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 November 8, 2001. The hearing officer determined that the respondent (claimant) sustained a compensable injury on ___________; that the claimant had disability from ___________ through September 4, 2001; and that the claimant was not intoxicated at the time of the injury. The appellant (carrier) contends on appeal that the hearing officer’s decision is against the great weight and preponderance of the evidence. The claimant urges affirmance.
DECISION
Affirmed.
The hearing officer did not err in determining that the claimant was not intoxicated at the time of the injury. Section 406.032 provides, in pertinent part, that an insurance carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. When drug use is alleged, “intoxication” is defined as not having normal use of mental or physical faculties resulting from the voluntary introduction into the body of a controlled substance, controlled substance analogue, or dangerous drug. Section 401.013. While there is a presumption of sobriety when a carrier presents evidence of intoxication, raising a question of fact, the claimant then has the burden to prove he was not intoxicated at the time of injury. Texas Workers’ Compensation Commission Appeal No. 951373, decided September 28, 1995.
The carrier contends that the hearing officer erred by finding that evidence produced by the carrier, the drug test administered on the day of the injury and the report and testimony of the toxicologist, was not sufficient to shift the burden to the claimant to prove that he was not intoxicated. In the Statement of Evidence, the hearing officer explains that he was not persuaded by the report and testimony of the toxicologist that the claimant was intoxicated at the time of injury and, therefore, the carrier had not produced sufficient evidence to shift the burden to the claimant to prove he was not intoxicated. We have held that a positive urinalysis or drug screen test is sufficient probative evidence of intoxication to shift the burden of proving that the employee had the normal use of his mental or physical faculties. Texas Workers’ Compensation Commission Appeal No. 980576, decided April 30, 1998. However, we have recognized that in limited circumstances a positive urinalysis may not shift the burden to the claimant. Texas Workers’ Compensation Commission Appeal No. 950656, decided June 9, 1995. In that case, we affirmed the determination of the hearing officer that a positive urinalysis, taken some 28 to 30 hours after the injury, and a toxicologist’s opinion that this was consistent with either pre- or post-injury usage of marijuana did not shift the burden to the claimant. The facts in the present case are readily distinguishable from those in Appeal No. 950656 in that the claimant’s urine sample was collected at the hospital within hours of the injury. Consequently, we do not necessarily agree with the hearing officer’s finding that the carrier failed to produce sufficient evidence to shift the burden to the claimant to prove that he was not intoxicated.
Nevertheless, we affirm the hearing officer’s decision because he additionally analyzed the facts as though the burden had shifted to the claimant and determined that the claimant established that he was not intoxicated at the time of the injury. While a positive drug test can shift the burden of proof to the claimant, it does not, in and of itself, compel a finding of intoxication at the time of injury. Texas Workers’ Compensation Commission Appeal No. 941099, decided September 30, 1994. Whether the claimant had the normal use of his mental or physical faculties at the time of the injury was a fact question for the hearing officer to resolve. The hearing officer considered evidence, including the report and testimony of the toxicologist, the testimony of the claimant, and the testimony of a coworker who observed the claimant working on the date in question, and determined that the claimant was not intoxicated.
The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). As an appellate reviewing tribunal, the Appeals Panel will not disturb the challenged factual 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). We are satisfied that the evidence sufficiently supports the hearing officer’s decision in favor of the claimant on the intoxication issue and, consequently, the carrier is not relieved from liability for the compensable injury.
Disability is likewise a question of fact to be determined by the hearing officer. Texas Workers’ Compensation Commission Appeal No. 93560, decided August 19, 1993. “Disability” is defined as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). The claimant bears the burden of establishing that a compensable injury was a producing cause of his disability. Under the facts of this case, we perceive no error in the hearing officer’s resolution of the disability issue.
The decision and order of the hearing officer are affirmed.
The true corporate name of the carrier is EMPLOYERS MUTUAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
HOWARD ORLA DUGGER
1702 NORTH COLLINS BLVD., SUITE 200
RICHARDSON, TX 75080.
Chris Cowan – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Michael B. McShane – Appeals Judge