This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On July 27, 1999, a contested case hearing (CCH) was held. At issue was whether the respondent, who is the claimant, was in a state of intoxication when he was injured while at work on ___________, and whether he had disability due to his injury.
The hearing officer held that the appellant (carrier) was not discharged from liability for the claim because the claimant rebutted the evidence of the carrier with evidence showing that he had the normal use of his faculties at the time he was injured. The hearing officer found that the claimant had disability from April 6, 1999, to the date of the CCH.
The carrier has appealed, arguing that the persuasive evidence of its expert was not sufficiently rebutted by any evidence showing sobriety. The carrier argues that the statement on which the hearing officer relied was unsworn and given by someone who was not the claimant’s direct supervisor. The claimant responds by citing authority of similar cases and arguing that the hearing officer’s assessment of the facts should not be set aside on appeal.
DECISION
We affirm, pursuant to our standard of review.
The hearing officer has summarized the evidence thoroughly and it will be briefly summarized here. The claimant was employed by (employer) for two months prior to his asserted back injury of ___________. He said that he had been assigned to work at (client company) the day before and, around 1:30 p.m., hurt his back while lifting a piece of heavy sheet metal. He continued to work and told no one of the injury because he did not want to jeopardize his position there and because he thought it was a strain. Notwithstanding this, he said that he called the staffing director for the employer, (Ms. G), at 7:00 that night to report that he would likely not be able to work the next day because of an injury. He said he left a message for her on her answering machine and then called the following morning and was sent to the employer’s clinic. The claimant said his own doctor, (Dr. D), took him off work on April 6, 1999, and he has been unable to work since due to pain. Further testing was put off pending resolution of the dispute.
Ms. G testified that the employer would perform brief drug tests in their offices, which, if positive, would be sent to a lab for further analysis. Ms. G said that claimant had a native test administered on March 26th. She said that when he called the office to report his injury, claimant said he did not want to go to the doctor because he would not pass a drug test. Ms. G did not testify as to why or how the claimant left the employment of the employer, but a supplemental report of injury from the employer stated that his last day of work was April 5, 1999, and he was terminated for violating company drug screening policy.
The claimant said that it was on March 26th that he told Ms. G that he would not pass a drug test, apparently as a result of his last conceded use of marijuana at a party on March 15th. (It was not explained why he would conclude that this remote use would compromise a drug test 11 days later.) He said he had never taken one of the employer’s “in house” drug screens. Other than to describe it as a “paper” test, Ms. G did not further explain for what substances the test was equipped to screen.
Ms. G said that her understanding was that (Mr. E) was claimant’s direct supervisor at the client company and, when she talked to him, he told her that claimant seemed a little slow on ___________ and was acting kind of weird. There was no written statement from Mr. E offered into evidence.
There was a written, but unsworn, statement, ostensibly from (Mr. D), whom claimant identified as his actual supervisor at the client company, at least in terms of assigning him work. Mr. D’s statement identifies him as the warehouse manager who said that he observed claimant throughout ___________, and he did not seem impaired and performed his duties in a normal fashion. He stated it was his opinion that claimant was neither intoxicated nor under the influence of any substance that would impair his normal mental and physical faculties. The claimant also asserted that he was not intoxicated.
Claimant’s drug screen on March 31, 1999, showed that his marijuana metabolites level was 350 nanograms/milliliter (ng/ml). (Dr. K), a toxicologist who is also a medical school professor, stated that this was a very high level, consistent with active and recent use, and that while metabolites in urine were a surrogate for marijuana level, this level of metabolites had been shown through studies to correlate to a state of intoxication that would impair normal use of the faculties. He stated that the Texas Department of Transportation’s “cutoff” was 15 ng/ml. Dr. K also cited studies showing that persons who have drug addiction rarely admit accurately their use or frequency of use and that first-person history is therefore unreliable as evidence of use. His written report also stated that an intoxicated person will not necessarily “look” intoxicated.
The claimant said he had back and hip pain which prevented him from working. His answers to interrogatories also attribute his inability to work to depression, pneumonia, and lack of transportation. A claimant has the burden of proving by competent evidence that an injury occurred within the course and scope of his employment. Reed v. Aetna Casualty and Surety Co., 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref’d n.r.e.). However, even if otherwise within the course and scope of employment, if a claimant is intoxicated, the 1989 Act precludes his recovery for an injury. In this regard, a claimant need not prove he was not intoxicated as the courts will presume sobriety. Bender v. Federal Underwriters Exchange, 133 S.W.2d 214 (Tex. Civ. App.-Eastland 1939, writ dism’d judgm’t correct); March, infra. Nonetheless, when the carrier presents evidence of intoxication, raising a question of fact, the claimant then has the burden to prove that he was not intoxicated at the time of injury. March v. Victoria Lloyd Insurance Co., 773 S.W.2d 785 (Tex. Civ. App.-Fort Worth 1989, writ denied); Texas Employers’ Insurance Association v. Monroe, 216 S.W.2d 659 (Tex. Civ. App.-Galveston 1949, writ ref’d n.r.e.). The hearing officer found that the carrier presented evidence that shifted the burden of proof to the claimant. While another fact finder may have given other facts more weight, and found that claimant was intoxicated, the Appeals Panel is not a second-tier fact finder and will not reverse findings of fact absent a great weight and preponderance against the facts found. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied); American Motorists Insurance Co. v. Volentine, 867 S.W.2d 170 (Tex. App.-Beaumont 1993, no writ). The hearing officer could also choose to believe the claimant’s assertion of his inability to work, and the medical evidence of restrictions, as the reason that the claimant was unable to obtain and retain employment equivalent to his preinjury average weekly wage.
Accordingly, we affirm the hearing officer’s decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Judy L. Stephens – Appeals Judge