This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 22, 2001. The hearing officer resolved the disputed issues by concluding that the appellant (claimant) sustained a lumbar sprain injury in the course and scope of his employment; however, because the claimed injury occurred while the claimant was in a state of intoxication, the respondent (carrier) is relieved of liability for compensation. The claimant appeals, arguing that the intoxication determination made by the hearing officer is against the great weight and preponderance of the evidence. The carrier replies, urging affirmance.
DECISION
Affirmed.
The claimant testified that he mainly worked as a welder for employer, but that on ___________, he was instructed to screw metal sheets on a roof and that when he lifted a box of screws weighing approximately 60 pounds he felt a pop in his back. The hearing officer did not err in determining that the claimant’s work-related injury was not compensable because the claimant was intoxicated (as defined by Section 401.013 of the 1989 Act) due to his use of statutorily controlled substances, thereby relieving the carrier of liability for paying compensation under Section 406.032(1)(A). Documentary evidence in the record support the hearing officer’s findings and conclusions on this issue. Based upon the drug test results and the toxicology report, the hearing officer properly shifted the burden of proof to the claimant to show that he had normal use of his mental and physical faculties at the time of his injury. The claimant testified that he used cocaine three days prior to his injury to try and reduce the level of alcohol in his bloodstream. He further testified that at the time of his accident he had full use of his physical and mental faculties. Despite this testimony, the hearing officer specifically found that the claimant did not have the normal use of his mental or physical faculties at the time of his accident due to the voluntary introduction into the body of a controlled substance.
Pursuant to Section 410.165(a) of the 1989 Act, the hearing officer is the sole judge of the weight and credibility of the evidence. The hearing officer resolves the conflicts and inconsistencies in the evidence and determines what facts have been established from the conflicting evidence. Garza v. Commercial Ins. Co., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ); St. Paul Fire & Marine Ins. Co v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). We will not disturb the contested findings of a hearing officer unless they 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); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Applying this standard, we cannot say that the hearing officer erred in finding that the claimant did not meet his burden of proving he had the normal use of his mental or physical faculties at the time of his injury. In that we are affirming the hearing officer’s decision that the claimant was not intoxicated, we also affirm the determinations regarding compensability and disability.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is GREAT AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is
C T CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Gary L. Kilgore – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Thomas A. Knapp – Appeals Judge