight days later. Nonetheless, it is within the purview of the hearing officer to resolve conflicts in the evidence and make findings of fact. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). When presented with conflicting evidence, the trier of fact may believe one witness and disbelieve others, and may resolve inconsistencies in the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex. 1986). The hearing officer could, and apparently did, believe claimant when because the hearing officer may have drawn inferences and conclusions different than those the Appeals Panel deems most reasonable, even though the record contains evidence of or gives equal support to inconsistent references. Garza, supra. Only if the evidence supporting the hearing officer’s determination is so weak or against the great weight and preponderance of the evidence, which it is not in this case, would we be justified in reversing or setting aside the decision. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
The decision of the hearing officer is affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge