This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On September 14, 1999, a contested case hearing (CCH) was held in_________, Texas, with ___________presiding as hearing officer. With regard to the issues before her, the hearing officer determined that appellant (claimant) was intoxicated, through the voluntary use of marijuana, at the time of his on-the-job injury of __________ (all dates are____) and that claimant did not have disability.
Claimant appealed, contending that there is a presumption of sobriety that a urinalysis drug screen taken three days after the injury, even if trustworthy and done closer to the time of injury, only showed the presence “of a non-intoxicating metabolite of marijuana” and not intoxication and that the hearing officer erred in making “unwarranted and unsupported” inferences. Claimant requests that we reverse the hearing officer’s decision and render a decision in his favor. Respondent (carrier) responds, urging affirmance.
DECISION
Affirmed for the reasons stated.
Claimant testified that he had been employed as a helper/iron worker for the employer and its predecessors for about five years. He stated that on __________, he was on a ladder cutting a steel beam when a movement in the beam caused him to have to jump “40 or 50 feet” to a concrete surface below. (Other estimates are that the distance was six or seven feet.) There was testimony regarding the proper way to cut the beam, whether it was being cut from above or below and whether the beam could be cut from above. It is undisputed that claimant sustained substantial injuries to his ankles and feet, particularly to the left, and had several surgeries. After the fall, claimant was taken to the hospital and three days after the injury, a urinalysis drug screen was performed which was positive for marijuana metabolite in a concentration of 162 nanograms per milliliter (ng/ml).
The drug screen is in evidence. Claimant testified that he has not actively used marijuana in several years and sought to explain the positive drug screen by saying that he rides to and from work with two coworkers who smoke marijuana going to and from work almost daily and that the morning of the injury his coworkers were smoking marijuana and that he must have inhaled some secondary smoke. Claimant denies that he was intoxicated or that his faculties were impaired at the time of the injury. The drug screen results were sent to Dr. C (Dr. C) for analysis by claimant. In a report dated August 25, 1999, Dr. C states:
The presence of tetrahydrocannabinol carboxylic acid, an inactive derivative of marijuana, in the urine three days after the accident at a concentration of 162 ng/ml provides no basis for a conclusion that the patient was impaired at the time of the accident by virtue of marijuana use. Since impairment associated with marijuana generally does not exceed four hours while the excretion of marijuana metabolites ordinarily continues for one to three weeks, it is obvious that a random urine positive for the inactive metabolite cannot constitute proof of the use of marijuana at any particular time prior to the collection of the urine specimen with a certainty which reaches reasonable medical probability.
It should also be noted that the material measured is an inactive metabolite of marijuana and its presence cannot serve as a measure of impairment since there is no quantitative relationship between the presence of tetrahydrocannabinol carboxylic acid and the presence of impairment.
Dr. C concludes that the only thing he can say within a reasonable medical probability is that “marijuana had been used sometime within the preceding one to three weeks.”
Intoxication is defined in Section 401.013(a)(2)(B) as ” not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of a controlled substance or controlled substance analogue.” Appeals Panel decisions have held that an employee is presumed sober at the time of an injury. Texas Workers’ Compensation Commission Appeal No. 94247, decided April 12, 1994. However, a carrier rebuts the presumption of sobriety if it presents “probative evidence” of intoxication. Texas Workers’ Compensation Commission Appeal No. 91018, decided September 19, 1991. Once the carrier has rebutted the presumption, the employee has the burden of proving he was not intoxicated at the time of the injury. Id. An insurance carrier is not liable for compensation if an employee’s injury occurred while he was in a state of intoxication. Section 406.032(1)(A). The crux of this case and claimant’s appeal is whether the positive urinalysis drug screen, performed three days after the injury, was sufficient probative evidence to shift the burden of proof from the carrier to the claimant to show that he was not intoxicated.
The hearing officer, in the Discussion portion of her decision, explains her rationale:
Although the Appeals Panel has held that a carrier may raise the intoxication defense, thus putting a claimant to his burden of proof, through introduction of a positive drug screen, the cases cited by Carrier in this regard reference drug testing specimens which were taken within a short time of the injury-causing event, as opposed to three days thereafter as occurred in the case at bar. However, since Claimant did not indicate that he was in any manner exposed to marijuana while he was in the hospital between the time of his injury and the time the specimen was taken for drug testing purposes, it is reasonable to infer that the drug screen would have been positive if taken on Claimant’s accident date of __________, and the Hearing Officer therefore is not of the opinion that, under the circumstances of this case, the testing delay diminished the evidentiary value of Carrier’s Exhibit No. 1, the drug screen. In short, the Hearing Officer is of the opinion that Carrier has sufficiently raised the intoxication defense to require Claimant to demonstrate that he was not intoxicated at the time of his on-the-job injury of __________.
Claimant, in his appeal, asserts the urinalysis was untimely to shift the burden, that the urinalysis only showed a “non-intoxicating metabolite of marijuana” and the Texas Supreme Court in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) stated such scientifically unreliable evidence is not to be admitted in the courts in a civil trial. Claimant further contends that the hearing officer’s inference “is unwarranted and unsupported” by any evidence and there is “absolutely no evidence that the urinalysis would have been positive on the date of injury.”
Although briefly mentioned in carrier’s closing at the CCH, but curiously absent from the hearing officer’s analysis, is a transcribed statement admitted into evidence as Carrier’s Exhibit No. 2, of JB (JB), one of claimant’s coworkers, who states that on the date of injury:
A. … . At lunch time [claimant] smoked marijuana. He and another co-worker of mine. So they were under the influence of marijuana. I’m not saying that is good or bad but what he shouldn’t of been doing what he was doing regardless.
* * * *
Q.Did you take lunch from 11:30 to 12:00? Right after that you could smell the pot?
A.I’m just saying it because I just don’t care.
Consequently, in addition to the positive drug screen there is testimony of a witness who either saw or smelled marijuana and gave uncontradicted lay testimony that claimant was “under the influence of marijuana.” The weight, if any, the hearing officer gave that statement is unclear; however, we regard it as significant in providing evidence of marijuana use (and possibly intoxication) shortly (certainly within four hours) before the accident and injury.
Carrier cites Texas Workers’ Compensation Commission Appeal No. 991181, decided July 14, 1999, for a case where the Appeals Panel affirmed a hearing officer’s decision which shifted the burden of proof based on a drug screen obtained four days after the date of injury. However, it should be noted while that case affirmed the hearing officer’s decision that the injured employee was not intoxicated, two of the Appeals Judges, in a concurring opinion, indicated they were not convinced that a drug screen test four days after the injury “provided sufficient evidence to shift the burden to claimant to prove that he was not intoxicated at the time of the accident.” In the instant case, we have a drug screen test performed three days after the accident plus a statement from a coworker of first hand knowledge of marijuana use (either by sight or smell) shortly before the accident. Although the hearing officer does not comment on that statement, we will uphold the hearing officer’s decision if it can be sustained on any reasonable basis supported by the evidence. Daylin, Inc. v. Juarez, 766 S.W.2d 347 (Tex. App.-El Paso 1989, writ denied).
The hearing officer further found that the burden of proof had shifted and claimant had not sustained his burden of proof that he was not intoxicated based on his own testimony which the hearing officer notes she was “not inclined to accep…..t face value.” The hearing officer points out that claimant’s testimony was “at odds with the professional opinion of his own expert witness [Dr. C].” On the issue of disability, since we are affirming the hearing officer’s decision that claimant was intoxicated, claimant cannot by definition in Section 401.011(16) have disability.
Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Elaine M. Chaney – Appeals Judge