Alcohol Intoxication Archives

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 9, 2015, in Austin, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) the claimed injury occurred while the claimant was in a state of intoxication, as defined in Section 401.013, thereby relieving the respondent (carrier) of liability for compensation; (3) the carrier specifically contested compensability on the issue of compensability pursuant to Section 409.022 and 28 TEX. ADMIN. CODE § 124.2(f) (Rule 124.2(f)); and (4) the claimed injury occurred while the claimant was in a state of intoxication, thereby relieving the carrier of liability for compensation.

The claimant appealed, disputing the hearing officer’s determinations of compensability, carrier waiver, and intoxication for both alcohol and drug. The claimant contends that the hearing officer’s determinations are against the great weight of the evidence. The carrier responded, urging affirmance of the disputed determinations.

DECISION

Affirmed as reformed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a-1). Section 410.204(a) provides, in part, that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1). Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case: (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but do not affect the outcome of the hearing. This case is a situation that requires correction but does not affect the outcome of the hearing.

The hearing officer’s determinations that: (1) the claimant did not sustain a compensable injury on (date of injury); (2) the claimed injury occurred while the claimant was in a state of intoxication, as defined in Section 401.013, thereby relieving the carrier of liability for compensation; (3) the carrier specifically contested compensability on the issue of compensability pursuant to Section 409.022 and Rule 124.2(f); and (4) the claimed injury occurred while the claimant was in a state of intoxication, thereby relieving the carrier of liability for compensation are supported by sufficient evidence and are affirmed.

In Finding of Fact No. 4, the hearing officer found that the carrier disputed the claim by filing a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) with the Texas Department of Insurance, Division of Workers’ Compensation (Division) on January 2, 2014, denying the claim in its entirety and offering the affirmative defenses of alcohol and drug intoxication. However, a review of the record reflects that the carrier filed its PLN-1 on June 25, 2013, rather than January 2, 2014, as found by the hearing officer. We reform Finding of Fact No. 4 to reflect the date the carrier disputed the claim by filing a PLN-1 with the Division on June 25, 2013, to conform to the evidence.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 2, 2014, in Fort Worth, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the claimed injury occurred while the appellant (claimant) was in a state of intoxication, as defined in Section 401.013, thereby relieving the respondent (carrier) of liability for compensation; and (2) the claimant did not have disability.

The claimant appealed the hearing officer’s determinations, contending that he rebutted the presumption of intoxication through his testimony and reports of two medical experts. The appeal file does not contain a response from the carrier to the claimant’s appeal.

DECISION

Affirmed.

The parties stipulated that the claimant sustained an injury at work on [Date of injury]. The claimant testified that he was injured when a tire weighing approximately 1000 pounds fell on him and broke his right tibia and fibula.

It was undisputed that a blood test was administered to the claimant on the date of injury. A toxicology report in evidence reflects that the blood test revealed an alcohol concentration greater than the legal limit of 0.08. The claimant contended at the CCH and on appeal that there was a breach in the standard operating procedure regarding the chain of custody of his blood specimen, and that the specimen that tested above the legal limit of 0.08 was in fact not his specimen. It is clear from the Discussion portion of the hearing officer’s decision that, based on a report in evidence from Dr. Rosen (Dr. R) discussing emergency room protocols used to draw blood, the hearing officer discounted the claimant’s argument regarding his specimen.

DISABILITY

The hearing officer’s determination that the claimant did not have disability is supported by sufficient evidence and is affirmed.

INTOXICATION

The hearing officer stated in the Discussion portion of the decision the following standard of law:

Regarding intoxication cases, [Section] 401.013(a)(1) defines intoxication as having an alcohol concentration to qualify as intoxicated under Section 49.01(2), of the Texas Penal Code. The Appeals Panel has held that an employee is presumed sober at the time of an injury. . . . However, a [c]arrier rebuts the presumption of sobriety if it presents ‘probative evidence’ of intoxication. . . . Once the carrier has rebutted the presumption, the employee has the burden of proving that he or she was not intoxicated at the time of the injury.

The hearing officer then analyzed the evidence presented by the claimant and the carrier to determine whether or not the claimant rebutted the presumption of intoxication, and ultimately explained that based on the evidence presented, the claimant was intoxicated at the time of the claimed injury, as defined in Section 401.013, and the carrier is relieved of liability for compensation.

Section 406.032(1)(a) provides that an insurance carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication.

Section 401.013 provides the following:

(a) In this subtitle, “intoxication” means the state of:
(2) having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code [currently 0.08 or more]; or (emphasis added)
(3)not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of:
(D) an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code.

The Appeals Panel has held that for the purpose of the 1989 Act, an alcohol concentration meeting the stated limit contained in Penal Code Section 49.01(2) (currently 0.08 or more) is by definition intoxication, not merely a presumption, and there need be no further analysis of whether the claimant had the "normal use" of his faculties. See Appeals Panel Decision (APD) 91012, decided September 11, 1991; APD 972159, decided November 25, 1997; and APD 042113, decided October 11, 2004.

As noted above, it was undisputed that a blood test was administered to the claimant on the date of injury. The hearing officer was persuaded by the evidence presented that the toxicology report reflected that the claimant’s alcohol concentration was greater than the legal limit of 0.08, and found that when the claimant was injured at work on[Date of injury], the claimant had an alcohol concentration to qualify as intoxicated under Section 49.01(2) of the Texas Penal Code. This finding is supported by sufficient evidence.

As explained above, an alcohol concentration of 0.08 or more is intoxication for purposes of the 1989 Act as a matter of law, and therefore no analysis should be made as to whether the claimant had the “normal use” of his faculties. A written decision is issued in this case to clarify the correct legal standard regarding intoxication due to the state of having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code.

Because the hearing officer’s finding that when the claimant was injured at work on[Date of injury], he had an alcohol concentration to qualify as intoxicated under Section 49.01(2) of the Texas Penal Code is supported by sufficient evidence, we affirm the hearing officer’s determination that the claimed injury occurred while the claimant was in a state of intoxication, as defined in Section 401.013, thereby relieving the carrier of liability for compensation.

The true corporate name of the insurance carrier is COMMERCE & INDUSTRY INSURANCE and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 12, 2004. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury on ______________; that because the claimant did not sustain a compensable injury, he did not have disability; and that the claimed injury occurred while the claimant was in a state of intoxication, thereby relieving the respondent (carrier) for compensation. The claimant appealed on sufficiency of the evidence grounds. The carrier responded, urging affirmance.

DECISION

Affirmed.

INJURY AND DISABILITY

We have reviewed the complained-of injury and disability determinations and conclude that those determinations involved questions of fact. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a); Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). It was for the hearing officer, as the trier of fact, to resolve the conflicts and inconsistencies in the evidence and to determine what facts had been established. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). In the instant case, the hearing officer commented that while the claimant was out of town for an employer sponsored management training seminar, “he was not furthering the affairs of the employer when he attempted to assist an intoxicated female at a club at 2:00 a.m. and was struck by a vehicle.” Nothing in our review of the record reveals that the hearing officer’s injury determination is so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. As such, no sound basis exists for us to reverse that determination on appeal. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Without a compensable injury, the claimant would not have disability as defined by Section 401.011(16). Consequently, the hearing officer did not err in determining that the claimant has not had disability.

INTOXICATION

Section 406.032(1)(a) provides that an insurance carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. The definition of intoxication applicable to this case is the state of having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code. Section 401.013(a)(1). The sobriety of the injured employee at the time of the injury is presumed but when the carrier rebuts that presumption with probative evidence of intoxication, the burden shifts to the employee to prove that he or she was not intoxicated at the time of the injury. The Appeals Panel has held that for the purpose of the 1989 Act, an alcohol concentration meeting the stated limit contained in Penal Code Section 49.01(2) (currently 0.08 or more) is by definition intoxication, not merely a presumption, and there need be no further analysis of whether the claimant had the "normal use" of his faculties. Texas Workers’ Compensation Commission Appeal No. 91012, decided September 11, 1991; Texas Workers' Compensation Commission Appeal No. 972159, decided November 25, 1997. In the instant case, the hearing officer’s intoxication determination is supported by the test results that show a blood alcohol concentration level at 0.16, and by the opinion of a medical toxicologist. We conclude that the hearing officer’s intoxication determination is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, supra.

We affirm the hearing officer’s decision and order.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS STREET, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Veronica L. Ruberto

CONCUR:

Judy L. S. Barnes
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 7, 2004. With respect to the issues before her, the hearing officer determined that the respondent (claimant) sustained an injury in the course and scope of his employment on ________________; that the claimed injury did not occur while the claimant was in a state of intoxication therefore, the appellant (carrier) is not relieved of liability for compensation; and that the claimant had disability, as a result of his compensable injury, from March 12, 2004, through the date of the hearing. In its appeal, the carrier asserts error in each of those determinations. In his response to the carrier’s appeal, the claimant urges affirmance.

DECISION

Affirmed.

The success of the carrier’s argument that the claimant did not sustain a compensable injury and that he did not have disability is dependent upon the success of its argument that the claimant was intoxicated at the time of his injury. On ________________, the claimant injured his right shoulder, while breaking a seam bolt loose with a wrench and a ratchet. Following his injury, the claimant tested positive for the presence of marijuana metabolites at a level of “83 ng/ml on a dilute specimen.” The carrier introduced a report from Dr. A who stated “In my opinion, based on reasonable medical probability, the employee was in a state of acute intoxication at the time of the injury based on the drug urine result for marijuana, which was high enough to impair his abilities (impaired judgment and coordination), and that the intoxication and impairment were proximate causes to his accidental injury.” The claimant relied on witness statements from two coworkers, his own testimony, and the testimony of Mr. Z, the foreman of the job where the claimant was working at the time of his injury, to demonstrate that he had the normal use of his mental and physical faculties at the time of his injury.

Section 406.032(1)(A) provides that a carrier is not liable for compensation if the employee was in a state of intoxication at the time of the injury. For purposes of this case, intoxication is defined as not having the normal use of mental or physical faculties from the voluntary introduction of a controlled substance into the body. See Section 401.013(a)(2). An employee is presumed sober. Texas Workers' Compensation Commission Appeal No. 94247, decided April 12, 1994. A carrier rebuts the presumption by presenting probative evidence of intoxication. Texas Workers' Compensation Commission Appeal No. 91018, decided September 19, 1991. Once a carrier introduces evidence of intoxication, the burden shifts to the employee to prove that he was not intoxicated at the time of injury. In this instance, there is no dispute that the positive drug screen was sufficient to shift the burden to the claimant to prove that he was not intoxicated at the time of his injury. Whether a claimant is intoxicated at the time of an injury is a question of fact for the hearing officer to decide. Texas Workers' Compensation Commission Appeal No. 950266, decided March 31, 1995. The hearing officer was acting within her province as the fact finder in crediting the evidence from the claimant, and the claimant’s supervisor, and his coworkers in determining that the claimant had the normal use of his mental and physical faculties at the time of his injury and, thus, was not intoxicated within the meaning of the 1989 Act. Our review of the record does not demonstrate that the hearing officer's determination in that regard is so contrary to the great weight of the evidence as to be clearly wrong or manifestly unjust. Accordingly, no sound basis exists for us to reverse the intoxication determination on appeal. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). Finally, we find no merit in the carrier’s assertion that the hearing officer applied an incorrect standard in resolving the intoxication issue. The hearing officer specifically found that the claimant had the normal use of his mental and physical faculties at the time of his injury. That is, she properly identified the standard and applied it in this case. Thus, we simply cannot agree that the hearing officer applied the incorrect legal standard in considering and resolving the intoxication issue.

Given our affirmance of the hearing officer’s determination that the claimant was not intoxicated at the time of his injury at work on ________________, we likewise affirm the determination that he sustained a compensable injury and that he had disability from March 12, 2004, through the date of the hearing.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Elaine M. Chaney
Appeals Judge

CONCUR:

Daniel R. Barry
Appeals Judge

Gary L. Kilgore
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 3, 2004. The hearing officer determined that: (1) the appellant (claimant) did not sustain a compensable injury on _____________ or _______________; (2) the date of the claimed injury is _______________; (3) because the claimant did not sustain a compensable injury, she does not have disability; and (4) the claimed injury did not occur while the claimant was in a state of intoxication and the respondent (carrier) is not relieved of liability for compensation for this reason. The claimant appealed, asserting that the hearing officer improperly admitted medical evidence and had these medical documents been excluded a favorable decision for the claimant would have occurred. The carrier responded, urging affirmance. The hearing officer’s date of injury and intoxication determinations have not been appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed.

The claimant complains that the hearing officer improperly admitted Carrier’s Exhibits Nos. 1, 2, 3, and 18 that purport to show medical evidence from medical experts, and that the hearing officer gave improper weight to the complained-of exhibits. At the CCH, the claimant complained that the carrier did not respond properly to interrogatories to enable the claimant to check the medical experts’ backgrounds and basis of their testimony. The carrier responded that it did respond properly and that the medical documentation was exchanged timely. The hearing officer overruled the claimant’s objection and admitted Carrier’s Exhibits Nos. 1, 2, 3, and 18. To obtain a reversal on the basis of admission or exclusion of evidence, it must be shown that the ruling admitting or excluding the evidence was in error and that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). It has also been stated that reversible error is not ordinarily shown in connection with rulings on questions of evidence unless the whole case turns on the particular evidence admitted or excluded. Atlantic Mutual Insurance Company v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref'd n.r.e.). Under the facts of this case, we conclude that the claimant has not shown that the error, if any, in the admission of the complained-of evidence amounted to reversible error.

The hearing officer did not err in determining that the claimant did not sustain a compensable injury on or about _____________ or _______________. The claimant had the burden of proof on the injury issue and it presented a question of fact for the hearing officer to resolve. Johnson v. Employers Reinsurance Corp., 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). The hearing officer is the sole judge of the relevance and materiality of the evidence and of its weight and credibility. Section 410.165(a). The hearing officer resolves the conflicts and inconsistencies in the evidence and decides what facts the evidence has established. Texas Employers Ins. Ass'n v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). Nothing in our review of the record demonstrates that the hearing officer’s injury determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust; therefore, no sound basis exists for us to reverse that determination on appeal. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

The 1989 Act requires the existence of a compensable injury as a prerequisite to a finding of disability. Section 401.011(16). Because we have affirmed the hearing officer’s determination that the claimant did not sustain a compensable injury, we likewise affirm the determination that she did not have disability.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is TRAVELERS INDEMNITY COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Michael B. McShane

Appeals Panel

Manager/Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on January 30, 2004. The hearing officer decided that the appellant (claimant herein) was intoxicated at the time his injury occurred relieving the respondent (carrier herein) from liability for the injury, and that consequently, the claimant did not have disability. The claimant appeals, contending that there are errors in the hearing officer’s decision that need to be corrected and that the blood test upon which the hearing officer based his determination of intoxication was not accurate in light of the other evidence. The carrier responds that the evidence supports the decision of the hearing officer.

DECISION

We reform the decision of the hearing officer by correcting typographical errors. Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer as reformed.

We first address the issue of typographical errors in the decision of the hearing officer. The claimant argues that in his Conclusion of Law No. 2 the hearing officer determined that the claimant was intoxicated from the involuntary introduction of a controlled substance into his body. The claimant points out that this case dealt with the issue of alcohol intoxication, and not with an issue of intoxication from a controlled substance. We recognize that this is clearly the case and reform the hearing officer’s decision to read “alcohol” where it reads “controlled substance.” The claimant also points out that the hearing officer’s decision reflects that Carrier’s Exhibit No. 8 was admitted when the record reflects it was excluded because it was not timely exchanged. There is also a clear notation on the carrier’s exhibit list that Carrier’s Exhibit No. 8 was excluded and the hearing officer makes no reference to this exhibit either in his discussion of the evidence or in his findings. We find that the listing of Carrier’s Exhibit No. 8 as an exhibit that was admitted is a typographical error and reform the hearing officer’s decision to reflect that this exhibit was proffered but was not admitted.

It is undisputed that the claimant was injured in a one-vehicle rollover accident on _____________, while working as a truck driver. This accident took place at approximately 1:00 p.m. It is also undisputed that the claimant was taken from the scene of the accident to an emergency room where a blood test taken at 1:45 p.m. indicated a blood alcohol level of .2978 and where a second blood test taken at 6:31 p.m. showed a blood alcohol level of .1951. The claimant argues that these admittedly very high blood alcohol levels were inconsistent with the descriptions of the claimant’s physical condition both at the scene of the accident and at the emergency room. The claimant presented a medical report from Dr. B, who states that he reviewed both the records of the emergency medical service and emergency room personnel and concluded as follows:

The emergency room and EMS records depict a patient totally different from a patient who has a 0.3% blood alcohol concentration, as indicated by the laboratory testing. It is my opinion that, within reasonable medical probability, [the claimant’s] blood alcohol concentration could not have been 297.8 mg./dl. as indicated by the laboratory report.

Section 406.032(1)(A) provides that an insurance carrier is not liable for compensation if the injury occurred while the claimant was in a state of intoxication. Section 401.013(a) defines intoxication as:

(1)having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code; or

(2)not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of:

(A)an alcoholic beverage. . . .

The Penal Code section cited, effective September 1, 1999, lists the referenced concentration as 0.08, the ratio of alcohol to specified amounts of blood and urine cited in the first provision of that statute.

The question of whether the claimant had an alcohol concentration of 0.08 at the time his injury occurred was a question of fact for the hearing officer. There was conflicting evidence concerning the accuracy of the blood alcohol testing. The hearing officer was persuaded that the claimant met the definition of alcohol intoxication in this case and nothing in our review of the record reveals that the hearing officer’s determination in that regard is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Thus, no sound basis exists for us to reverse that determination on appeal. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

The success of the claimant’s challenge to the hearing officer’s disability determination is dependent upon the success of his argument that he did have a compensable injury because he was not in a state of intoxication at the time of the injury. Given our affirmance to the determination that the claimant was intoxicated at the time of the injury, we likewise affirm the determination that the claimant did not have disability. Since the claimant was intoxicated, the carrier is not liable for compensation. With no compensable injury found, there is no loss upon which to find disability. By definition disability depends upon a compensable injury. See Section 401.011(16).

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Gary L. Kilgore
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Edward Vilano
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 13, 2003. The hearing officer determined that the decedent was in a state of intoxication at the time of the fatal accident and that the self-insured (carrier) is relieved of liability.

The appellant (claimant beneficiary) appealed, contending, as she had at the CCH, that an accurate blood alcohol reading at the time of the accident cannot be determined due to several unknown factors. The self-insured responds, urging affirmance.

DECISION

Affirmed.

This is an alcohol intoxication case. The decedent, a parole officer, was returning from a training conference (course and scope is not an issue) when he was involved in a one-vehicle accident (his vehicle crossed the center line and overturned in the ditch with no evidence of braking or evasive steering), which ultimately led to his death. The accident occurred at about 6:30 to 7:00 p.m. on ______________. There was conflicting evidence whether the decedent smelled of alcohol and whether the overturned vehicle had an open container of alcohol (the police (DPS) report stated there was an odor and an open container but a witness who was first on the scene said there was not). The decedent was taken to a hospital where a drug screen showed an ethyl alcohol level of 0.103 mg/dl. A laboratory blood test of blood drawn at 11:05 p.m. on ______________, showed an alcohol level of 0.112. A DPS blood specimen was drawn between 11:30 p.m. on ______________, and 12:30 a.m. on __________. Eventually that specimen was tested to have a blood alcohol level of .09. Dr. C testified for the self-insured, using retrograde extrapolation, that at the time of the accident the decedent had a blood alcohol level of between .16 and .18. The claimant’s expert, Dr. B, submitted a report and testified that using factors enunciated in Mata v. State of Texas, 46 S.W.3rd 902 (Tex. Crim. App. 2001) (drinking pattern, how much the person drank, what the person drank, the time of the last drink and how much, what, if anything, the person had eaten), it was not possible to determine the decedent’s blood alcohol level at the time of the accident. Both Dr. C and Dr. B addressed the peaking factor, where the blood alcohol level does not peak until some time after consumption, but reached differing conclusions.

Section 406.031(1)(A) provides that an insurance carrier (the self-insured in this case) is not liable for compensation if the injury occurred while the employee is in a state of intoxication. Section 401.013(a) defines intoxication as having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code (currently 0.08 or more, the statutory definition of intoxication was lowered from 0.10 to 0.08 effective September 1, 1999); or not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of a specific list of substances, including alcohol. An employee is presumed sober at the time of an injury. Texas Workers' Compensation Commission Appeal No. 94247, decided April 12, 1994. However, a carrier rebuts the presumption of sobriety if it presents “probative evidence” of intoxication. Texas Workers' Compensation Commission Appeal No. 91018, decided September 19, 1991. March v. Victoria Lloyds Insurance Co., 773 S.W.2d 785 (Tex. App.-Fort Worth 1989, writ dism’d). Once the carrier has rebutted the presumption, the employee has the burden of proving that he or she was not intoxicated at the time of the injury. Id.

The Appeals Panel has held that for the purposes of the 1989 Act, an alcohol concentration meeting the stated limit contained in Penal Code Section 49.01(2) is by definition intoxication, not merely a presumption, and there need be no further analysis of whether the claimant had the “normal use” of his faculties. Texas Workers' Compensation Commission Appeal No. 91012, decided September 11, 1991; Texas Workers' Compensation Commission Appeal No. 972159, decided November 25, 1997. A claimant would still remain free 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). Texas Workers' Compensation Commission Appeal No. 011341, decided July 30, 2001. In this case Dr. B did not testify that the tested level was inaccurate or that the tested concentration was impacted by some other condition, but rather that because certain factors were unknown the blood alcohol level at the time of the accident, between 6:30 and 7:00 p.m., could not be determined. In Texas Workers' Compensation Commission Appeal No. 030090, decided March 5, 2003, the Appeals Panel discussed retrograde extrapolation, the Mata, supra, case, and Mireles v. Texas Department of Public Safety, 993 S.W.2d 426 429 (Tex App.-San Antonio) aff´d 9 S.W.3d 128 (Tex. 1999).

In this case the hearing officer did not comment or find whether the burden shifted to the decedent to prove that he was not intoxicated. Rather the hearing officer found that the decedent’s “blood alcohol concentration level was greater than 0.08 at the time of the one-vehicle accident on ______________.” The question of whether the decedent had an alcohol concentration of greater than 0.08 at the time of the accident was a question of fact and the hearing officer’s determination is supported by sufficient evidence. As noted, although the peaking factor was discussed by the experts, there was no scenario or testimony presented which suggested that the decedent’s blood alcohol level was less than 0.08 at 6:30 to 7:00 p.m. on ______________. Dr. B merely testified that he could not accurately determine the blood alcohol level at that time because of the unknown factors.

We have reviewed the complained-of determination and conclude that the hearing officer’s determinations are not erroneous as a matter of law and are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We affirm the hearing officer’s decision and order.

The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

For service in person the address is:

RON JOSSELET, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR

AUSTIN, TEXAS 78701.

For service by mail the address is:

RON JOSSELET, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Thomas A. Knapp
Appeals Judge

CONCUR:

Judy L. S. Barnes
Appeals Judge

Edward Vilano
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 2, 2002. The hearing officer determined that the claimed injury did not occur while the respondent (claimant) was in a state of intoxication and that the appellant (carrier) did not waive its right to contest compensability of the claimant’s injury. The carrier appeals the intoxication determination on sufficiency of the evidence grounds. The claimant responds, urging affirmance. The carrier waiver determination was not appealed and has become final. Section 410.169.

DECISION

Affirmed.

The hearing officer did not err in reaching the complained-of determination. The determination involved a question of fact for the hearing officer to resolve. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. While the evidence indicates that there was some level of alcohol present in the claimant’s system after his injury as shown by tests done at the hospital, and this may be sufficient to shift the burden to the claimant to prove that he was not intoxicated at the time of the injury, the evidence is sufficient to support the hearing officer’s determination that the claimant had the normal use of his physical and mental faculties, and that he was not intoxicated at the time of the injury. We can infer that the hearing officer knows and properly applies the law, even if he has not set forth in his decision the exact steps he followed in his analysis of the evidence. As an appellate-reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We are satisfied that the evidence sufficiently supports the hearing officer's decision in favor of the claimant on the intoxication issue and, consequently, the carrier is not relieved from liability for the compensable injury.

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RUSSELL R. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Michael B. McShane

Appeals Panel

Manager/Judge

CONCUR:

Edward Vilano
Appeals Judge

Daniel R. Barry
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 20, 2002. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) was not in a state of intoxication when his injury occurred at work on ____________, and thus the appellant (carrier) is not relieved of liability for workers’ compensation benefits, and that the claimant had disability from March 27, 2002, through the date of the CCH. The carrier appealed and the claimant responded. In Texas Workers’ Compensation Commission Appeal No. 022407, decided November 13, 2002, the Appeals Panel reversed the hearing officer’s decision and remanded the case to the hearing officer. In his decision on remand, the hearing officer again decided that the claimant was not in a state of intoxication when his injury occurred at work on ____________, and thus the carrier is not relieved of liability for workers’ compensation benefits, and that the claimant had disability from March 27, 2002, through the date of the CCH, August 20, 2002. The carrier appeals the hearing officer’s determinations on the issues of intoxication and disability. The claimant’s response requests that we affirm the hearing officer’s decision on remand.

DECISION

Affirmed.

Section 406.032(1)(A) provides that an insurance carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. Appeal No. 022407, supra, sets forth the applicable law with regard to intoxication. The carrier relied on a report from a medical toxicologist which used a retrograde extrapolation to determine that, based on a blood-alcohol concentration of 0.051 approximately one and one-half hours after the injury, the claimant’s blood-alcohol concentration at the time of the injury was 0.081. The Appeals Panel has held that 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. Texas Workers’ Compensation Commission Appeal No. 002818, decided January 17, 2001. In fact, in Texas Workers’ Compensation Commission Appeal No. 011341, decided July 30, 2001, the Appeals Panel rendered a decision that a claimant was intoxicated based on retrograde extrapolations from two medical toxicologists.

However, it has been noted in Texas case law that courts in the criminal context have generally found that this question of extrapolation, the lag time between driving and the chemical test, is an issue for the trier of fact to weigh in its decision. Mireles v. Texas Department of Public Safety, 993 S.W.2d 426, 429 (Tex. App.-San Antonio) aff’d. 9 S.W.3d 128 (Tex. 1999). The Mireles case concerned an administrative driver’s license suspension for driving while intoxicated where there was a breath test, which showed an alcohol concentration over 0.10 (the legal limit in effect at the time), but no extrapolation evidence to the time of driving, and in a per curiam opinion upholding the suspension, the Texas Supreme Court noted that nothing in the statutory framework of the driver’s-license-suspension procedure mandated extrapolation evidence (under the applicable statute, a finding against the defendant could not be made if the breath test was less than 0.10), but that, if offered, scientific extrapolation evidence may be subject to a reliability analysis. In Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001), the court remanded a conviction for driving while intoxicated based on its determination that the state failed to prove that the expert’s retrograde extrapolation was reliable. The court stated that a retrograde extrapolation “is the computation back in time of the blood-alcohol level – that is, the estimation of the level at the time of driving based on a test result from some later time.” The court in Mata noted that it believed that the science of retrograde extrapolation can be reliable in a given case, but also noted that in evaluating the reliability of a retrograde extrapolation, a court should consider various enumerated things, including, among others, whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert on providing his extrapolation. Some of the things listed by the court were weight, gender, typical drinking pattern and tolerance for alcohol, how much and what the person had to drink, and what the person had to eat and when he ate. The court stated that it could not determine an exact blueprint for reliability in every case. The court also noted that it was not addressing whether retrograde extrapolation is necessary in a DWI case.

In the instant case, the hearing officer was not persuaded of the reliability of the toxicologist’s retrograde extrapolation based in part on what was not in the toxicologist’s report regarding factors affecting the claimant’s own rate of metabolism. In addition, we note that there was a witness who testified that the claimant looked normal when he left from the witness’s house for work the evening of the accident. Although the hearing officer again erred in referring to a 0.08 alcohol concentration as a rebuttable presumption, because that level of alcohol concentration is a definition of intoxication (See Section 401.013(a)(1) and Appeal Nos. 011341 and 022407, supra), whether the claimant had that level of alcohol concentration when the injury occurred or whether the claimant did not have the normal use of his mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage when the injury occurred were fact questions for the hearing officer to determine from the evidence presented. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. We conclude that the hearing officer’s determinations on the issues of intoxication and disability are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

We affirm the hearing officer’s decision and order on remand.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RUSSELL R. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Robert W. Potts
Appeals Judge

CONCUR:

Judy L. S. Barnes
Appeals Judge

Edward Vilano
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 20, 2002. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) was not in a state of intoxication on _____________, when he sustained his work-related injuries; that the claimant sustained a compensable injury on _____________; and that the claimant had disability from March 27, 2002, through the date of the CCH. The appellant (carrier) appeals the determinations, arguing that the great weight and preponderance of the evidence establishes that the claimant was intoxicated at the time of his injury. The carrier additionally argues that the hearing officer erred in taking official notice of the Texas Commission on Alcoholism’s (TCA) officially recognized range of metabolic rates of bodily disposition of alcohol per hour and a prior Appeals Panel decision after the close of the hearing. The claimant responded, urging affirmance.

DECISION

Reversed and remanded.

The claimant worked as an iron worker for the employer. It was undisputed that on _____________, the claimant sustained severe multiple injuries when he fell in an internal vessel structure he had entered to try to dislodge a beam that was stuck.

At the CCH and on appeal, the carrier maintained that it should be relieved of liability because the claimant was intoxicated at the time of the accident. The 1989 Act defines intoxication as having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code (currently 0.08 or more, the statutory definition of intoxication was lowered from 0.10 to 0.08 effective September 1, 1999); or not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of a specific list of substances, including alcohol. [Emphasis added.] See Section 401.013(a). The hearing officer stated that the results of the alcohol content test were not in evidence. However, we note that the results were in evidence in Carrier’s Exhibit No. 4 as pointed out in the carrier’s appeal.

To establish the claimant’s intoxication, the carrier relied upon a toxicology report dated May 20, 2002. The report noted that a blood alcohol analysis was performed on the claimant approximately 1½ hours after the accident and the results showed 0.051 alcohol concentration. The medical doctor who prepared the report using a dispositional metabolism of 0.02/hour extrapolated the results to determine the claimant had a blood alcohol concentration of 0.081 at the time of the accident. The doctor in the report further concluded that in reasonable medical probability the claimant was working under the influence of alcohol and was impaired at the time of the accident.

An employee is presumed sober at the time of an injury. Texas Workers’ Compensation Commission Appeal No. 94247, decided April 12, 1994. However, a carrier rebuts the presumption of sobriety if it presents “probative evidence” of intoxication. Texas Workers’ Compensation Commission Appeal No. 91018, decided September 19, 1991. March v. Victoria Lloyds Insurance Co., 773 S.W.2d 785 (Tex. App.-Fort Worth 1989, writ dism’d). Once the carrier has rebutted the presumption, the employee has the burden of proving he or she was not intoxicated at the time of the injury. Id.

The Appeals Panel has held that for the purpose of the 1989 Act, an alcohol concentration meeting the stated limit contained in Penal Code Section 49.01(2) is by definition intoxication, not merely a presumption, and there need be no further analysis of whether the claimant had the "normal use" of his faculties. Texas Workers’ Compensation Commission Appeal No. 91012, decided September 11, 1991; Texas Workers' Compensation Commission Appeal No. 972159, decided November 25, 1997 (Unpublished). A claimant would still remain free 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). Texas Workers Compensation Commission Appeal No. 011341, decided July 30, 2001.

The carrier argues that the hearing officer erred in reopening the record to introduce exhibits. The hearing officer notified the parties of his intentions in a letter and no opportunity was given for the parties to respond. We find no error in admitting Hearing Officer’s Exhibit No. 4 which was a copy of a prior Appeals Panel decision. The decision was cited by the carrier at the CCH and there is no error in looking to prior decisions for legal precedent. However, we note that it is inappropriate for the hearing officer to decide the case before him using expert evidence presented in an unrelated case.

The carrier further argues that the hearing officer committed reversible error by taking official notice of the TCA’s officially recognized range of metabolic rates of bodily disposition of alcohol per hour without telling the parties he intended to do so until after the CCH had been concluded and the record closed. Our standard of review regarding the hearing officer’s evidentiary matters is one of abuse of discretion. Texas Worker’s Compensation Commission Appeal No. 92165, decided June 5, 1992. To obtain a reversal of a judgment based upon the hearing officer’s abuse of discretion in admitting evidence, an appellant must first show that the admission was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. See Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). The hearing officer based his decision of the intoxication issue in part on the different metabolic rate he took official notice of.

In numerous cases we have pointed out that Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.2(11) (Rule 142.2(11)) provides that the hearing officer may "take official notice of the law of Texas and other jurisdictions, Texas city and county ordinances, the contents of the Texas Register, the rule of state agencies, facts that are judicially cognizable, and generally recognized facts within the [Texas Workers’ Compensation] Commission's specialized knowledge."

The document which the hearing officer took official notice of containing the metabolic rate is not dated and although it shows body weight as affecting the level of impairment based on the number of drinks, it contains only one metabolic rate to dissipate the effects of alcohol over time. The only source listed on the document is the TCA and the document refers to the outdated definition of the level of intoxication. We are uncertain that the TCA still exists as a state agency.

If a fact may be disputed by competent evidence, official notice may not be taken. Montgomery Ward & Co. v. Peaster, 178 S.W.2d 302 (Tex.Civ.App.-Eastland 1944). Nor may official notice be taken of facts that the court cannot know without resorting to expert testimony or other proof. Johnson v. Cooper, 379 S.W.2d 396 (Tex.Civ.App.-Fort Worth 1964). There was expert evidence in the record which contradicted the metabolic rate contained in the document the hearing officer took official notice of. We do not consider the metabolic rate to be either a judicially cognizable fact or the rule of state agencies or any other matter the hearing officer had authority to take official notice of. The hearing officer erred in basing his decision on expert evidence in an unrelated case and on the TCA document he took official notice of.

We reverse the hearing officer's decision and order and remand for the hearing officer to: (1) allow the parties an opportunity to respond to any additional evidence which may be added by the hearing officer; (2) not consider the metabolic rates put forth by the TCA; (3) not consider the toxicologist’s evidence regarding the dispositional metabolism of alcohol that is set forth in Appeal No. 002818, decided January 17, 2001; and (4) reconsider the issues in this case consistent with this decision.

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 Commission's Division of Hearings, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal response periods. See Texas Workers' Compensation Commission Appeal No. 92642, decided January 20, 1993.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RUSSELL R. OLIVER, PRESIDENT

221 WEST 6THSTREET

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Judy L. S. Barnes
Appeals Judge

Robert W. Potts
Appeals Judge