This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). This case is back before us after our remand in Texas Workers’ Compensation Commission Appeal No. 982201, decided October 19, 1998. We remanded the case for the hearing officer to make additional findings to clarify whether he was finding the respondent (claimant herein) was not intoxicated or whether he was finding that the appellant (carrier herein) had failed to present sufficient evidence to shift the burden on the issue of intoxication. We also indicated that since we were remanding the case we would leave it up to the hearing officer to correct a typographical error in his decision concerning the issue of disability that both parties had pointed out during the original appeal. The hearing officer determined that no additional evidence was required and closed the record on remand on December 2, 1998, and issued a new decision on December 9, 1998. In his decision on remand the hearing officer determined that the claimant at the time of his injury was not intoxicated.[1] The carrier appeals arguing that the carrier produced sufficient evidence to shift the burden of proof onto the claimant on the issue of intoxication and that the claimant failed to prove that he was not intoxicated at the time of the injury. The carrier also argues that the hearing officer’s disability finding was incorrect. The claimant responds that the hearing officer’s decision was sufficiently supported by the evidence and should be affirmed.
DECISION
Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.
The claimant testified that on ___________, he injured his lower back when lifting a compressor at work. The claimant underwent a drug screen on ___________, that was positive for morphine and indicated a level of 1,128 ng/ml of morphine. Dr. S, Ph.D., a toxicologist, testified that this level of morphine could produce intoxication. Dr. C, D.C., stated in a letter dated August 7, 1998, as follows:
I am currently treating [the claimant] for injuries he received as the result of an on the job accident which occurred on ___________. It has recently been brought to my attention that [the claimant] tested positive for trace amounts of morphine in his system after mandatory drug screening following his injury. Thirty-seven hours prior to his on the job injury, [the claimant] took a prescription in the form of 10 mg. Flexeril (previously prescribed by his doctor for knee pain). Results of the drug screen revealed positive for 1128 ng/mg of morphine. This is an extremely small amount of morphine and would not be an amount as to cause “intoxication” in a grown adult. Pain medications such as Flexeril contain morphine derivatives which when introduced into the body become incorporated into various cells and typically produce positive drug screen results for several weeks and/or months following initial ingestion of the drug.
The hearing officer’s Findings of Fact and Conclusions of Law include the following:
FINDINGS OF FACT
7.A drug test showing morphine, without evidence of an amount showing the amount causes intoxication, in and of itself does not show that the Claimant was intoxicated on ___________.
8.The Carrier did not meet its burden and prove that on ___________, the Claimant did not have control of his normal use of mental or physical faculties.
9. The Carrier did not meet its burden and prove that on ___________, the Claimant was intoxicated when he sustained his injury.
10.As a result of the ___________, injury, the Claimant was unable to obtain and retain employment with wages equivalent to his pre-injury wages from June 12, 1998, to the date of this hearing.
CONCLUSIONS OF LAW
3.The claimed injury did not occur while the Claimant was in a state of intoxication.
4.The Claimant had disability resulting from June 12, 1998, to the date of this hearing.
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 morphine is a controlled substance.
The problem with the hearing officer’s decision on remand is that he once again is less than clear as to what his analysis is and whether he properly placed the burden of proof. In particular in Findings of Fact Nos. 8 and 9. He appears to be placing the burden of proof on the carrier to show intoxication. While there is evidence from the claimant that he had the normal use of his mental and physical faculties at the time of injury, if the burden of proof shifted to the claimant, it would be his burden, and not the carrier’s, to establish normal use. We must disregard the hearing officer’s Finding of Fact No. 8. In light of Finding of Fact No. 7, we interpret hearing officer’s Finding of Fact No. 9 to mean that the hearing officer failed to find that the carrier failed to meet its produced sufficient evidence of intoxication to overcome the presumption of sobriety and shift the burden of proof on intoxication to the claimant.
The carrier argues that the hearing officer erred in not finding the evidence it presented to shift the burden of proof. It is apparent from the hearing officer’s Finding of Fact No. 7that he gave very little or no weight to the drug screen or to the testimony of Dr. S.
Section 410.165(a) provides that 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. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
Applying this standard, we cannot say the hearing officer erred in finding that the burden of proof on intoxication did not shift to the claimant. It would have been better had the hearing officer clearly applied the proper legal standard which we set out in Appeal No. 982201, supra. We have stated many times, citing Daylin, Inc. v. Juarez, 766 S.W.2d 347, 352 (Tex. App.-El Paso 1989, writ denied) that the decision of the hearing officer may be affirmed on any legal theory supported by the evidence. While in Texas Workers’ Compensation Commission Appeal No. 982899, decided January 28, 1999, we rendered a decision that the hearing officer did not reach a valid decision when she failed on remand to properly apply the standard of proof, we find that in the present case the hearing officer’s Finding of Fact No. 7 on remand lays the basis for us to determine that the hearing officer here determined that the evidence was insufficient to shift the burden of proof on intoxication. Finding sufficient evidence to support that finding in the letter of Dr. C, from which the hearing officer could have concluded that the drug screen was inaccurate, we are able to affirm the decision of the hearing officer in the present case in regard to the issue of intoxication.
We are less troubled by the carrier’s challenge of the hearing officer’s finding in regard to disability. The carrier argues that the hearing officer could not have found disability through the decision on remand because he only heard evidence concerning disability through the initial contested case hearing (CCH). We agree with carrier’s analysis, but we do not believe that the hearing officer made a finding on disability after the date of the initial hearing. We note that there was no hearing on remand and therefore the only “hearing” to which the hearing officer could have been referring in Finding of Fact No. 10 was the initial hearing prior to remand. We would note that the hearing officer’s failure to find disability after that date is not an indication that the claimant did not continue to have disability, but merely a reflection of the fact that the issue of disability after the date of the original CCH was not litigated on remand.
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCURRING OPINION:
I would affirm the order, and make our own fact findings, as I believe the law allows after remand, that claimant was not intoxicated. We need not prop up findings that are substantially similar to that previously reversed. I believe, and find, that claimant met his burden to prove sobriety.
Susan M. Kelley – Appeals Judge
DISSENTING OPINION:
I dissent. The hearing officer’s key findings of fact are no different than those initially made and about which the case was remanded. In addition, the hearing officer made no additional findings of fact that could address the concern expressed in Texas Workers’ Compensation Commission Appeal No. 982201, decided October 19, 1998, i.e., whether the drug found in claimant was prescribed or not. With no finding of fact that the drug found was prescribed, I would reverse because the hearing officer has shown no basis for saying the burden of proof was on carrier to show that claimant did not have the normal use of his mental or physical faculties.
Joe Sebesta – Appeals Judge
- In our initial decision in Appeal No. 982201, supra, we affirmed the hearing officer’s finding of injury, so it was not in issue on remand. ↑