[Cross reference. Course and scope (C00)].

Intoxication is defined as 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 Health and Safety Code Section 481.002; a dangerous drug as defined by Health and Safety Code Section 483.001; an abusable glue or aerosol paint as defined by Health and Safety Code Section 485.001; or any similar substance, the use of which is regulated under state law. TLC Section 401.013(a)(2)(B)-(E).

Drug intoxication does not include the loss of normal use of mental or physical faculties resulting from the introduction into the body of a substance taken under and in accordance with a prescription written for the employee by the employee's doctor. TLC Section 401.013(b)(1). Drug intoxication also does not include inhalation or absorption of substances listed under TLC Section 401.013(a) incidental to the IE's work. TLC Section 401.013(b)(2).

If there is a blood test or urinalysis in evidence showing the presence of a controlled substance or controlled substance analogue, as defined by Health and Safety Code Section 481.002, the IE is presumed to have been intoxicated at the time of the injury and does not have the normal use of mental or physical faculties. TLC Section 401.013(c). Otherwise, the IE is presumed to have been sober at the time of the injury. While a positive blood test or urinalysis may create a rebuttable presumption of intoxication under TLC Section 401.013(c), testing of a hair sample would not. APD 121062. Additionally, the IE's refusal to take a drug test does not, as a matter of law, rebut the presumption of sobriety. APD 033057.

Affirmative Defense.

As with alcohol intoxication, drug intoxication is an affirmative defense raised by an IC to contest the compensability of a claimed injury. TLC Section 406.032(1)(A) provides that an IC is not liable for compensation if the injury occurred while the IE was in a state of intoxication.

Burden of Proof.

When an IC properly raises the defense of drug intoxication based on a blood test or urinalysis in evidence showing the presence of a controlled substance or controlled substance analogue, as defined by Health and Safety Code Section 481.002, the burden of proof then shifts to the IE to prove the IE had normal use of his or her mental or physical faculties. TLC Section 401.013(c).

TLC Section 401.013, as amended, effective September 1, 2005, does not require that the rebuttable presumption of intoxication of TLC Section 401.013(c) can only be rebutted by expert scientific or medical evidence and the AP declined to establish such a requirement. APD 062507-s and APD 220510. However, under the facts of APD 062507-s, the IE's one-line statement that he was not intoxicated did not overcome the rebuttable presumption of intoxication established by the drug screen, which tested positive for amphetamine and methamphetamine. It was error for the ALJ to apply a "common knowledge" standard on the metabolism rate of methamphetamine and to fail to comment or make findings on the rebuttable presumption of intoxication based on the positive amphetamine test result. APD 062507-s.

The ALJ erred in applying a "presumption of sobriety" standard, rather than a rebuttable presumption of intoxication standard, once a positive drug screen for marijuana was admitted into evidence. The ALJ applied the wrong legal standard to determine whether the IE was in a state of intoxication at the time of the claimed injury. This was legal error. APD 071008.

The ALJ held that the claimed injury did not occur while the IE was in a state of intoxication; as a result, the IC was not relieved from liability for compensation. Medical records in evidence reflected that a urinalysis was performed on the date of injury and the IE tested positive for cannabinoids. The ALJ stated that the initial drug screen provided insufficient testing information and was not persuasive to create a rebuttable presumption of intoxication. The AP noted that TLC Section 401.013(c) refers to a positive drug test based on a blood test or urinalysis but it does not specify any other requirements to establish a rebuttable presumption of intoxication. The AP held that the ALJ’s failure to apply a rebuttable presumption to the facts of this case was legal error, and it reversed and remanded the issue of intoxication back to the ALJ to apply the presumption of intoxication under TLC Section 401.013(c) based on the positive urinalysis for cannabinoids/marijuana in evidence. APD 171115.