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 May 18, 1998. With regard to the issues at the CCH, she (the Hearing Officer) determined that the appellant (carrier) is not relieved of liability for the respondent’s (claimant) _______, injury in the course and scope of his employment with employer, due to his alleged intoxication, and that the claimant had disability from January 29, 1998, to the date of the CCH. The carrier appeals, seeks a reversal of the decision and argues the claimant failed to meet his burden of proving he was not intoxicated at the time of the injury. The claimant does not respond.
DECISION
We reverse and render.
The parties stipulated that the claimant was injured in the course and scope of his employment on _______, when a concrete block hit him on the head (he testified he was wearing a hard hat). The claimant explained he had been taking Tylenol No. 3 or acetaminophen which was prescribed to his wife. He said he took two Tylenol No. 3 pills the night before the injury and said he did not take any the day of the injury. He denied being intoxicated or not having the normal use of his mental or physical faculties at the time of the injury.
On January 29, 1998, the employer’s project coordinator, Mr. J, detailed the events surrounding the injury, from 11:00 a.m. to 1:30 p.m. on ________, in his accident investigation report. In his February 4, 1998, follow-up report, he described the results of an investigation of the accident sight. In his sworn statement, he expressed that on the day of the injury he was with the claimant when they drove to the job site together at 6:45 a.m., when the claimant reported the injury to him at 11:45 a.m. and when the claimant drove them to the medical facility at 12:00 p.m. He swore that:
During the course of the day, _______, I, [Mr. J], do not believe that [claimant’s] state of mind and mental abilities were any different than any other day. In my opinion what happened on _______ was in no way affected by the mental abilities or judgment of [claimant].
The results of the test of a urine specimen collected from the claimant at 2:30 p.m. on the date of the injury revealed a positive result for opiate metabolites. On February 28, 1998, the carrier’s peer review doctor, Dr. A, wrote:
His urine drug test revealed a positive result for opiate metabolites, with codeine at 5000 ng/ml [nanograms per milliliter] and negative for morphine.
COMMENTS: This result is most compatible with acute use and chronic abuse of a codeine containing product (to tolerate such a high level). This is a very high level of codeine without any morphine showing up as a metabolite. It is unlikely to be due to the ingestion of poppy seeds.
CONCLUSION: In my opinion, this employee was intoxicated at the time of the injury, and the level of narcotic in his system would have impaired his judgment and his abilities.
Dr. AV testified at the CCH that a normal prescriptive dose of two Tylenol No. 3 tablets would result in a drug screen measurement of 1000 ng/ml of opiate metabolite. He said the claimant’s drug screen results indicated codeine ingestion of five times that amount and ingestion 30 minutes to three hours prior to the collection of his urine sample. He said the results were consistent with both chronic use and recent use of high doses of codeine. He opined that codeine ingestion of the amount indicated on the claimant’s drug screen test results would cause intoxication. He explained that codeine intoxication results in a person being intoxicated while not showing any outward physical signs of intoxication. Dr. AV stressed that while codeine may not affect physical faculties in a recognizable fashion, it greatly impairs mental faculties and the “thinking process.” He swore the claimant did not have the normal use of his mental or physical faculties at the time of the injury.
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. Intoxication is the state of “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, as defined by Section 481.002, Health and Safety Code.” Section 401.013(a)(2)(B). A carrier is not liable for compensation if the employee’s injury “occurred while the employee was in a state of intoxication.” Section 406.032(1)(A).
There is no dispute that codeine or acetaminophen are controlled substances and that the claimant’s drug screen test and Dr. AV’s report and testimony shifted the burden of proof to the claimant. The carrier complains on appeal that the determination that claimant met his burden of proof is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. It argues that the claimant did not meet his burden of proof to show he was not intoxicated with his testimony and Mr. J’s statement. We agree. An employee may meet his burden of proof to show he was not intoxicated with written statements that he had the normal use of his physical and mental faculties. Texas Workers’ Compensation Commission Appeal No. 951856, decided December 21, 1995. However, the determination that the claimant was not intoxicated at the time of his injury is not supported by the evidence.
An employee’s testimony regarding his lack of intoxication at the time of an injury, by itself, and not corroborated by any other witness, is insufficient to meet his burden of proof. Appeal No. 91018, supra; Texas Workers’ Compensation Commission Appeal No. 970935, decided July 7, 1997; Texas Workers’ Compensation Commission Appeal No. 971971, decided November 10, 1997. Mr. J’s statement was the only evidence other than the claimant’s testimony regarding his sobriety on the day of the injury. In determining whether an employee had the normal use of mental or physical faculties, “the evidentiary test is whether a person could or could not use his faculties in a manner that a normal, non-intoxicated person would be able to, as opposed to establishing what the specific person’s normal abilities were.” Texas Workers’ Compensation Commission Appeal No. 92591, decided December 17, 1992, citing Massie v. State, 744 S.W.2d 314 (Tex. App.-Dallas 1988, pet ref’d); see also Texas Workers’ Compensation Commission Appeal No. 91006, decided August 21, 1991, and Texas Workers’ Compensation Commission Appeal No. 971208, decided August 11, 1997. In his statement, Mr. J professed he did not believe that the claimant’s “state of mind and mental abilities were any different than any other day.” He referred only to the claimant’s mental abilities vis a vis any other day and did not provide evidence that the claimant had the normal use of his mental or physical faculties in the manner a normal, non-intoxicated person would. Therefore, Mr. J’s statement regarding the claimant’s mental abilities does not support a determination that the claimant had the normal use of mental or physical faculties and that the claimant was not intoxicated. The other portion of Mr. J’s statement, wherein he stated the injury “was in no way affected by the mental abilities or judgment” of the claimant, is not dispositive because an employee’s injury need not be caused by his intoxication to relieve the carrier of liability. Section 406.032(1)(A).
Whether an employee met his burden to show he was not intoxicated by way of ingestion of a controlled substance is a factual question for the hearing officer to consider. Appeal No. 951856, supra. The contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. Section 410.165(a). However, we will reverse the decision and order of the hearing officer when her determinations are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995.
For the reasons specified above, the determinations that the claimant had the normal use of mental or physical faculties and was not intoxicated at the time of his injury are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Therefore, we reverse the decision and order. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex. 1951). We render a new decision that the claimant was intoxicated at the time of his _______, injury and, therefore, the carrier is not liable for compensation.
On _______, the claimant was treated at the hospital by Dr. AR, who diagnosed a cervical sprain and released him to return to limited-type work. On January 29, 1998, his initial choice of treating doctor, Dr. R, diagnosed cervical strain or sprain and lumbar strain or sprain, and excused him from work. MRI tests revealed a herniated L5-S1 disc. On February 17, 1998, a referral doctor, Dr. C, agreed that the claimant had a herniated disc and could not work.
Disability means the “inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). Disability, by definition, depends upon there being a compensable injury. Texas Workers’ Compensation Commission Appeal No. 92147, decided May 29, 1992. Since the carrier is not liable for compensation, we also reverse the determination that the claimant had disability and render a new decision that he does not have disability.
Christopher L. Rhodes – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Tommy W. Lueders – Appeals Judge