This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On November 5, 1998, a hearing was held. She (the hearing officer) determined that the respondent (claimant) was compensably injured on ___________, that the appellant (carrier) was not relieved of liability because claimant was not intoxicated, and that claimant had disability from June 24, 1998, to November 5, 1998. Carrier asserts that the injury was not compensable because claimant was intoxicated; it states that it did present sufficient evidence to raise the issue of intoxication and that the hearing officer erred in finding that claimant had not lost the normal use of his mental and physical faculties at the time of the accident; and it says there was no disability since there was no compensable injury. The appeals file contains no reply from claimant.
DECISION
We affirm.
Claimant worked for (employer) as a pipe handler. He testified that on ___________, he was attempting to “pull myself up into a piperack” when his left shoulder came out of socket (dislocation). He testified that he was not intoxicated at the time. He also testified that he worked as he normally did and that no one called attention to any abnormality on his part on that day. He also was asked to describe his work, which he said included checking measurements on blueprints, locating where pipe goes, measuring and cutting the pipe, and taking the pipe to the proper place and installing it. He said he was able to do those tasks on the day of the accident, pointing out that the welder actually cut the pipe after he “lay it out for him.”
Claimant has dislocated this shoulder before and after one dislocation had to have surgery to it in July 1997. He stated that he occasionally uses marijuana, indicating approximately 10 or less times per year. Prior to ___________, he said the last time he smoked marijuana was on the evening of June 21, 1998; at that time he smoked with others after bars had closed and alcohol consumption had ceased. He said that the next day, June 22nd, he worked but felt hungover. That afternoon after work, he was riding in a pickup with another person who was smoking marijuana but he did not smoke any at that time.
Carrier provided evidence that when claimant was taken for medical care, his urine was tested to show 90 nanograms per milliliter (ng/ml). Another urine test was shown to have tested negatively when claimant began employment; that test was performed on urine provided on June 17, 1998.
A statement from JM, a cousin of claimant and an employee of employer, indicated that he worked with claimant and claimant had acted no differently on the job the date of the accident. The notes made at the hospital where claimant was taken after the accident indicate his eyes were not dilated, he was alert, he was oriented, and he had good responses to stimuli. While these observations were primarily related to consciouness, the hearing officer indicated that she considered them in regard to intoxication also.
For the carrier, Dr K testified that claimant’s urinalysis of 90 ng/ml showed that he was intoxicated at the time of the accident. Dr K ackowledged that a chain of custody form he had in regard to claimant was dated June 30, 1998, not ___________. He opined that claimant’s smoking of marijuana had occurred between June 17th and ___________ since claimant had tested negative on June 17, 1998. He also stated that intoxicants were still present after the “initial rush” and these would render a person intoxicated at a later time. As the hearing officer quoted in her Statement of Evidence, Dr K did opine, in response to a question about any amount reported above the cutoff of 50 ng/ml, that “yes” intoxication is shown in any level above 50 “because that has been a negotiated level and generally accepted by employers and union groups.”
While the hearing officer made no finding of fact relative to whether carrier’s evidence raised the issue of intoxication of claimant on ___________, she did comment on this point in her Statement of Evidence, saying that the evidence did not establish that the report reflected urine obtained on ___________. The hearing officer did not err in indicating concern that the sample taken was not shown to be from the date in question in view of the evidence of another sample taken and a report relating to another date. We note that March v. Victoria Lloyds Insurance Company, 773 S.W.2d 785 (Tex. App.-Fort Worth 1989, writ denied), while indicating that a chain of custody in that workers’ compensation case involving alcohol did not have to meet standards required in a criminal action, said that the sample in question in that case was shown to have been received and tested by the toxicologist; gaps in the chain of custody would then affect weight and not admissability.
The hearing officer on the record recited the correct burden of proof when she said, “after showing some evidence of intoxication, the burden shifts back to the claimant to show that he was not intoxicated.” The only finding of fact addressing intoxication simply says that at the time of the injury, claimant had not lost the normal use of his mental or physical faculties from induction of marijuana. It appears that the concern about the chain of custody of the urine sample exhibited by the hearing officer in her Statement of Evidence is consistent with the statements in March. The report showing 90 ng/ml was admitted. The hearing officer questioned whether the evidence showed that the report was based on a sample from the date in question. As fact finder she could choose to give less weight to the report based on problems with its chain of custody. She could note that while claimant acknowledged having used marijuana on June 21, 1998, the issue was intoxication on ___________, not prior use. We conclude that the evidence sufficiently supports the hearing officer’s statement that carrier did not show sufficient evidence of intoxication.
In addition, if carrier did show sufficient evidence of intoxication to require claimant to prove his sobriety, the same finding of fact is also sufficiently supported by the evidence presented that claimant had the normal use of his faculties, such as that of JM, the ER notes about claimant as he was brought in, and claimant’s own description of the details of his work which could give more weight to an opinion, such as that of JM, which then showed that claimant’s normal work included judgment and adherence to details. As the sole judge of the weight and credibility of the evidence (see Section 410.165), the hearing officer could also infer that with a prior urinalysis, just days before, which showed no marijuana, claimant was not a chronic user whose prior actions would appear “normal” because they too were affected by his use of marijuana.
While claimant showed little medical evidence after the date of this injury, the hearing officer pointed out that claimant testified to again dislocating the shoulder and being treated therefore; with no sole cause issue as to disability, she awarded disability from June 24, 1998, to November 5, 1998. As stated, carrier disputed disability on the basis of the lack of compensability. Having affirmed the determination that claimant was not intoxicated, the hearing officer’s determination of compensable injury is also affirmed with sufficient evidence showing that the injury arose out of the business of employer and while claimant was in the course and scope of employment. With a compensable injury affirmed, the determination of disability is also affirmed.
Finding that the decision and order are sufficiently supported by the evidence, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Elaine M. Chaney – Appeals Judge