Drug 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 was held on February 15, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); and (2) the claimed injury occurred while the claimant was in a state of intoxication as defined by Section 401.013; therefore, the respondent (carrier) is relieved of liability for compensation.

The claimant appealed, disputing the ALJ’s determinations regarding compensability and intoxication. The carrier responded, urging affirmance of the disputed issues.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained damage or harm to the physical structure of his body while in the course and scope of his employment on (date of injury). The evidence indicates that the claimant was injured on (date of injury), while working as a shop manager, when a foam-filled Bobcat tire fell towards him. The claimant caught the tire and lifted it back and felt a pull in his right biceps. The claimant was later diagnosed with a right biceps muscle tear.

INTOXICATION

Section 406.032(1)(A) provides that the carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. Section 401.013(a)(2)(B) defines intoxication 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 Section 481.002, of the Health and Safety Code. Section 401.013(c), amended effective September 1, 2005, provides that “[o]n the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.”

In the present case, the evidence indicates that a urine drug screen was taken on (date of injury), which confirmed a positive result for marijuana. In his decision, the ALJ correctly stated that the evidence was sufficient to create a rebuttable presumption of intoxication under Section 401.013(c). In order to rebut the presumption, the claimant testified that he had the normal use of his physical and mental faculties and additionally provided statements from four co-workers to that effect. Regarding the statements in evidence, the ALJ stated in his decision that “[w]hile the witness statements presented some evidence that [the] [c]laimant had the normal use of his physical faculties, they could not support that [the] [c]laimant had the normal use of his mental faculties, as the witnesses did not seem to possess proper professional training to recognize the mental effects of intoxication.”

In Appeals Panel Decision (APD) 062507-s, decided January 31, 2007, the Appeals Panel held that an ALJ erred in failing to make a finding regarding a positive drug screen for amphetamines which resulted in a rebuttable presumption of intoxication for amphetamines, referencing Section 401.013(c). The Appeals Panel also noted that it disagreed with the carrier’s argument that under the 2005 amendment to Section 401.013(c), establishing a rebuttable presumption of intoxication based on a blood test or urinalysis, an injured worker’s lay testimony could not be considered sufficient to overcome the legal presumption of intoxication. See also APD 021667, decided August 6, 2002, in which the Appeals Panel stated they decline to reconsider the prior determination that lay testimony, including the testimony of the claimant, is probative evidence on the issue of whether the claimant had the normal use of his mental and physical faculties at the time of his injury.

The ALJ is requiring expert evidence with regard to whether the claimant had the normal use of his mental and physical faculties at the time of the claimed injury. Although the ALJ could accept or reject in whole, or in part, the claimant’s testimony or other evidence, the ALJ is requiring a higher standard than is required under the law, as cited in this decision, to rebut the presumption of intoxication. Accordingly, we reverse the ALJ’s determination that the claimed injury occurred while the claimant was in a state of intoxication as defined by Section 401.013; therefore, the carrier is relieved of liability for compensation, and we remand the issue of whether the claimed injury occurred while the claimant was in a state of intoxication as defined by Section 401.013, relieving the carrier of liability for compensation to the ALJ to make a determination consistent with this decision.

COMPENSABILITY

Given that we have reversed the ALJ’s intoxication determination and remanded that issue to the ALJ to make a determination applying the correct legal standard consistent with this decision, we also reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and we remand the issue of whether the claimant sustained a compensable injury on (date of injury), to the ALJ to make a determination consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the claimed injury occurred while the claimant was in a state of intoxication as defined by Section 401.013; therefore, the carrier is relieved of liability for compensation and we remand the issue of whether the claimed injury occurred while the claimant was in a state of intoxication as defined by Section 401.013, relieving the carrier of liability for compensation to the ALJ to make a determination consistent with this decision.

We reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and we remand the issue of whether the claimant sustained a compensable injury on (date of injury), to the ALJ to make a determination consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ should analyze the evidence in the record using the correct standard to determine whether the claimant met his burden of proof to rebut the presumption of intoxication and make a determination regarding whether the claimed injury occurred while the claimant was in a state of intoxication as defined by Section 401.013, relieving the carrier of compensation.

The ALJ is to make a determination regarding whether the claimant sustained a compensable injury on (date of injury), which is supported by the evidence and 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 ALJ, 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 Texas Department of Insurance, Division of Workers' Compensation, 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 and response periods. See APD 060721, decided June 12, 2006.

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
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
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 April 8, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) respondent 1 (claimant) sustained a compensable injury on (date of injury); and (2) the claimed injury did not occur while the claimant was in a state of intoxication as defined in Section 401.013, and the appellant (self-insured) is not relieved of liability for compensation. The self-insured appealed the ALJ’s determinations. The claimant responded, urging affirmance of the ALJ’s determinations. The appeal file does not contain a response from respondent 2 (subclaimant) to the self-insured’s appeal.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained damage or harm to the physical structure of his body while in the course and scope of his employment on (date of injury). The claimant testified that he was injured on (date of injury), when the water truck he was driving rolled over. In evidence are medical records from the hospital dated (date of injury), which establish a urinalysis was performed on the date of injury and that the claimant tested positive for cannabinoids. Also in evidence is a peer review report dated February 26, 2021, from (Dr. R), a medical toxicologist, that discusses her review of the hospital records dated (date of injury), through September 2, 2020. In her report Dr. R stated “[a] urine drug screen collected at 11:28 on [(date of injury)] showed a positive for cannabis.” Dr. R goes on to state the claimant “had a positive urine for marijuana,” and a “[f]alse positive is not likely here and likely represents the patient’s history of use every other day.”

In the case on appeal, the ALJ in his discussion notes that the hospital records “reflect an entry of, ‘U Cannab Scr: Positive’ under ‘Laboratory or other results’ at 11:28 AM on (date of injury).” The ALJ also noted a urine drug screen was ordered on (date of injury), and that a federal drug testing custody and control form in evidence shows that a specimen was collected for testing including tetrahydrocannabinol on (date of injury), at 11:30 a.m. The ALJ pointed out that a section of the form containing a space for a verification of results of negative, positive, or refusal to test was blank. The ALJ stated that he viewed this blank space as “some evidence” that no drug test was completed, and “[w]hen combined with the absence in evidence of the drug screen report and results from the lab, there is little persuasive evidence of the alleged drug screen or its results.” The ALJ found that the evidence does not establish the claimant voluntarily introduced into the body any substance listed under Subsection (a)(2)(B), based on a blood test or a urinalysis. The ALJ also found that the evidence does not establish that the claimant tested positive for marijuana based on a urinalysis test on (date of injury).

In APD 171115, decided July 10, 2017, medical records in evidence reflected a urinalysis was performed on the date of injury and that the claimant tested positive for cannabinoids. The records also reflected the results were only preliminary analytical test results and that a more specific chemical method must be used to obtain a confirmed analytical result. Also in evidence was a separate urinalysis from another medical facility reflecting the claimant tested positive for cannabinoids. The ALJ stated the initial drug screen performed on the date of injury provided insufficient testing information, and found the evidence concerning drug testing was not persuasive to create a rebuttable presumption that the claimant was intoxicated and did not have the normal use of his mental or physical faculties at the time of the injury. The Appeals Panel stated Section 401.013(c) refers to a positive drug test based on a blood test or urinalysis “but does not specify any other requirements to establish a rebuttable presumption of intoxication.” The Appeals Panel held the ALJ’s failure to apply a rebuttable presumption was legal error, and remanded the intoxication issue to the ALJ to apply the correct legal standard.

The evidence in the case on appeal, which includes records from the hospital showing the claimant tested positive for marijuana on the date of injury, and Dr. R’s peer review report discussing those hospital records, reflect the claimant tested positive for cannabinoids based on a urinalysis performed on the date of injury. The ALJ’s failure to apply a rebuttable presumption to the facts of this case is legal error. Therefore, we reverse the ALJ’s determination that the claimed injury did not occur while the claimant was in a state of intoxication, as defined in Section 401.013, and the self-insured is not relieved from liability for compensation. We remand the intoxication issue to the ALJ for him to apply the correct legal standard as set out in Section 401.013 by applying the presumption of intoxication under Section 401.013(c) based on the positive urinalysis for cannabinoids in evidence.

COMPENSABLE INJURY

Since the intoxication issue has been reversed and remanded for the ALJ to apply the correct legal standard, the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), is also reversed and remanded for a decision consistent with the ALJ’s determination on the intoxication issue on remand.

SUMMARY

We reverse the ALJ’s determination that the claimed injury did not occur while the claimant was in a state of intoxication, as defined in Section 401.013, and the self-insured is not relieved from liability for compensation. We remand the intoxication issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), and we remand the issue of compensability to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ shall consider all the evidence and make findings of fact and conclusions of law regarding the intoxication and compensable injury issues consistent with this decision and the statute discussed therein.

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 ALJ, 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 Texas Department of Insurance, Division of Workers’ Compensation, 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 and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is (a certified self-insured) and the name and address of its registered agent for service of process is

NAME
ADDRESS
CITY, TX ZIP CODE.

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 (CCH) was held on October 10, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant/cross-respondent (carrier) specifically contested compensability of the claimed injury pursuant to Section 409.022 and 28 TEX. ADMIN. CODE § 124.2(f) (Rule 124.2(f)); (2) respondent/cross-appellant (claimant) sustained a compensable injury on (date of injury); (3) the claimant was not in a state of intoxication, as defined in Section 401.013, therefore, the carrier remains liable for compensation; (4) the claimant had disability resulting from the compensable injury of (date of injury), from May 15 through June 7, 2019; and (5) the claimant did not have disability resulting from the compensable injury of (date of injury), from June 8, 2019, to the date of the CCH.

The carrier appealed the ALJ’s determinations that the claimant was not in a state of intoxication; that the claimant sustained a compensable injury; and that the claimant had disability resulting from the compensable injury from May 15 through June 7, 2019. The appeal file does not contain a response from the claimant to the carrier’s appeal. The claimant cross-appealed, disputing that portion of the ALJ’s disability determination that the claimant did not have disability from June 8, 2019, to the date of the CCH. The carrier responded to the claimant’s cross-appeal, urging affirmance that the claimant did not have disability from June 8, 2019, to the date of the CCH.

The ALJ’s determination that the carrier specifically contested compensability of the claimed injury pursuant to Section 409.022 and Rule 124.2(f) was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The claimant testified that he was injured when he fell from scaffolding on (date of injury). The claimant first sought medical treatment on May 17, 2019. The evidence indicates that a hair specimen was collected from the claimant on May 17, 2019, and a report dated May 23, 2019, reflects that the specimen tested positive for cocaine. We note that in the decision and order the ALJ inadvertently listed the carrier exhibits admitted as A and F rather than A through F.

The ALJ 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. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, 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).

INTOXICATION

Section 406.032(1)(A) provides that the carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. Section 401.013(a)(2)(B) defines intoxication 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 Section 481.002 of the Health and Safety Code. Section 401.013(c) provides that “[o]n the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.”

As previously mentioned, the claimant underwent a post-injury hair specimen test that tested positive for cocaine. The ALJ states the following in the Discussion section of the decision and order:

An injured employee is presumed to be sober at the time of injury. However, [the] [c]laimant underwent a hair sample drug test on May 17, 2019, and tested positive for cocaine. Under [Section] 401.013(c), this positive drug test creates a rebuttable presumption that [the] [c]laimant was intoxicated and did not have the normal use of his mental or physical faculties at the time of his alleged injury.

Section 401.013(c) does not say that any drug test creates the rebuttable presumption of intoxication. Rather, that section specifically only refers to a blood test or urinalysis to create the rebuttable presumption that a person is intoxicated and does not have the normal use of his or her mental or physical faculties. We hold that testing of a hair sample, 3 days after the accident, may be sufficient to raise the question of intoxication under Section 401.013(a)(2), but does not create a rebuttable presumption of intoxication under Section 401.013(c). The ALJ, by stating the positive hair sample drug test created a rebuttable presumption that the claimant was intoxicated, applied the wrong standard to determine whether the claimant was in a state of intoxication at the time of the claimed injury. This constituted legal error. Therefore, we reverse the ALJ’s determination that the claimed injury occurred while the claimant was not in a state of intoxication as defined in Section 401.013. We remand the intoxication issue to the ALJ for her to apply the correct standard as set out in Section 401.013 without applying the presumption of intoxication under Section 401.013(c). See Appeals Panel Decision (APD) 121062, decided August 6, 2012.

COMPENSABLE INJURY AND DISABILITY

Since the intoxication issue has been reversed and remanded for the ALJ to apply the correct legal standard, the ALJ’s determinations that the claimant sustained a compensable injury on (date of injury), the claimant had disability resulting from the compensable injury from May 15 through June 7, 2019, but not from June 8, 2019, to the date of the CCH, are also reversed and remanded for a decision consisted with the ALJ’s determination on the intoxication issue on remand.

On remand, the ALJ shall consider all the evidence, make findings of fact and conclusions of law regarding the intoxication, compensable injury, and disability issues consistent with this decision and the statute discussed herein.

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 ALJ, 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 Texas Department of Insurance, Division of Workers’ Compensation, 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 and response periods. See APD 060721, decided June 12, 2006.

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
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
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 June 25, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) sustained a compensable injury on (date of injury); (2) the appellant (carrier) is not relieved of liability for compensation because the claimant was not in a state of intoxication, as defined by Section 401.013, when the claimed injury occurred; and (3) the claimant had disability resulting from the compensable injury of (date of injury), from (date), and continuing through the date of the CCH.

The carrier appealed disputing the ALJ’s determinations. The carrier contends that the ALJ misstated the evidence in her decision. The claimant responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded.

The claimant testified that on (date of injury), while painting a roof awning, he lost his balance and fell approximately 15 feet to the ground. The claimant was transported to the hospital by ambulance and he underwent surgery to his right lung. The claimant testified that he sustained injuries to the right side of his body, including multiple rib fractures. The evidence reflects that a urinalysis was performed at the hospital on (date), and that the claimant tested positive for methamphetamines and opiates. Subsequently, the claimant on his own had hair testing performed by another lab facility. The evidence indicates that a hair specimen was collected from the claimant on (date) and a report dated (date) reflects that the specimen tested negative for methamphetamines and opiates.

The parties stipulated, in part, that on (date of injury), the employer provided worker’s compensation insurance with (Carrier Name A). We note that the ALJ listed (Carrier Name A) as the true corporate name of the insurance carrier. However, the carrier information sheet in evidence lists the carrier’s true corporate name as (Carrier Name B) explaining that (Carrier Name A) comes under the (Carrier Name B) umbrella.

The ALJ 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. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, 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).

INTOXICATION

Section 406.032(1)(A) provides that the carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. Section 401.013(a)(2)(B) defines intoxication 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 Section 481.002 of the Health and Safety Code. Section 401.013(c), amended effective September 1, 2005, provides that “[o]n the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.”

As previously mentioned, the claimant underwent a post-injury urinalysis that tested positive for methamphetamines and opiates and the claimant later had hair testing performed that tested negative for those substances. The evidence reflects that (Dr. K), a toxicologist, performed a review of records in the case at the carrier’s request and provided a report, which is dated (date). In her discussion of the evidence, which included Dr. K’s toxicologist report, the ALJ specifically states that “[Dr. K’s] report does not accurately document the measurement unit used in [the] [c]laimant’s hair drug test.” The carrier appeals and contends that “[Dr. K] never reviewed the hair drug test since it was completely immaterial” and that the ALJ misstates the facts of this case.

The ALJ states the following in the Discussion section of the decision and order:

The hair drug test results state that the screening cutoff for methamphetamines is 500 [ng/ML]. At [the] [c]arrier’s request, toxicologist, [Dr. K], reviewed [the] [c]laimant’s medical records and opined that [the] [c]laimant’s methamphetamine level of 500 ng/ML or greater established that [the] [c]laimant was intoxicated at the time of the accident. However, [Dr. K’s] report does not accurately document the measurement unit used in [the] [c]laimant’s hair drug test.

Review of Dr. K’s toxicologist report dated (date) references the claimant’s urinalysis performed on (date), but does not reference the claimant’s hair drug test performed in January 2018. The ALJ’s statement that Dr. K does not accurately document the measurement unit used in the claimant’s hair drug test is a misstatement of the evidence in this case, which we view as a material misstatement of fact. Accordingly, we must reverse the ALJ’s intoxication determination and remand the issue of intoxication to the ALJ for further action consistent with this decision.

COMPENSABLE INJURY AND DISABILITY

Since the intoxication issue has been reversed and remanded to the ALJ, the ALJ’s determinations that the claimant sustained a compensable injury on (date of injury), and that the claimant had disability resulting from the compensable injury of (date of injury), from (date), and continuing through the date of the CCH are also reversed and remanded for a decision consistent with the ALJ’s determination on the intoxication issue on remand.

SUMMARY

We reverse the ALJ’s determination that the carrier is not relieved of liability for compensation because the claimant was not in a state of intoxication, as defined in Section 401.013, when the claimed injury occurred, and we remand the intoxication issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), and we remand the issue of compensability to the ALJ.

We reverse the ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), from (date), and continuing through the date of the CCH and we remand the disability issue to the ALJ.

REMAND INSTRUCTIONS

On remand the ALJ is to correct her misstatement of the evidence and shall consider all the evidence, make findings of fact and conclusions of law regarding the intoxication, compensable injury and disability issues 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 ALJ, 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 Texas Department of Insurance, Division of Workers’ Compensation, 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 and response periods. See Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is CHARTER OAK FIRE INSURANCE COMPANY, A MEMBER OF THE TRAVELERS INDEMNITY COMPANIES and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

d/b/a CSC-LAWYERS INCORPORATING SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
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 (CCH) was held on June 11, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) sustained a compensable injury on (date of injury); (2) the compensable injury did not occur while the claimant was in a state of intoxication as defined in Section 401.013, from the introduction of a controlled substance or substance analogue as defined by Section 481.002 of the Health & Safety Code, so the appellant (carrier) is not relieved of liability for compensation on the ground of the claimant’s intoxication; and (3) the claimant did have disability resulting from a compensable injury sustained on (date of injury), from (date), to the date of the CCH. The carrier appealed, disputing all of the ALJ’s determinations. The claimant responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and rendered.

The claimant testified he passed out while driving to make a delivery which resulted in a motor vehicle accident. The claimant was immediately taken to the hospital, and medical records in evidence from that facility reflect that a urine sample taken on the date of injury tested positive for barbiturates.

The ALJ 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. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, 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).

INTOXICATION

Section 406.032(1)(A) provides that the carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. Section 401.013(a)(2)(B) defines intoxication 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 Section 481.002 of the Health and Safety Code. Section 401.013(c), amended effective September 1, 2005, provides that “[o]n the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.”

As noted above, the evidence in this case established the claimant’s urine tested positive for barbiturates on the date of injury. The claimant testified that on the date of injury he had only taken his prescribed blood pressure and anti-anxiety medications. The claimant also testified that he had not taken barbiturates prior to his injury and was not under the influence of barbiturates on the date of injury. The claimant offered no testimony or other evidence that he had the normal use of his mental or physical faculties at the time of the injury.

The ALJ correctly noted the evidence established a rebuttable presumption that the claimant was intoxicated and that he did not have the normal use of his mental or physical faculties at the time of the injury. However, the ALJ stated in his discussion that the claimant credibly testified that he had not taken barbiturates prior to his injury and was not under the influence of barbiturates on the date of injury, and, therefore, the preponderance of the evidence supports that the claimant had the normal use of his mental or physical faculties at the time of the injury.

In Appeals Panel Decision 062507-s, decided January 31, 2007, the Appeals Panel noted that it disagreed with the carrier’s argument that under the 2005 amendment to Section 401.013(c), establishing a rebuttable presumption of intoxication based on a blood test or urinalysis, an injured employee’s lay testimony could not be considered sufficient to overcome the legal presumption of intoxication. However, under the facts of that case, the claimant’s one line statement that he was not intoxicated did not overcome the rebuttable presumption of intoxication established by the positive drug screen.

Although the claimant in the case on appeal testified that he did not take barbiturates prior to his injury and that he was not under the influence of barbiturates on the date of injury, it is undisputed that the claimant’s urine tested positive for barbiturates on the date of injury. No evidence was presented that the claimant had the normal use of his mental or physical faculties at the time of the claimed injury. The ALJ’s determination that the claimant was not in a state of intoxication at the time of the claimed injury is against the great weight and preponderance of the evidence. Accordingly, we reverse the ALJ’s determination that the compensable injury did not occur while the claimant was in a state of intoxication as defined in Section 401.013, from the introduction of a controlled substance or substance analogue as defined by Section 481.002 of the Health & Safety Code, so the carrier is not relieved of liability for compensation on the ground of the claimant’s intoxication. We render a new decision that the claimed injury did occur while the claimant was in a state of intoxication as defined in Section 401.013, from the introduction of a controlled substance or substance analogue as defined by Section 481.002 of the Health & Safety Code, so the carrier is relieved of liability for compensation on the ground of the claimant’s intoxication.

COMPENSABLE INJURY AND DISABILITY

We have reversed the ALJ’s intoxication determination and rendered a new decision that the claimed injury did occur while the claimant was in a state of intoxication as defined in Section 401.013, from the introduction of a controlled substance or substance analogue as defined by Section 481.002 of the Health & Safety Code, so the carrier is relieved of liability for compensation on the ground of the claimant’s intoxication. Consequently, we reverse the ALJ’s determinations that the claimant sustained a compensable injury on (date of injury), and that the claimant had disability resulting from a compensable injury sustained on (date of injury), from (date), to the date of the CCH. We render a new decision that the claimant did not sustain a compensable injury on (date of injury), and that the claimant did not sustain disability from (date), to the date of the CCH.

SUMMARY

We reverse the ALJ’s determination that the compensable injury did not occur while the claimant was in a state of intoxication as defined in Section 401.013, from the introduction of a controlled substance or substance analogue as defined by Section 481.002 of the Health & Safety Code, so the carrier is not relieved of liability for compensation on the ground of the claimant’s intoxication, and we render a new decision that the claimed injury did occur while the claimant was in a state of intoxication as defined in Section 401.013, from the introduction of a controlled substance or substance analogue as defined by Section 481.002 of the Health & Safety Code, so the carrier is relieved of liability for compensation on the ground of the claimant’s intoxication.

We reverse the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), and we render a new decision that the claimant did not sustain a compensable injury on (date of injury).

We reverse the ALJ’s determination that the claimant had disability resulting from a compensable injury sustained on (date of injury), from (date), to the date of the CCH, and we render a new decision that the claimant did not sustain disability from (date), to the date of the CCH.

The true corporate name of the insurance carrier is NATIONAL CASUALTY COMPANY 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:

Veronica L. Ruberto
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 (CCH) was held on April 3, 2017, with the record closing on April 21, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) sustained a compensable injury on (date of injury); (2) the claimed injury did not occur while the claimant was in a state of intoxication, thereby not relieving the appellant (carrier) from liability for compensation; and (3) the claimant had disability resulting from the compensable injury of (date of injury), beginning on May 27, 2016, and continuing through the date of the CCH.

The carrier appealed, arguing that the hearing officer’s determinations that: the claimant had a compensable injury; the injury did not occur while the claimant was in a state of intoxication; and the claimant had disability beginning on May 27, 2016, and continuing through the date of the CCH are in error. The carrier contends that the hearing officer failed to apply the statutory presumption of intoxication to the facts of the case. Additionally, the carrier contends that the claimant did not produce evidence that he had the normal use of his mental or physical faculties at the time of the injury and that the evidence did not support the hearing officer’s determination that the claimant had disability. The claimant responded, maintaining that the hearing officer’s determinations are supported by sufficient evidence and should be affirmed.

DECISION

Reversed and remanded.

The claimant testified that he was injured on (date of injury), when he fell approximately 12 feet from scaffolding while working to set up a stage. The claimant was transported by ambulance to the hospital. Medical records in evidence reflect that a urinalysis was performed on the date of injury and that the claimant tested positive for cannabinoids. The records reflect that the results are only preliminary analytical test results and that a more specific alternate chemical method must be used in order to obtain a confirmed analytical result. Additionally, in evidence is a urinalysis performed on June 2, 2016, from another medical facility which reflected that the claimant testified positive for cannabinoids.

INTOXICATION

In Appeals Panel Decision (APD) 062507-s, decided January 31, 2007, the Appeals Panel held that a hearing officer erred in failing to make a finding regarding a positive drug screen for amphetamines which resulted in a rebuttable presumption of intoxication for amphetamines, referencing Section 401.013(c). The Appeals Panel also noted that it disagreed with the carrier’s argument that under the 2005 amendment to Section 401.013(c), establishing a rebuttable presumption of intoxication based on a blood test or urinalysis, an injured worker’s lay testimony could not be considered sufficient to overcome the legal presumption of intoxication.

In the instant case, the hearing officer in her discussion of the evidence, referenced the June 2, 2016, urinalysis and stated that the claimant’s urine specimen was tested for cannabinoids and other controlled substances and the claimant tested negative for all controlled substances. However, the June 2, 2016, urinalysis shows a positive result for cannabinoids. The hearing officer additionally stated, in part, that the initial drug screen performed on the date of the injury provided insufficient testing information. The hearing officer found that the evidence concerning drug testing was not persuasive to create a rebuttable presumption that the claimant was intoxicated and did not have the normal use of his mental or physical faculties at the time of the injury event of (date of injury).

Section 401.013(c) refers to a positive drug test based on a blood test or urinalysis but does not specify any other requirements to establish a rebuttable presumption of intoxication. In evidence are two drug tests based on a urinalysis which reflect the claimant tested positive for marijuana. The hearing officer’s failure to apply a rebuttable presumption to the facts of this case is legal error. Therefore, we reverse the hearing officer’s determination that the claimed injury did not occur while the claimant was in a state of intoxication as defined in Section 401.013. We remand the intoxication issue back to the hearing officer for her to apply the correct standard as set out in Section 401.013 by applying the presumption of intoxication under Section 401.013(c) based on the positive urinalysis for cannabinoids/marijuana in evidence.

COMPENSABLE INJURY AND DISABILITY

Since the intoxication issue has been reversed and remanded for the hearing officer to apply the correct legal standard, the hearing officer’s determinations that the claimant sustained a compensable injury on (date of injury), and that the claimant had disability resulting from the compensable injury of (date of injury), beginning on May 27, 2016, and continuing through the date of the CCH are also reversed and remanded for a decision consistent with the hearing officer’s determination on the intoxication issue on remand.

SUMMARY

We reverse the hearing officer’s determination that the claimant sustained a compensable injury on (date of injury), and remand the issue of compensability to the hearing officer.

We reverse the hearing officer’s determination that the claimant had disability resulting from the compensable injury of (date of injury), beginning on May 27, 2016, and continuing through the date of the CCH and remand the disability issue to the hearing officer.

We reverse the hearing officer’s determination that the claimed injury did not occur while the claimant was in a state of intoxication, thereby not relieving the carrier from liability for compensation and remand the intoxication issue to the hearing officer.

REMAND INSTRUCTIONS

On remand, the hearing officer shall consider all the evidence, make findings of fact and conclusions of law regarding the intoxication, injury and disability issues consistent with this decision and the statute discussed therein.

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 Texas Department of Insurance, Division of Workers’ Compensation, 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 and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is NEW YORK MARINE AND GENERAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7THSTREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
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 was held on March 2, 2017, in (city), 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 injury did occur while the claimant was in a state of intoxication, as defined in Section 401.013; therefore, the respondent (carrier) is relieved of liability for compensation; and (3) because the claimant did not sustain a compensable injury, the claimant does not have disability from November 2, 2016, through February 5, 2017.

The claimant appealed, disputing the hearing officer’s determinations of compensable injury, disability, and intoxication. The claimant argues on appeal that he had normal use of his physical and mental faculties. The carrier responded, urging affirmance of the disputed determinations.

DECISION

Reversed and remanded.

The claimant testified he injured his left hand when it was struck by a large block of cement when he was cleaning out a mixer using a jackhammer. A post-accident urine sample was taken from the claimant and a drug test was performed and showed the claimant tested positive for cocaine and MDMA.

Section 406.032(1)(A) provides that the carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. Section 401.013(a)(2)(B) defines intoxication 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 Section 481.002, of the Health and Safety Code. Section 401.013(c), amended effective September 1, 2005, provides that the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, raises a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.

In evidence is a report of the drug test performed on the claimant’s urine sample which shows positive for MDMA and cocaine metabolite. The same report shows that the claimant testified negative for marijuana metabolites. The hearing officer both in her discussion and in Finding of Fact No. 4 states a urine sample was taken of the claimant which tested positive for marijuana. In reviewing a “great weight” challenge, we must examine the entire record to determine if: (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence. See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). The hearing officer’s Finding of Fact No. 4 as it pertains to the claimant testing positive for marijuana is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the hearing officer’s determinations that the claimant did not sustain a compensable injury on (date of injury), and that the injury did occur while the claimant was in a state of intoxication. Because we have reversed and remanded the compensable injury and intoxication determinations, we likewise reverse and remand the hearing officer’s determination that the claimant did not have disability from November 2, 2016, through February 5, 2017.

SUMMARY

We reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and we remand the issue of whether the claimant sustained a compensable injury on (date of injury), to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determination that the carrier is relieved of liability for compensation because the claimant was in a state of intoxication at the time of the claimed injury, and we remand the issue of whether 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 to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s decision that because the claimant did not sustain a compensable injury, the claimant does not have disability from November 2, 2016, through February 5, 2017, and we remand the issue of disability from November 2, 2016, through February 5, 2017, to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to address the issue of whether the claimed injury occurred while the claimant was in a state of intoxication in light of the evidence showing that the claimant’s post-accident urine sample tested positive for MDMA and cocaine metabolite rather than MDMA and marijuana metabolites. The hearing officer shall consider all of the evidence, make findings of fact, and render conclusions of law regarding intoxication, compensability, and disability consistent with this decision.

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. RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
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 February 29, 2016, reopened and held open until April 1, 2016, in Tyler, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the claimed injury did not occur while respondent 1 (claimant) was in a state of intoxication, as defined in Section 401.013, from the introduction of a controlled substance, so that the appellant (carrier) is not relieved of liability for compensation; and (2) the claimant had disability beginning on November 11, 2014, and continuing through the date of the CCH.

The carrier appealed both of the hearing officer’s determinations, contending that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The carrier also contends that the hearing officer abused his discretion when he unilaterally reopened the record after the CCH to obtain and admit evidence regarding disability that was neither exchanged nor offered by either party. The claimant responded, urging affirmance of the hearing officer’s determinations. The appeal file does not contain a response from respondent 2 (subclaimant).

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated in part that on (date of injury), the claimant sustained an injury of a right hand laceration. The claimant testified his right hand was caught under the rotor on a conveyor belt he was cleaning.

COMPENSABLE INJURY

The hearing officer’s determination that the claimed injury did not occur while the claimant was in a state of intoxication, as defined in Section 401.013, from the introduction of a controlled substance, so that the carrier is not relieved of liability for compensation, is supported by sufficient evidence and is affirmed.

EVIDENCE ADMITTED

The carrier contends that the hearing officer improperly and unilaterally reopened the record to obtain and admit evidence regarding disability that had not been exchanged with the carrier.

To obtain a reversal of a judgment based on the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show the admission or exclusion 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. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles. Appeals Panel Decision (APD) 043000, decided January 12, 2005; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).

In evidence is Hearing Officer’s Exhibit 9, which is a letter dated March 16, 2016, from the hearing officer to the claimant, the claimant’s ombudsman, and the carrier’s attorney. The letter states the following:

As the [h]earing [o]fficer, it is my obligation and duty to fully develop the record. After reviewing the exhibits in this case, it was clear that I had no evidence on which to base a determination of disability. Based on the testimony, the claimant continued to treat with [Dr. W] until July, 2016,^[1] but there was no information on what the claimant’s work status was from [Dr. W] or why the appointments with [Dr. W] ended in July, 2016.

Consequently, I asked the ombudsman assisting the claimant to obtain whatever records of [Dr. W’s] she was able to get. I have re-opened the record, and those records, which are attached, will be admitted as Hearing Officer Exhibits 3-6.

I will accept written responses and comments in regard to the attached documents through 5:00 pm on Friday, April 1, 2016. I will close the record at that time and prepare my written decision.

The records received and admitted by the hearing officer as Hearing Officer Exhibits 5 and 6 after the CCH consist of office notes and Work Status Reports (DWC-73) from Dr. W dated November 18, 2014, and January 13, 2015, which state the claimant cannot return to work from November 18, 2014, through March 1, 2015. Although not listed as hearing officer exhibits in his March 16, 2016, letter, the hearing officer’s exhibits also contain Hearing Officer Exhibits 7 and 8, which are office notes from Dr. W dated May 22, 2015, and July 27, 2015. A review of the record reveals that neither party sought the admittance of these records; instead, the hearing officer unilaterally reopened the record to direct the ombudsman to provide him with medical records from Dr. W, and upon his receipt of those documents admitted them into evidence.

The hearing officer has a statutory responsibility to “ensure the preservation of the rights of the parties and the full development of facts required for the determination to be made.” Section 410.163(b). Hearing officers are also specifically authorized to “request additional evidence” from the parties pursuant to 28 TEX. ADMIN. CODE § 142.2(10) (Rule 142.2(10)). These important responsibilities must be exercised in light of and balanced with the fundamental requirement that both sides receive a fair and objective hearing. The hearing officer is the neutral fact finder and, as such, cannot serve or appear to serve as an advocate. While the hearing officer has a responsibility to develop facts necessary for an informed decision, this must be done in a manner and procedure that is outcome neutral and protects the procedural and substantive rights of the parties. See APD 992056, decided November 1, 1999, and APD 92272, decided August 6, 1992, for further explanation.

In applying these considerations to the present case, we note that the hearing officer made two separate requests for additional information relating to the claimant’s status, and that the second request occurred 16 days after the hearing had concluded and the record closed—hence disrupting the orderly presentation of evidence and the timely resolution of the dispute. Additionally, the second request to the ombudsman for “whatever records of [Dr. W’s] she was able to get” was inappropriately broad and unfocused, compounded by the fact that the hearing officer did not notify the insurance carrier until after the records were received and admitted into evidence.

In order to maintain a neutral forum, a hearing officer’s decision to reopen the record should typically be to clarify other evidence offered by a party—or, at least, other evidence should point to the missing evidence as key to a well-informed resolution of the dispute. Instead, the hearing officer’s open ended and untimely request was essentially a “fishing expedition” for more evidence largely unconnected to the evidence offered by the parties. Under these circumstances, we hold that the hearing officer’s second request for additional records was procedurally unfair to the carrier and constituted an abuse of discretion. Accordingly, we will not consider any of these records that were erroneously admitted by the hearing officer after the CCH.

The claimant testified at the CCH that he continued to treat with Dr. W, and that Dr. W told the claimant he could not immediately return to work. The claimant also testified that he stopped seeing Dr. W because the carrier had denied the claim, and the claimant was not sure if he could return to work because he has not talked to a doctor. As noted above, the hearing officer stated in his March 16, 2016, letter that he “had no evidence on which to base a determination of disability.” In light of the hearing officer’s request for evidence on the issue of disability, he was not persuaded by the claimant’s testimony or the records in evidence to establish a period of disability. The hearing officer relied upon the documentation he requested and obtained from the ombudsman after the CCH. Because that documentation was erroneously admitted by the hearing officer and cannot be used to support his determination, we reverse the hearing officer’s determination that the claimant had disability beginning on November 11, 2014, and continuing through the date of the CCH, and we render a new decision that the claimant did not have disability beginning on November 11, 2014, and continuing through the date of the CCH.

SUMMARY

We affirm the hearing officer’s determination that the claimed injury did not occur while the claimant was in a state of intoxication, as defined in Section 401.013, from the introduction of a controlled substance, so that the carrier is not relieved of liability for compensation.

We reverse the hearing officer’s determination that the claimant had disability beginning on November 11, 2014, and continuing through the date of the CCH, and we render a new decision that the claimant did not have disability beginning on November 11, 2014, and continuing through the date of the CCH.

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 GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

We note that the hearing officer’s reference to July 2016 contains a typographical error.

↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). Contested case hearings (CCH) were held on March 23, 2015, and August 4, 2015, in Fort Worth, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) sustained a compensable injury on (date of injury); (2) the claimant has had disability beginning on October 31, 2014, and continuing through the August 4, 2015, CCH; and (3) the appellant (carrier) is not relieved of liability for compensation because the claimant was not in a state of intoxication at the time of the claimed injury.

The carrier appealed the hearing officer’s determinations, contending that the hearing officer’s recitation of the evidence in his decision is so inaccurate that it rises to the level of legal and factual reversible error. The claimant responded, urging affirmance of the hearing officer’s determinations.

DECISION

Reversed and remanded.

The claimant testified that he injured his left hip when he fell off the end of a loading dock while sweeping.

The hearing officer noted the following in the Discussion portion of his decision:

The evidence reflected that Claimant’s supervisor, [Mr. M] transported Claimant to John Peter Smith Hospital [JPSH] to receive medical attention. Claimant testified that he defecated on himself before he arrived at the hospital, whereas [Mr. M], testified that he never smelled any odor that he could attribute to Claimant’s defecating in his pants on the way to the hospital. Carrier pointed out that the hospital records did not document that Claimant had defecated in his pants during the time he was examined. Carrier maintained that Claimant’s testimony about defecating in his pants on the way to the hospital was an excuse for his alleged refusal to be drug screened at the hospital. The evidence, however, indicated that toxicology tests, including drug screens, were done at the hospital with Claimant’s consent, and the results were described in Claimant’s exhibits.

However, it was undisputed by the parties that on (date of injury), Mr. M took the claimant to a clinic, Occupational Health Solutions (OHS), and not to JPSH. In evidence is a medical record from OHS dated (date of injury), noting that the claimant refused to do the drug test, got up from his wheelchair, said he was fine, and was not being cooperative. It was undisputed that the claimant refused to take a drug test at OHS on (date of injury). It was also undisputed that Mr. M never took the claimant to JPSH. The claimant testified, and it was undisputed, that due to the pain in his left hip the claimant went to JPSH on October 31, 2014, and that he submitted to a drug test at the hospital on that date.

The hearing officer erred regarding material facts; that is, the claimant’s testimony and undisputed evidence that Mr. M took the claimant to OHS on (date of injury), where he refused to take a drug test, and that the claimant went to JPSH on October 31, 2014, and took a drug test. Because of this misstatement of material facts of evidence, we reverse the hearing officer’s determinations that the claimant sustained a compensable injury on (date of injury), and that the carrier is not relieved of liability for compensation because the claimant was not in a state of intoxication at the time of the claimed injury, and we remand those issues to the hearing officer for further action consistent with this decision.

We note that the hearing officer failed to make a conclusion of law regarding whether the claimed injury occurred while the claimant was in a state of intoxication as defined in Section 401.013, from the introduction of a controlled substance or substance analogue as defined by Section 481.002 of the Health and Safety Code, thereby relieving the carrier of liability for compensation. We reverse the hearing officer’s decision as incomplete because he did not make a conclusion of law on the issue of intoxication, and we remand the case to the hearing officer to make an appropriate conclusion of law regarding this issue.

Because we have reversed and remanded the issue of whether the claimant sustained a compensable injury on (date of injury), we also reverse the hearing officer’s determination that the claimant had disability beginning on October 31, 2014, and continuing through the August 4, 2015, CCH, and we remand the issue of disability to the hearing officer for further action consistent with this decision.

SUMMARY

We reverse the hearing officer’s determination that the claimant sustained a compensable injury on (date of injury), and we remand the issue of whether the claimant sustained a compensable injury on (date of injury), to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determination that the carrier is not relieved of liability for compensation because the claimant was not in a state of intoxication at the time of the claimed injury, and we remand the issue of whether the claimed injury occurred while the claimant was in a state of intoxication as defined in Section 401.013, from the introduction of a controlled substance or substance analogue as defined by Section 481.002 of the Health and Safety Code, thereby relieving the carrier of liability for compensation to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s decision as incomplete because he did not make a conclusion of law on the issue of intoxication, and we remand the case to the hearing officer to make an appropriate conclusion of law regarding the issue of whether the claimed injury occurred while the claimant was in a state of intoxication as defined in Section 401.013, from the introduction of a controlled substance or substance analogue as defined by Section 481.002 of the Health and Safety Code, thereby relieving the carrier of liability for compensation.

We reverse the hearing officer’s determination that the claimant had disability beginning on October 31, 2014, and continuing through the August 4, 2015, CCH, and we remand the issue of disability from October 31, 2014, to August 4, 2015, to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to correct his misstatement of material facts in evidence regarding the claimant’s testimony and undisputed evidence that on (date of injury), Mr. M took the claimant to OHS, where he refused to take a drug test, and that the claimant took the drug test on October 31, 2014, at JPSH. The hearing officer shall consider all of the evidence, make findings of fact, and render conclusions of law regarding intoxication, compensability, and disability consistent with this decision. The hearing officer is not to consider additional evidence on remand.

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

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
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 (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