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 April 28, 1997. With regard to the disputed issues at the CCH, 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 from October 22, 1996, through the date of the CCH. The carrier appeals, seeking a reversal of the decision, and the claimant responds, seeking its affirmance.
DECISION
We reverse and render.
The claimant was employed by (employer), as a forklift operator. The parties entered into the following stipulations:
E.In the event Claimant is found not to have been intoxicated on ______, the Parties agree that Claimant fell from a forklift, while at work and sustained injuries.
F.The parties agree that Claimant tested positive for cocaine on ______.
G.Claimant was fired by Employer for cause on October 28, 1996.
The hearing officer made the following findings of fact:
FINDINGS OF FACT
2.On ______, immediately preceding Claimant falling from a forklift at work and sustaining an injury, Claimant was in control of his mental and physical faculties while operating the forklift.
3.On ______, immediately following the Claimant’s work-related injury, the Emergency Room records reflect that Claimant was in control of his Mental and Physical Faculties.
According to the claimant’s testimony at the CCH, he was supposed to report to work on Monday, ______, at 6:00 a.m., but he did not clock in until 7:26 a.m. Sometime before 8:00 a.m., Mr. G, the claimant’s supervisor, found him next to the forklift. Mr. G called for an ambulance and the claimant was taken to the hospital, where he was treated at 8:52 a.m. He was noted as having a left eyebrow laceration, a left elbow abrasion and neck pain. The hospital record’s “nursing diagnosis (focus)” form has “altered body temperature,” “altered comfort (pain)” and “altered mental state” circled. The Initial Medical Report (TWCC-61) from Dr. P, whom the claimant saw at the hospital, notes the eyebrow injury and left hip and femur pain. The hospital emergency room records indicate that he could not remember the incident and note that he was “alert, oriented 1+ to P,P,T now. . . .” The hospital’s “nursing documentation” form notes that the claimant “needs drug screen.” The claimant testified that he consented to a drug screen, which was taken at the hospital on ______, at 11:00 a.m. The drug screen laboratory report revealed that the claimant’s urine was positive for cocaine metabolites, both on a 300 nanograms per milliliter (ng/ml) initial test level and on a 150 ng/ml confirmatory test level. Dr. K, a toxicologist, reviewed the claimant’s hospital and laboratory records at the carrier’s request and, on April 25, 1997, wrote:
[I]nitial testing showed cocaine metabolites to be present; and confirmatory testing by the mandatory specific and quantitative GC/MS (gas chromatography/mass spectrometry) determined cocaine metabolite to be present above 150 ng/ml of urine, the intoxicating level.
Dr. K concludes that:
1.Therefore, intoxication existed from cocaine abuse in [the claimant] at the time of his workplace injury on ______ from a urine specimen obtained proximate in time, by proper testing specifically and qualitatively at a DHHS certified laboratory by gas chromatography/mass spectrometry (GC/MS).
2.That cocaine intoxication caused physical and mental impairment that did not allow [the claimant] to perform his duties. . . .
On April 25, 1997, Dr. M, who also reviewed the hospital records at the carrier’s request, wrote:
Since [the claimant’s] accident happened in the early morning of ______, and his drug screen was done at 11:00 a.m. on the same date, in my medical opinion, [the claimant] had used Cocaine several days before or even the day of his on the job injury. In all reasonable medical probability, I feel [the claimant] was under the influence of Cocaine at the time of his injury.
The claimant testified at the CCH that he injured himself when he fell while stepping down off the forklift. He testified that he did smoke “crack cocaine” on the weekends prior to the injury, and that he may have smoked it on the Friday evening before the injury. He denied smoking it on the morning of the injury. He said that he knew that he was not intoxicated and hadn’t done anything wrong. Mr. G testified at the CCH that when he found the claimant on the morning of ______, the claimant “was conscious, but moaning and groaning. Not [sic] — he wasn’t coherent, but he was moving.” He said he called Mr. K, the employer’s general manager, who came outside where the claimant was. Mr. K testified that the claimant was incoherent and moaning, which indicated to him that the claimant may have been intoxicated. He testified that “when we were asking questions and that, I really felt like [the claimant] was acting kind of strange, to be honest with you.” The claimant said that he was unconscious when he was discovered by Mr. G, and argues that portions of the hospital records indicate he was unconscious.
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” 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). It is undisputed that cocaine is a controlled substance. 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).
The 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). It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). We will reverse that determination if we find that it is so weak or against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.).
The reports from the drug screen laboratory, Dr. K and Dr. M are sufficient to rebut the presumption of sobriety and shift the burden of proof to the claimant. The differences between the notations in the nurse’s forms and the hospital records do not prevent the shifting of the burden of proof to the claimant. The claimant did not present any evidence to meet his burden of proof to show that he was not intoxicated at the time of the accident. The claimant testified at the CCH that he smoked crack the Friday before the injury and that he was not intoxicated when he took the drug screen. Nevertheless, his opinion as to whether he was intoxicated is not proof he had the normal use of his mental and physical faculties. Although he testified that he did not have any problem driving the forklift, neither he nor any other witness testified that, at the time of the injury, he could operate it as he operated it before. Neither the claimant nor any other witness testified that he had the normal use of his mental and physical faculties, and Mr. G and Mr. K testified that he was moaning, groaning and incoherent when they found him.
The determination that the claimant met his burden of proof to show he was not intoxicated at the time he was injured is against the great weight and preponderance of the evidence.
We conclude that Findings of Fact Nos. 2 and 3 are not supported by the evidence and are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Therefore, the determination that the claimant met his burden of proving by a preponderance of the evidence that he was not intoxicated is not supported by the evidence. We reverse Findings of Fact Nos. 2 and 3 and hold that the carrier is relieved of liability. 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). The records of Dr. C, the claimant’s treating doctor, indicate that he first saw the claimant on November 15, 1996, and that the claimant has been unable to work since the date of the injury. Disability, by definition, depends upon there being a compensable injury. Id. While the determination with regard to the claimant’s disability is supported by the evidence and while the injury is compensable, the carrier is nevertheless relieved of the effects of the disability due to the claimant’s intoxication.
The decision is against the great weight and preponderance of the evidence and, therefore, we reverse the decision and render a new decision that the carrier is not liable due to the claimant’s intoxication.
Christopher L. Rhodes – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Tommy W. Lueders – Appeals Judge