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 September 28, 1998. The respondent (claimant) did not attend the September 28, 1998, CCH setting and the hearing officer sent him a “show cause” letter, informing him he could request another CCH setting and that the record would close on October 14, 1998, if he did not request one. Despite the letter, the claimant did not request another CCH setting and the record closed on October 14, 1998. The appellant (carrier) did not complain at the CCH and does not complain on appeal that it was denied the opportunity to cross-examine the claimant. With regard to the issue at the CCH, the hearing officer determined that the carrier is not relieved of liability due to the claimant’s alleged intoxication. The carrier appeals, seeks a reversal of the decision and argues that the claimant was intoxicated at the time of his compensable injury.
DECISION
We affirm.
The parties stipulated that on ___________, the claimant sustained an injury in the course and scope of his employment with (employer). (County) County Sheriff’s (Officer P) ___________, report reflected that at approximately 6:40 a.m. on ___________, the claimant was operating the employer’s truck, lost control of the truck, struck a guardrail and sustained multiple injuries, including injuries to his face. The claimant was transported to (hospital), where he received treatment. The hospital records showed that a specimen of the claimant’s urine was drawn at 7:55 a.m. on ___________. The hospital’s July 10, 1998, comprehensive drug screen report and September 25, 1998, lab specimen internal inquiry indicated the claimant’s urine sample was submitted to the hospital laboratory by Dr. Z and stated his drug screen test was “positive” for cannabinoids.
The hearing officer finds:
FINDINGS OF FACT
2.Carrier failed to present sufficient evidence to rebut the presumption of sobriety in this matter.
3.At the time of the accident which gave rise to Claimant’s injuries, Claimant was not intoxicated.
The carrier argues it presented evidence of intoxication which shifted the burden of proving the lack of intoxication to the claimant and he failed to meet his burden of proof. It maintains that the decision and order is so against the preponderance of the evidence as to be clearly wrong and manifestly unjust.
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. The carrier never has the burden of proof to show that an employee’s injury was caused by his intoxication. Texas Workers’ Compensation Commission Appeal No. 950266, decided March 31, 1995. 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” 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). “Cannabinoids,” “Cannibis sativa L.,” or “marijuana” are controlled substance analogues. Tex. Health and Safety CODE § 481.002(6)(B); 481.002(26); and 481.032(a)(3). Unlike the situation with alcohol intoxication cases, the 1989 Act does not mandate a presumptively intoxicating level of cannabinoids or tetrahydrocannabinol (THC), the active ingredient in marijuana.
In the case under review, the claimant’s drug screen test result was “positive,” without a corresponding amount of cannabinoids per unit of urine or an indication of what level of cannabinoids caused a “positive” result at the hospital’s laboratory. The significance of a “positive” test is not explained in the evidence in the record before us. In the “Statement of the Evidence” portion of the decision, the hearing officer reasons that “[t]here was no indication that Claimant was cited for driving while under the influence of a controlled substance in connection with the accident and, without more than the mere presence of cannabinoids at some unknown level, Carrier has failed to provide sufficient evidence to rebut the presumption of sobriety.” The question before us is whether the hearing officer erred in determining that the claimant’s positive drug screen test is insufficient to shift the burden of proving the lack of intoxication to the claimant because it only indicated “cannabinoids at some unknown level.” A “positive” drug test result for a controlled substance analogue, such as the test result in this case under review, can shift the burden of proving sobriety to the employee. Texas Workers’ Compensation Commission Appeal No. 950698, decided June 16, 1995; and Texas Workers’ Compensation Commission Appeal No. 941099, decided September 30, 1994. We discussed the criteria for shifting the burden of proving the lack of intoxication to the employee in several cases:
In Texas Workers’ Compensation Commission Appeal No. 92173, decided June 15, 1992, we affirmed a hearing officer’s determination that the result of a drug screen test two days prior to the injury, which revealed THC at a level of 290 nanograms per milliliter (ng/ml) of urine, and the results of a drug screen test four days subsequent to the injury, which revealed THC at a level of 705 ng/ml, shifted the burden of proving the lack of intoxication to the employee.
In Texas Workers’ Compensation Commission Appeal No. 94673, decided July 12, 1994, 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 a positive drug screen test result. 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. 980506, decided April 22, 1998 (Unpublished), the hearing officer determined that the employee was intoxicated at the time of his compensable injury and we reversed and rendered a decision that the employee was not intoxicated. However, we recognized that “we have allowed the burden of proof to shift to the claimant based on positive drug test results . . . .” Id.
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 positive test results in Appeal No. 92173, supra; Appeal No. 94673; supra, Appeal No. 941099, supra; Appeal No. 961817, supra; and Appeal No. 980506, supra, were accompanied by a quantitative amount of the controlled substance per unit of blood or urine.
Our later decisions indicate that a positive drug screen test, absent quantitative data regarding the amount of drug detected, may shift the burden of proving the lack of intoxication to the employee:
In Texas Workers’ Compensation Commission Appeal No. 950553, decided May 23, 1995, the employee’s drug screen test result showed positive for marijuana, without specifying any quantitative amount of the controlled substance. We affirmed the hearing officer’s determination that the burden of proving the lack of intoxication shifted to the employee and wrote: “The claimant’s positive urinalysis test results were sufficient evidence to shift to the claimant the burden of proving he was not intoxicated at the time of his injuries.”
In Appeal No. 950698, supra, there was “[n]o confirmatory cut-off level, quantitative value of drug found, or confirmatory test is indicated in the report,” and “[n]o expert testimony was presented to interpret the test.” Yet we held that “when the carrier came forward with evidence of the positive drug test for cocaine, the claimant presented evidence on his behalf . . . .” Id.
In Texas Workers’ Compensation Commission Appeal No. 960045, decided February 12, 1996, we reversed and remanded the case to the hearing officer, and directed him to allow the employee to propound deposition questions to the carrier’s expert witness. But we stated therein that “the presence of the THC metabolite in a urine sample can be sufficient to cause a claimant to have to prove his sobriety or non-intoxication.” Id.
In Texas Workers’ Compensation Commission Appeal No. 980576, decided April 30, 1998, we did not enter an opinion on the substantive issue of shifting the burden of proof because we had to remand the case for reconstruction of the record. However, that decision noted: “We have frequently 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 mental or physical faculties.” (Emphasis added.) Id.
In Texas Workers’ Compensation Commission Appeal No. 950656, decided June 9, 1995, where the employee’s drug screen test results were positive for marijuana and we affirmed the hearing officer’s refusal to find that the burden of proving the lack of intoxication shifted to the employee. However, the employee’s urine sample was not taken until 28 to 30 hours after the injury and we noted that the hearing officer relied on that delay to find the carrier’s evidence insufficient to shift the burden of proof.
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. 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 Company of Newark, New Jersey, 508 S.W.2d 701 (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 (Tex. App.-Houston [14th Dist.] 1984, no writ). We reverse the hearing officer’s factual determinations when 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).
Many of the Appeals Panel decisions cited above reviewed records where, in addition to a positive drug screen test result, the carrier presented lay testimony from the employee or his coworkers indicating drug use prior to the injury or his intoxicated state, or expert testimony interpreting the drug screen test result. In the case under review, the carrier presented the claimant’s positive drug screen test result alone. It did not avail itself to the discovery options available in the 1989 Act and the Texas Workers’ Compensation Commission’s rules. The carrier could have requested a subpoena for the claimant’s urine sample and had it independently tested. Section 410.153; TEX. GOV’T. CODE § 2001.189; Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.1 and 142.2 (Rules 142.1 and 142.2). It could also have requested the authority to take a deposition on written questions of Dr. Z or a person in the hospital’s laboratory with knowledge of relevant facts. Section 410.158(1); Rule 142.13(e). It did not make either request. The carrier could have sought a peer review opinion regarding the drug screen test result but did not do so. None of these actions are absolutely necessary for a carrier to present probative evidence of an employee’s intoxication so as to shift the burden of proving the lack of intoxication to the employee. A different finder of fact may have determined that the drug screen test result in the case under review, standing alone, was probative evidence of intoxication. Nevertheless, that does not necessitate a reversal of the decision.
Given the facts in the case under review, the hearing officer’s determination that the hospital’s ___________ and September 28, 1998, drug screen test reports do not constitute probative evidence to shift the burden of proving the lack of intoxication to the claimant is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra. Accordingly, we affirm Findings of Fact No. 2 and No. 3, the determination that the carrier did not rebut the presumption of sobriety, and the decision and order. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Christopher L. Rhodes – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Thomas A. Knapp – Appeals Judge