There are two definitions of alcohol intoxication under the 1989 Act. Under the first definition, intoxication is defined as having an alcohol concentration to qualify as intoxicated under Section 49.01, Penal Code. Section 401.013(a)(1). Under the second definition, intoxication is defined as the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage, as defined by Section 1.04 of the Texas Alcoholic Beverage Code. Section 401.013(a)(2)(A). A finding that the IW was intoxicated at the time of the claimed injury under either definition will relieve the IC from liability and make the injury non-compensable. The IW is presumed to be sober at the time of the injury. Bender v. Federal Underwriters Exchange, 133 S.W.2d 214, (Tex.Civ.App.-Eastland, 1939, writ dism'd judgm't correct).

An IC is not liable for compensation if the injury "occurred while the IW was in a state of intoxication." Section 406.032(1)(A). The intoxication exception does not require a causal connection between the injury and the employee's intoxication and serves as an absolute exception to liability, regardless of the cause of injury. See Texas Indemnity Insurance Company v. Dill, 42 S.W.2d 1059 (Tex. App.-Eastland 1931), aff'd 63 S.W.2d 1016 (Tex. Comm'n App. 1933). Whether or not an IW was intoxicated due to the voluntary introduction into the body of an alcoholic beverage at the time of the injury is a question of fact for the HO to decide. APD 002818.

Affirmative Defense.

Alcohol intoxication is an affirmative defense raised by an IC to contest the compensability of a claimed injury. An IC that fails to properly raise intoxication as a specific issue and defense to course and scope and/or compensability at the administrative level waives the right to do so in the future.

IC failed to raise intoxication as a defense at the BRC, CCH, and appeal to the AP. IC sought judicial review and attempted to assert an intoxication defense in district court. The trial court refused to allow evidence of intoxication because the IC had not properly raised the issue at the administrative level. The IC appealed to the court of appeals. The court of appeals ruled as follows:

We hold that the defense of intoxication must be raised by the employer in the administrative review process in order to preserve the issue for appeal to the trial court. In this case, ESIS failed to raise the defense of intoxication at any stage of the administrative review process. As a result, the defense was waived, and the trial court was barred from adjudicating the issue on appeal. Therefore, we hold that the trial court did not abuse its discretion in refusing to introduce evidence on the defensive issue of Johnson's intoxication. ESIS, Inc., Servicing Contractor v. Johnson, 908 S.W.2d 554 (Tex. App.-Fort Worth 1995, writ denied).

Burden of Proof.

When an IC properly raises the defense of alcohol intoxication, there is a "shifting burden of proof." Since the IW is presumed to have been sober at the time the injury occurred, the initial burden is on the IC to present evidence that the IW was in a state of intoxication due the IW's voluntary introduction into the body of an alcoholic beverage. When the IC presents "probative evidence" of intoxication to rebut the presumption of sobriety, then the claimant has the burden to prove that he or she was not intoxicated at the time of the injury. March v. Victoria Lloyds Insurance Co., 773 S.W.2d 785 (Tex. Civ. App-Fort Worth 1989, writ denied).

Sufficient Evidence to Shift the Burden of Proof of Sobriety.

An extrapolation of a blood-alcohol concentration can be sufficient evidence to shift the burden of proof to the claimant to prove that he was not intoxicated from the voluntary introduction into the body of alcohol. APD 002818. A test revealing a blood alcohol concentration which is less than that provided for in Penal Code Section 49.01(2), along with other evidence, may be sufficient to shift the burden of proof regarding sobriety to the IW. APD 982483.

Not Sufficient Evidence to Shift the Burden of Proof of Sobriety.

An IW's refusal to submit to a drug or alcohol test does not shift the burden of proof on the issue of intoxication as a matter of law. That is not to say that a HO is precluded from finding, in light of all of the evidence presented, that the IW's refusal to submit to testing could be sufficient to overcome the presumption of sobriety. APD 033057.

Intoxicated from the Consumption of Alcohol: As a Matter of Law.

An IW who tests at or above the legal limit for alcohol concentration at the time of the claimed injury is intoxicated for purposes of the 1989 Act as a matter of law.

For claims based on a compensable injury that occurs after September 1, 1999, Section 401.013(a)(1), provides an alcohol concentration meeting the stated limit contained in Penal Code Section 49.01(2) (currently 0.08 or more) is by definition intoxication, and there need be no further analysis of whether the claimant had the "normal use" of his faculties. APD 042113.

For claims based on a compensable injury that occurs on or before September 1, 1999, intoxication is defined in Section 401.013(a)(1)as having an alcohol concentration as defined by Section 49.01 of the Texas Penal Code, of 0.10 or more.

In such a case, an IW would still remain free to try to prove that the tested level was inaccurate or that the tested concentration was impacted by some other condition or medication (excessive blood loss or analgesic medications, for example). APD 022407 and APD 011341.

Intoxication from the Consumption of Alcohol: Not as a Matter of Law.

There are many cases in which the IC asserts that the claimed injury is not compensable based upon the affirmative defense of alcohol intoxication. Often, the IC asserts that the IW was intoxicated from the voluntary consumption of alcohol at the time the injury occurred, but the testing upon which the IC relies was not performed until some time after the injury occurred.

This is not unusual in that most employers do not have the equipment or expertise to administer proper testing on the premises and immediately following a claimed injury. As such, the test may not have been administered until hours or days after the alleged injury. In these cases, either the IW's blood alcohol concentration may be too low to make a determination that the IW was intoxicated as a matter of law at the time of the injury, or so much time has elapsed that the blood alcohol concentration level could have occurred due to post-injury consumption of alcohol.

In such situations, the IC may present other evidence to show that at the time the claimed injury occurred, the IW did not have the normal use of his or her mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage.

In cases where the evidence fails to establish that at the time of the claimed injury, the IW was intoxicated as a matter of law due to the voluntary consumption of alcohol, but there is sufficient evidence to shift the burden of proving sobriety over to the IW, the issue of intoxication at the time of the claimed injury becomes a question of fact for the HO.

Evidence that IW was Intoxicated from Alcohol.

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is not compensable because the IW was intoxicated from the consumption of alcohol at the time the injury was sustained. For each of these fact circumstances there are cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

It was undisputed that the IW was injured "while doing his job." The IW testified that the evening prior to the injury, he ate dinner, consumed 6-8 beers, and went to bed around 10:00 p.m. The following morning, the IW went to work and had been doing his job for at least two hours without incident when he sustained his injury at approximately 9:30 a.m. The IW was taken to the ER and a blood-alcohol test performed at 10:48 a.m. showed a blood alcohol level of 0.069. The IC presented expert testimony regarding the normal metabolism rate for alcohol by the liver. By using extrapolation, the IC's expert testified that the IW's blood alcohol level at the time of the injury was between 0.084 and 0.089, and that in reasonable medical probability the IW was intoxicated at the time of the injury. The IW testified that he was not intoxicated, and presented statements from coworkers to support that assertion. While the blood test failed to establish that the IW was intoxicated as a matter of law, the HO chose to give greater weight to the IC's evidence and determined that the injury occurred while the IW was in a state of intoxication. Whether or not the IW had the normal use of his mental and physical faculties at the time of the injury was a question of fact for the HO to resolve. APD 002818.

The IW was injured in an MVA. IW testified that the evening before he was injured, he drank one 24-ounce can of beer and part of a second, and then went to bed around 10:30 p.m.; that he arrived at the employer's yard around 6:00 a.m. the following morning and commenced his duties as a delivery driver; that about 45 minutes into the drive he pulled over to sleep for a while; that he recalled resuming the drive; and that he had no recollection of the MVA. The hospital records indicated a "heavy odor of alcohol" and the airlift report indicated that alcohol was a possible contributing factor. The ER blood-alcohol test indicated the IW's blood alcohol concentration was 0.015. The IC's expert extrapolated the IW's blood alcohol level at the time of the injury to be 0.045 on the low end, 0.067 in the middle, and 0.115 at the high end. The IC conceded that the IW's blood alcohol concentration at the time of the accident was not high enough to meet the presumptive level for alcohol intoxication, but asserted that the evidence did show that the IW did not have the normal use of his mental or physical faculties. Based upon the evidence, the HO made a factual determination that the injury was not compensable because it occurred while the IW was in a state of intoxication. APD 010982.

Evidence that the IW was Not Intoxicated from Alcohol.

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is compensable because the IW was not intoxicated from the consumption of alcohol at the time the injury was sustained. For each of these fact circumstances there are cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

IW testified that around 9:00 p.m. his employer contacted him and told him they wanted him for a long-term job; that the IW informed the employer that he had been drinking and didn't want to go to work; that the employer said that was alright and not to drink anymore; that he was picked up and taken to the employer's drilling rig; that he started working at 11:00 p.m. that night; and that at 1:45 a.m. (2 hours and 45 minutes later) he sustained his injuries. IW testified that the employer's safety man arrived at the scene around 5:00 a.m.; asked the IW to give a urine sample in a clear plastic bag; that the bag was placed in the safety man's truck; that IW was taken to one hospital and then to a second where he arrived about 9:00 a.m.; and that the bag with the urine sample was still in the truck when he arrived at the second hospital. The individual that hired the IW for the job presented an affidavit that stated he contacted the IW regarding the job at about 8:45 p.m.; IW said he had drank three or four beers; that IW was told not to drink anymore and was picked up and taken to the work site; that he was with the IW from the time he picked the IW up until the time of the accident; and that he believed the IW had the normal use of his mental and physical faculties and was not in any way impaired from the time the IW was picked up until the time of the accident. Another co-worker also submitted an affidavit stating that the IW had the normal use of his mental and physical faculties, and the IW was in no way impaired. The IC presented evidence from a toxicologist who reviewed the drug test results and concluded that at the time of the injury, the IW's blood alcohol concentration was from 0.155 to 0.168 and that the IW was legally intoxicated. The urine sample tested was stated to have been in a sealed specimen bottle. The HO determined that the IW was not intoxicated at the time of the injury and was skeptical of the validity of the drug test because she believed the IW when he said he gave the sample in a bag. APD 000582.

IW was injured when he fell from a scaffold. A blood sample was collected approximately two hours and fifteen minutes after the fall at the ER. The blood test revealed that the IW had a blood alcohol level of 0.061. The IC presented evidence from a toxicologist who stated the normal metabolism rate for alcohol by the liver is about .015 to .020 gm/dl/hour. The toxicologist did not perform a retrograde extrapolation to determine the IW's blood alcohol level at the time of injury because the toxicologist did not know how much time had passed between the injury and the taking of the sample. The IC argued that the HO should have done the extrapolation on his own. The HO declined to do so and this was not error because in evaluating the reliability of a retrograde extrapolation the fact finder can consider whether several factors were considered, including weight, gender, typical drinking pattern and tolerance for alcohol, how much the person drank, and what and when the person had to eat. Based upon the IW's testimony, and that of his supervisor, the HO was likewise not persuaded that the IW did not have the normal use of his mental and physical faculties. These were questions of fact for the HO to resolve. APD 032338.