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 29, 1997. With regard to the issues at the CCH, she (the hearing officer) determined that the appellant (carrier) is not relieved of liability due to the respondent’s (claimant) intoxication and that the “claimant had disability, commencing ___________, and continuing.” The carrier appealed, sought a reversal of the decision and argued the hearing officer misapplied the burden of proof in deciding the case. The claimant responded and sought an affirmance of the decision. We reversed and remanded the case to the hearing officer since the audiocassette tape recordings of the May 29, 1997, CCH were inaudible and because there was a question as to whether the hearing officer applied the correct legal standard to an intoxication case. Texas Workers’ Compensation Commission Appeal No. 981322, decided July 20, 1998.
A CCH on remand was held on November 23, 1998. With regard to the issues at the CCH, she (hearing officer) determined that the carrier is not relieved of liability due to the claimant’s intoxication and that the “claimant had disability, commencing ___________, and continuing.” The carrier files a request for appeal from the decision on remand, seeks a reversal of the intoxication determination and argues that the hearing officer misapplies the burden of proof in the case. In a timely supplemental request for appeal, it appeals the disability determination and agues that the hearing officer erred in finding disability from the date of the claimant’s injury to the date of the CCH on remand. The claimant responds and seeks an affirmance of the decision.
DECISION
We reverse and render a decision that the hearing officer incorrectly applied the proper legal standard, resulting in an invalid decision.
According to the decision on remand, “[t]he parties agreed that rather than retry the [CCH], [the hearing officer] would read [her] notes taken during the previous proceedings into the record.” The parties essentially agreed that the witnesses testified consistent with the hearing officer’s recitation.
On ___________, the claimant working for (employer) at its customer’s hotel. He testified at the CCH that at 2:00 p.m. that day he sustained a compensable injury while lifting a box. He denied ingesting cocaine or marijuana, or drinking alcohol prior to the alleged injury. In a notarized affidavit, Mr. R, the claimant’s supervisor at the hotel, swore that ordinarily the claimant was talkative and that he was talkative on ___________. Mr. R wrote in his affidavit that he detected alcohol on the claimant’s breath after the alleged injury. Mr. R also wrote that after the alleged injury he thought the claimant was intoxicated, that he transported the claimant to the (clinic), and that a doctor and nurse at the clinic remarked they detected the smell of alcohol on the claimant’s breath. Mr. R testified at the CCH prior to remand and the hearing officer summarizes his testimony in her decision on remand as follows:
[Mr. R] testified the Claimant arrived at work in his usual state, voluble and talkative and apparently performed his work in his usual manner. The witness did not note any smell of alcohol, slurred speech, or physical behaviors that indicated intoxication. The Claimant admitted that he might, on other occasions, have tried to ascertain the weight of a box before lifting it, but he did not do so on ___________, and dropping the heavy box was the result.
On ___________, Dr. N, a doctor at the clinic, noted lumbar pain and excused the claimant from work until October 23, 1997. On November 3, 1997, Dr. S, his treating doctor, stated that an x-ray showed lumbosacral disc interspace narrowing and instructed him not to work. An ___________, 8:00 p.m. toxicology report revealed that the claimant’s urine contained 588 nanograms per milliliter (ng/ml) of cocaine, 31 ng/ml of the marijuana metabolite trahydrocannabinol (THC) and 251 nanograms per decaliter (ng/dl) of ethanol.[1] On April 9, 1998, Dr. K, the carrier’s peer review doctor, wrote that “[c]ocaine intoxication was present in [the claimant] at the time of his workplace accident on ___________ from state-of-the-art chemical fingerprint testing. . . .” He stated that the claimant was intoxicated “based upon the cocaine intoxication present at the high level of 588 ng/ml of urine.” According to Dr. K, “[o]ther substances, marijuana and ethanol were also present and likely contributed to the overall state of intoxication, but are not necessarily being relied upon for intoxication to be present, nor did their presence increase the detected level of cocaine or contribute to cocaine being detected.”
The carrier argues that it met its burden of proof to rebut the presumption of sobriety when it presented evidence of intoxication, that the burden of proof shifted to the claimant to show he was not intoxicated and that the claimant failed to meet his burden of proof. At the CCH, the claimant offered no explanation for the presence of cocaine metabolites in his urine on ___________, but offered an explanation for the presence of THC metabolites and ethanol. He said he was exposed to second-hand marijuana smoke and drank alcohol after his alleged injury. In the “Statement of the Evidence” portion of the original decision, the hearing officer stated:
I do not believe him [the claimant], but I do not believe that the Carrier met its burden to show the Claimant was intoxicated from cocaine at the time of the injury.
In the decision remanding the case, we wrote: “We agree that the hearing officer either does not understand the burden of proof in an intoxication case or chooses not to apply the proper burden of proof.” Id. Unfortunately, the hearing officer makes no further effort to properly deal with the burden of proof and repeats the above-referenced statement in the decision on remand. She finds in the decision on remand:
FINDINGS OF FACT
2.Prior to reporting to work for the Employer, the Claimant consumed or otherwise ingested controlled substances, cocaine and marijuana.
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7.Other than the manner in which he lifted and dropped the box, no evidence was offered which showed or otherwise established that the Claimant’s behavior was affected by his prior ingestion of cocaine or marijuana; the Claimant’s supervisor testified that the Claimant’s behavior prior to lifting the box was the same on __________, as it was at any other time that he worked for the Employer.
8.After he was injured, the Claimant consumed alcoholic beverages, but he had not consumed any alcoholic beverages before he was injured.
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). In determining whether an employee has met his burden to prove he was not in a state of intoxication, the term “intoxication,” in pertinent part, means “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). There is no dispute that cocaine is a controlled substance analogue.
We discussed the criteria for shifting the burden of proof from the carrier to the employee in several cases:
In Texas Workers’ Compensation Commission Appeal No. 94673, decided July 12, 1994, the employee tested positive for cocaine at a level of 7240 ng/ml and the hearing officer determined that the burden of proving the lack of intoxication did not shift to the employee because the carrier did not present expert medical evidence to interpret the drug screen test. We held that a carrier need not present expert medical evidence for the burden of proof to shift to the employee, reversed the hearing officer’s decision and remanded the case for him to consider the evidence in light of our holding and determine whether the burden of proof shifted to the employee. We wrote that the carrier’s “burden is to present evidence, sufficient to raise a fact issue, in order to shift the burden of proof to the claimant, and that this panel has not held that such evidence must be expert in nature.” Id.
In Texas Workers’ Compensation Commission Appeal No. 961817, decided October 28, 1996, the employee’s urinalysis drug screen result was positive for cocaine metabolites; the hearing officer determined that the test result shifted the burden of proof to the employee; and we affirmed his decision. We wrote that “the urinalysis test results in this case constituted sufficient evidence to shift the burden of proof to the claimant to establish that he was not intoxicated at the time of his injury.” Id.
In Texas Workers’ Compensation Commission Appeal No. 980637, decided May 14, 1998, the hearing officer determined that the burden of proof did not shift to the employee when he tested positive for cocaine at level of 1363 ng/ml. We reversed and remanded the case to the hearing officer because he erred in not shifting the burden of proof to the employee to prove he was not intoxicated.
In Texas Workers’ Compensation Commission Appeal No. 981389, decided July 30, 1998, the employee’s drug screen test result showed THC at a level of 41 ng/ml of urine and indicated it was “positive” for THC. Despite two expert witnesses who testified that a THC test result of 41 ng/ml was not indicative of intoxication because it was below a toxicologically-accepted cutoff level of 50 ng/ml, the hearing officer determined that the burden of proof shifted to the employee and we held “the positive urine drug screen test was sufficient evidence to place the burden on claimant to prove that he was not intoxicated.” Id.
The hearing officer fails in her decision on remand to state whether or not the burden of proof shifted to the claimant on the issue of intoxication. Instead of making that determination, she appears to place the burden of proof on the carrier to prove the claimant was intoxicated. This is not an appropriate legal standard. To properly decide a case where the defense is intoxication, the hearing officer must first make a determination as to whether there was sufficient evidence to shift the burden of proof (as there was here), and, if so, determine whether he then met the burden of proving he was not intoxicated. The carrier does not have the burden of proof on intoxication. It has the burden of producing sufficient evidence to shift the burden of proof.
By failing to determine the threshold issue of whether or not the burden shifted, the hearing officer has denied the parties a proper application of the law to the facts. Because of this, we cannot affirm the hearing officer’s decision. To render a decision against the claimant would only shift the denial of a meaningful review in this case from the carrier to the claimant and force us to make numerous fact findings without even being able to review the testimony in the case due to the manner in which the record was reconstructed. We, therefore, have no choice but to render a decision that the correct legal standard was not applied and a valid decision has not been made in this case. See generally Texas Workers’ Compensation Commission Appeal No. 93296, decided May 28, 1993.
To preclude any confusion about the proper legal standard, we will briefly outline that standard. An employee may meet his burden of proof to show he was not intoxicated at the time of his alleged injury with witness’ statements that he had the normal use of his physical and mental faculties vis a vis a non-intoxicated person. Texas Workers’ Compensation Commission Appeal No. 951856, decided December 21, 1995. 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.
The Appeals Panel may not remand a case to the hearing officer more than once. Section 410.203(c). Therefore, we lack authority to remand the case to the hearing officer. However, we cannot affirm a decision where it is clear that the proper burden of proof was not applied. Because of an erroneous application of the burden of proof in an intoxication case, the decision in the case under review cannot be affirmed. Appeal No. 93296, supra. For the foregoing reasons, the decision of the hearing officer is reversed and a new decision is rendered that the hearing officer did not correctly follow or apply our established precedent, as outlined in our decision remanding the case. Appeal No. 981322, supra. The Texas Workers’ Compensation Commission (Commission) may appropriately undertake to obtain a valid adjudication of the issue of whether the carrier is relieved of liability due to the claimant’s failure to meet his burden of proof to show he was not intoxicated at the time of his ___________, alleged injury.
Christopher L. Rhodes – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Gary L. Kilgore – Appeals Judge
- The claimant’s urinalysis results were incorrectly described in our decision remanding the case. Appeal No. 981322, supra. The decision herein correctly describes those results. ↑