This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On September 9, 1998, a hearing was held. He (the hearing officer) closed the record on October 30, 1998, and determined that the deceased was not intoxicated at the time of his fatal injury on ___________; he also determined that the deceased’s beneficiaries (claimants) are his wife, TW, and his stepchildren, CLM and DWP, but reserved judgment as to whether CP is a beneficiary. Appellant (carrier) asserts that one witness, CS, should not have been allowed to testify, that four documents admitted at the request of claimants should have been excluded, and that the evidence was insufficient to support findings that say or support that the decedent was not intoxicated at the time of the accident, including a finding that the decedent is a chronic marijuana user and findings related to weather conditions and equipment found in the area. It also questions whether “PDP” has been shown to be a dependent and states that CP is not a dependent. Claimants replied that the decision should be affirmed except in regard to the determination relative to CP and a finding as to the weather; however, claimants’ reply was not timely to constitute an appeal of any determination.
DECISION
We affirm in part and reverse and remand in part.
Decedent worked for (employer). On ___________, a Sunday, he drove a water truck to a petroleum storage site in accordance with his duties; he was to “de-water” a vessel. There was a fire at the storage site that involved some tanks and the truck driven by the decedent. As a result of the fire, the decedent died on March 18, 1998.
A urine sample was taken after the accident and was reported to show the metabolite for marijuana was present at a rate of 172 nanograms per milliliter (ng/ml).
Dr. E (Dr. E has a doctorate in biochemistry) testified that the 172 ng/ml shows that the decedent had consumed marijuana. He said that the level found, together with certain acts of the decedent, such as where he parked his truck relative to the tanks and the prevailing wind, the lack of use of grounding lines, and a failure to acknowledge another employee, indicate that the decedent was impaired at the time of the accident. He also indicated that laymen could not generally tell whether a person was intoxicated from marijuana or not. Another expert’s opinion, provided by the carrier, was the statement of Dr. W. He indicated that excretion patterns are such that if the decedent only used marijuana once, he probably used it within 24 hours of the collection, whereas, if he used marijuana chronically, the level could remain elevated for two to three days after use and then decrease to less than 100 ng/ml in the following week. He also said that an excess of 100 ng/ml in one study was found to equate to impairment except in 17% of the subjects.
Clearly, the test results of 172 ng/ml, the testimony and statement of Dr. E, and the statement of Dr. W were sufficient to raise the question of intoxication, and the claimant then had to show that the decedent was not intoxicated at the time of the accident. Claimant provided the statements of Dr. G; one was provided prior to the statement of Dr. E and the other was provided after the exchange of Dr. E’s statement with the claimant. Dr. G in his initial statement dated July 7, 1998, said that the level of 172 ng/ml shows that claimant used marijuana within two to three days of the sample. He added that marijuana affects the body for only five to 12 hours after use and opined that there was no effect at or near the time the sample was taken. He concluded that decedent was not impaired at the time of the accident.
In addition, the claimant provided a statement from TM, who said that on ___________, he saw decedent getting his truck “ready for work.” He added that decedent did not appear to be intoxicated. JT also said in a statement that he observed decedent in the morning of ___________, when decedent was putting on his fire retardant suit and also spoke with him. He also concluded that the decedent did not appear intoxicated. There were no statements or any testimony by anyone who saw decedent on ___________, indicating that he appeared to be intoxicated.
Decedent’s wife, TW (claimant 1) testified that she and the decedent had lived together for a number of years but had been married in 1996 in (state). She testified that decedent cared for her two children, CLM and DWP, who lived with them. She added that each of the two children also receive $170.00 per month from the government, relative to a disability that their father has. She added that decedent’s income paid for their rent, food, utilities, clothing, etc., although up to about three months before the accident she too had worked, but only made $400.00 per month. She does not and cannot work now because of a non-workers’ compensation injury.
Claimant 1 also testified that the decedent did not smoke marijuana in their home but that on “Tuesday or Wednesday” (approximately four days before the accident) there had been a party at a restaurant and she smelled marijuana when she talked to decedent while he was sitting in a parked car with another person. Other than that, her testimony would indicate that the decedent’s use of marijuana was only occasional.
Statements provided by CC and ES indicated that the decedent had used marijuana. Both work for employer. CC stated that he once saw decedent smoke marijuana “on location” about eight or nine months before. He said decedent pulled out a pack of cigarettes and took a “marijuana joint” out and took “two or three puffs” and put it out. ES stated that he watched sports on television with decedent and “on some of these occasions, we did smoke marijuana.”
The hearing officer admitted four documents over the objection of carrier. They included the curricula vitae and statement of Dr. G dated August 8, 1998, after claimants had received a copy of Dr. E’s statement dated July 30, 1998. The hearing officer admitted these two documents after hearing from claimants’ lawyer that he did not receive Dr. G’s statement of August 8th as it is dated, but would have received it later; as soon as it was received, he sent a copy to carrier. Tex. W.C. Comm’n, TEX. ADMIN. CODE § 142.13(c) provides that documents will be exchanged within 15 days of the benefit review conference or “thereafter, parties shall exchange additional documentary evidence as it becomes available.” Similarly, later in the hearing, claimants offered exhibits 18 and 19, both of which are articles relating to marijuana that were proffered in “response to Dr. E’s report.” Under Rule 142.13(c) the hearing officer’s action in admitting these four documents was not an abuse of discretion. In addition, if it was error, it was not reversible error, because the statement of Dr. G dated in July 1998 was sufficient to support the determination in regard to intoxication.
Similarly, the carrier objected to the testimony of CS as not having been timely identified as a witness. The hearing officer ruled that notice was timely after the claimants discovered that CS could testify. While it may be a closer question as to why claimants could not have had knowledge of CS as a potential witness prior to notification of carrier on August 6, 1998, the testimony of CS (he never saw decedent use marijuana and he corroborated that decedent cared for the claimants) was provided in other evidence and was therefore cumulative. In addition, it did not (insofar as he testified about use of marijuana) affect the outcome of the hearing, because the hearing officer found decedent to be a chronic user of marijuana.
The hearing officer is the sole judge of weight and credibility of the evidence. See Section 410.165. Once the carrier provided evidence of intoxication through the drug test and the evidence of Dr. W and Dr. E, claimants had to show that the decedent was not intoxicated at the time of the accident. The determination of the hearing officer that decedent used marijuana two to three days before the accident was sufficiently supported by the testimony of claimant 1 and the statement to Dr. G provided in July 1998. While Dr. G also provided a statement in August that answered points made by Dr. E, the statement Dr. G provided in July may be given more weight by a fact finder than that of either Dr. W or Dr. E (and conclusions reached by Dr. E, such as the position of grounding lines, the location of the parked truck, and decedent’s failure to acknowledge another employee, do not have to be given significant weight by the hearing officer; see Gregory v Texas Employers Insurance Association, 530 S.W.2d 105 (Tex. 1975)), even without the latter statement of Dr. G. The determination of the hearing officer that the decedent had the normal use of his mental and physical faculties at the time of the accident is also sufficiently supported by the statements of TM and JT which indicated that claimant did not appear intoxicated on that day (which the hearing officer could credit even though Dr. E believed these individuals would be unable to determine whether decedent was impaired or not), the testimony of claimant 1 that the decedent did not smoke marijuana the night before, and the statement of Dr. G indicating that there was no evidence of impairment. These findings of fact, together with another finding that said decedent was not intoxicated at the time of the accident, sufficiently support the conclusion of law, which essentially says the same thing as the last cited finding of fact, that the decedent was not intoxicated at the time of the accident. The evidence, these findings of fact, and the conclusion of law just referenced, sufficiently support the conclusion of law that the carrier is not relieved of liability for the claim.
The decision of the hearing officer is affirmed insofar as it relates to the absence of intoxication and to the liability of the carrier. It is also affirmed in regard to the determination that claimant 1, is the wife of the decedent and that C is a dependent stepchild. The carrier’s point concerning the other stepchild, DWP, must be considered on remand. The list of exhibits indicates that the only documentary evidence proffered for DWP was not admitted. Therefore, evidence as set forth in Rules 132.1 – 132.15 must be provided in order for DWP to be found to be a dependent stepchild. In addition, Rules 132.1 – 132.15 do not appear to list nephews. If the evidence provided at the hearing is correct and CP is decedent’s nephew, as found by the hearing officer, then findings should indicate that he has not been shown to be an eligible dependent unless evidence shows that CP qualifies in some other way, consistent with applicable rules, such as adoption, to be an eligible dependent.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings,
pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Joe Sebesta – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Christopher L. Rhodes – Appeals Judge