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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 (CCH) was held on May 10, 2021, and May 11, 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) the appellant (claimant) did not sustain a compensable injury on (date of injury); and (2) the claimant did not have disability as a result of the claimed injury of (date of injury), from July 24, 2020, through the date of the CCH. The claimant appealed, disputing the ALJ’s determinations of compensability and disability. The respondent (carrier) responded, urging affirmance of the disputed determinations.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record at the CCH. There is a partial audio recording in the appeal file. The parties began the hearing on May 10, 2021, but did not take testimony because of problems with the audio connection. The CCH was reconvened the following day, May 11, 2021. The appeal file contains recordings from both May 10, 2021, and May 11, 2021. The recordings include the admission of exhibits, the stipulations of the parties, the opening arguments of the parties, and the direct and cross-examination of the claimant. We note that on the record the ALJ stated that carrier’s exhibits A-I were admitted. However, the decision and order reflects that carrier’s exhibits A-H were admitted and the record contains carrier’s exhibits A-H. The ALJ agreed to take a break to allow the carrier’s attorney to text the witness he planned to call to testify so the witness could call in to the proceedings. However, the appeal file does not contain a recording of the testimony provided by the witness called by the carrier. The appeal file does not contain a complete recording of the proceedings. Consequently, we reverse and remand this case to the ALJ who presided over the May 10, 2021, and May 11, 2021, CCHs, if possible, for reconstruction of the record. See Appeals Panel Decision (APD) 201653, decided December 8, 2020.

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 LM INSURANCE CORPORATION 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.

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 July 6, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues, pursuant to an agreement reached by the parties, by determining that: (1) the appellant (claimant) sustained a compensable injury on (date of injury); (2) the respondent (carrier) is not relieved from liability under Section 409.002 because the claimant timely notified his employer pursuant to Section 409.001; (3) the claimant had disability from September 16, 2020, through November 19, 2020, resulting from the (date of injury), compensable injury, but the claimant did not have disability from November 20, 2020, through the date of the CCH resulting from the (date of injury), compensable injury.

The claimant appealed that portion of the ALJ’s disability determination that he did not have disability from November 20, 2020, through the date of the CCH resulting from the (date of injury), compensable injury, contending the parties did not make an agreement concerning that period of disability. The appeal file does not contain a response from the carrier to the claimant’s appeal. The ALJ’s determinations that the claimant sustained a compensable injury on (date of injury); the carrier is not relieved from liability under Section 409.002 because the claimant timely notified his employer pursuant to Section 409.001; and the claimant had disability from September 16, 2020, through November 19, 2020, resulting from the (date of injury), compensable injury were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

Section 410.166 and 28 Tex. Admin. Code § 147.4(c) (Rule 147.4(c)) provide, in part, that an oral agreement of the parties that is preserved in the record is final and binding on the date made. As noted by the ALJ in her decision, Issue Number 3 was revised upon the agreement of the parties to determine whether the claimant had disability resulting from the (date of injury), compensable injury from September 16, 2020, through November 19, 2020. The record reflects that the parties agreed orally at the CCH that “the claimant did have disability resulting from the claimed injury from September 16, 2020, through November 19, 2020.” Although the decision and order correctly states that the claimant had disability from September 16, 2020, through November 19, 2020, the decision and order also states that the claimant did not have disability from November 20, 2020, through the date of the CCH. The record reflects there is no agreement by the parties regarding a disability period of November 20, 2020, through the date of the CCH. Therefore, we reform the ALJ’s decision by striking all references to a disability period of November 20, 2020, 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

MR. RICHARD GERGASKO, PRESIDENT
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

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 July 27, 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) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) the respondent (carrier) has waived the right to contest compensability of the claimed injury for failure to timely dispute the injury in accordance with Section 409.021; and (3) the claimant did not have disability from December 4, 2020, through the date of the CCH. The claimant appealed, disputing the ALJ’s determinations regarding compensability and disability. The carrier responded, urging affirmance of the ALJ’s determinations. The ALJ’s determination that the carrier has waived the right to contest compensability of the claimed injury for failure to timely dispute the injury in accordance with Section 409.021 was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified that he was injured on (date of injury), when he fell backwards off a ladder while changing a light bulb in an apartment. The claimant also testified that because of the injury he lost consciousness, and when he woke up, he had a big headache and pain in his neck, back, and left shoulder. The claimant additionally testified he received medical treatment for his injury.

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).

COMPENSABLE INJURY AND CARRIER WAIVER

Two of the issues before the ALJ were whether the claimant sustained a compensable injury on (date of injury), and whether the carrier waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021. The carrier argued at the CCH that Continental Casualty Company v. Williamson, 971 S.W.2d 108 (Tex. App.—Tyler 1998, no pet.), applied in this case because there was no injury, and because there was no injury there was no waiver.

Section 409.021(a) provides in part that for claims based on a compensable injury that occurred on or after September 1, 2003, that no later than the 15th day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall: (1) begin the payment of benefits as required by the 1989 Act; or (2) notify the [Texas Department of Insurance, Division of Workers’ Compensation (Division)] and the employee in writing of its refusal to pay. Section 409.021(c) provides in part that if an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives the right to contest compensability.

The ALJ noted in her discussion that medical records in evidence show the claimant was examined at Memorial Hermann hospital on (day after the date of the claimed injury), for a trip and fall occurring “6 days ago,” and that he only complained of direct trauma to his chest and right knee due to a “trip and fall on Tuesday.” The ALJ also noted (date of injury), the date of the claimed injury, was a Sunday. The ALJ stated the evidence was not persuasive that the claimant sustained damage or harm to the physical structure of his body on (date of injury). Based on this rationale the ALJ found that the claimant did not sustain damage or harm to the physical structure of his body while in the course and scope of his employment on (date of injury), and determined the claimant did not sustain a compensable injury on (date of injury).

In Williamson, supra, the court held that “if [an ALJ] determines that there is no injury, and that finding is not against the great weight and preponderance of the evidence, the carrier’s failure to contest compensability cannot create an injury as a matter of law.” The Appeals Panel has previously recognized that Williamson is limited to situations where there is a determination that the claimant did not have an injury, that is, no damage or harm to the physical structure of the body, as opposed to cases where there is an injury, which was determined by the ALJ not to be causally related to the claimant’s employment. Appeals Panel Decision (APD) 070903-s, decided July 27, 2007. See also APD 120090, decided March 22, 2012. When a carrier waives its right to contest compensability of the injury, the injury becomes compensable as a matter of law, provided that there is physical harm or damage to the body, and the carrier is liable for workers’ compensation benefits. APD 023017, decided January 27, 2003; APD 030280, decided March 27, 2003; APD 162591, decided February 16, 2017.

As noted by the ALJ in this case there are medical records from Memorial Hermann hospital dated (date), the day after the claimed injury, indicating the claimant described a slip and fall injury that occurred six days prior to (day after the date of the claimed injury). These records reflect the claimant was diagnosed with an accidental fall, a neck strain, and a strain of the back. Also in evidence are records from Rossel Medical Care dated April 13, 2021, April 27, 2021, May 27, 2021, and June 24, 2021. These records also show the claimant was diagnosed with a cervical sprain/strain, a thoracic sprain/strain, and a lumbar sprain/strain, among other conditions, due to the claimed (date of injury), injury.

The ALJ indicates in her discussion that she based her finding of fact that the claimant did not sustain damage or harm to the physical structure of his body while in the course and scope of his employment on (date of injury), on her belief that “the evidence was not persuasive that [the claimant] sustained damage or harm to the physical structure of his body on (date of injury).” However, medical records in this case reflect there was damage or harm to the physical structure of the claimant’s body on (date of injury); therefore, Williamson, supra, does not apply. The ALJ’s finding is against the great weight and preponderance of the evidence.

Although the ALJ determined the claimant did not sustain a compensable injury on (date of injury), because she believed the evidence was not persuasive the claimant sustained damage or harm to the physical structure of his body on (date of injury), she also determined the carrier waived the right to contest compensability of the claimed injury for failure to timely dispute the injury in accordance with Section 409.021. The ALJ’s determination on carrier waiver under Section 409.021 was not appealed and has become final pursuant to Section 410.169. The carrier in this case did not dispute the claimed injury within 60 days of written notice of the claimed injury, and as explained above, Williamson, supra, does not apply. Therefore, we reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and we render a new decision that the claimant did sustain a compensable injury on (date of injury).

DISABILITY

The ALJ’s determination that the claimant did not have disability from December 4, 2020, through the date of the CCH is supported by sufficient evidence and is affirmed.

SUMMARY

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

We affirm the ALJ’s determination that the claimant did not have disability from December 4, 2020, through the date of the CCH.

The true corporate name of the insurance carrier is SOMPO AMERICA INSURANCE 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:

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 March 4, 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) the appellant (claimant) did not sustain a compensable injury on (date of injury); and (2) the respondent (self-insured) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001.

The claimant appealed the ALJ’s compensability and timely notice determinations. The self-insured responded, urging affirmance of the appealed determinations.

DECISION

Reversed and remanded.

This case is remanded for the purpose of compliance with House Bill (H.B.) 2600 of the 77th Texas Legislature, Regular Session (R.S.) amending Section 410.164, effective June 17, 2001. Section 410.164 was amended by the addition of subsection (c), which provides as follows:

(c) At each [CCH], as applicable, the insurance carrier shall file with the [ALJ] and shall deliver to the claimant a single document stating the true corporate name of the insurance carrier and the name and address of the insurance carrier's registered agent for service of process. The document is part of the record of the [CCH].1

In this case, the address provided on the carrier’s information form for the person identified as the registered agent was a post office box, where service of process cannot be effectuated. Therefore, we remand so that a street address may be provided by the self-insured for its registered agent, in order to carry out the purpose of the legislation. See Appeals Panel Decision (APD) 210080, decided March 12, 2021.

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.


Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

1 Section 410.164 was amended effective September 1, 2017, to change “hearing officer” to “administrative law judge.” Acts 2017, 85th Leg., R.S., Ch. 839 (H.B. 2111), Sec. 8, eff. September 1, 2017.

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.”

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 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.

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 March 1, 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) the appellant (carrier) is liable for payment of accrued benefits pursuant to 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3) resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury; and (2) the respondent (claimant) had disability resulting from the compensable injury of (date of injury), from March 31, 2020, through the present. The carrier appealed, disputing the ALJ’s determinations. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), which extends to a lumbar strain. The claimant testified he was working with a coworker on (date of injury), inspecting a tank to be moved from its location in (state) to a different location. The claimant testified he was on top of the tank and injured his low back while reaching down and lifting up a heavy metal piece called a stinger his coworker handed up to him.

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).

DISABILITY

The ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), from March 31, 2020, through the present is supported by sufficient evidence and is affirmed.

CARRIER LIABILITY FOR BENEFITS UNDER RULE 124.3

Rule 124.3(a)(1) provides in pertinent part that if the carrier does not file a Notice of Denial by the 15th day after receipt of the written notice of the injury, the carrier is liable for any benefits that accrue and shall initiate benefits in accordance with this section. Rule 124.3(a)(2) provides that if the carrier files a Notice of Denial after the 15th day but on or before the 60th day after receipt of written notice of the injury: (A) the carrier is liable for and shall pay all income benefits that had accrued and were payable prior to the date the carrier filed the Notice of Denial and only then is it permitted to suspend payment of benefits; and (B) the carrier is liable for and shall pay for all medical services, in accordance with the 1989 Act and Texas Department of Insurance, Division of Workers’ Compensation (Division) Rules, provided prior to the filing of the Notice of Denial. Rule 124.3(a)(3) provides that the carrier shall not file notice with the Division that benefits will be paid as and when they accrue with the Division. Rule 124.3(a)(4) provides in pertinent part that a carrier’s failure to file a Notice of Denial by the 15th day after it receives written notice of an injury constitutes the carrier’s acceptance of the claim as a compensable injury, subject to the carrier’s ability to contest compensability on or before the 60th day after receipt of written notice of the injury, and that a carrier’s failure to do so results in the carrier being liable for all accrued income and medical benefits. Finally, Rule 124.3(a)(5) provides in pertinent part that a carrier commits an administrative violation if, not later than the 15th day after it receives written notice of the injury, it does not begin to pay benefits as required or file a Notice of Denial of the compensability of a claim.

The ALJ noted in his discussion that the carrier received written notice of the claimed injury on September 15, 2020, when the claimant’s attorney faxed the Employee’s Claim for Compensation for a Work-Related Injury or Occupational Disease (DWC-41) to the carrier, and that the 15th day after the carrier received notice was September 30, 2020. The ALJ further noted that the carrier filed a dispute on January 6, 2021. The ALJ found that the carrier did not file a denial disputing the claim with the Division by the 15th day after it received written notice of the injury and therefore determined that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.

The carrier argues on appeal that it had accepted compensability of the claimant’s (date of injury), injury, and contends that the ALJ in this case confuses a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) with a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11). The carrier also contends that because it had accepted the claimant’s (date of injury), injury as compensable, Rule 124.3 does not apply in this case.

In evidence is a PLN-11 dated January 6, 2021, in which the carrier stated it did not agree the “[claimant’s] work-related injury [of (date of injury),] stops [the claimant] from getting or keeping a job that pays what [the claimant] earned [prior to that injury] (existence, duration, or extent of disability).” The carrier also stated in this PLN-11 that it did not agree that “some of [the claimant’s] medical conditions were caused by [the claimant’s (date of injury),] work-related injury (extent of injury).” The carrier did not state in the PLN-11 that it was disputing compensability or liability of the (date of injury), injury, and the evidence does not contain a PLN-1 from the carrier denying compensability or liability of the (date of injury), injury. In Appeals Panel Decision (APD) 072002-s, decided December 20, 2007, the Appeals Panel noted that the “preamble to Rule 124.3 states a dispute of benefit entitlement, i.e.[,] disability and entitlement to [temporary income benefits], is not a dispute of compensability/liability. . . .” The carrier’s January 6, 2021, PLN-11 was a dispute of benefit entitlement, not a dispute of compensability or liability of the (date of injury), injury. The evidence did not establish that the carrier has filed a dispute of compensability or liability of that injury, and as noted above, the parties stipulated at the CCH that the claimant sustained a compensable injury on (date of injury). We reverse the ALJ’s determination that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3, resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury. We render a new decision that the carrier is liable for the payment of accrued benefits in accordance with this decision. See APD 101679, decided December 30, 2010.

SUMMARY

We affirm the ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), from March 31, 2020, through the present.

We reverse the ALJ’s determination that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3, resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury. We render a new decision that the carrier is liable for the payment of accrued benefits in accordance with this decision.

The true corporate name of the insurance carrier is NATIONWIDE AGRIBUSINESS INSURANCE 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:

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 January 29, 2021, with the record closing on March 10, 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) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) considering the claimant did not sustain a compensable injury on (date of injury), it does not extend to dislocation of the navicular cuneiform joint in the left foot; and (3) the claimant did not have disability from August 7, 2020, through the date of the CCH. The claimant appealed, disputing the ALJ’s determinations of compensability, extent of injury, and disability. The respondent (carrier) responded, urging affirmance of the disputed determinations.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record at the CCH. There is no audio recording or transcript in the appeal file. Consequently, we reverse and remand this case to the ALJ who presided over the January 29, 2021, CCH, if possible, for reconstruction of the record. See Appeals Panel Decision (APD) 201653, decided December 8, 2020.

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 OLD REPUBLIC INSURANCE 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.

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 was held on October 28, 2020, and January 11, 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) the appellant (claimant), for workers’ compensation purposes, was not an employee of (employer), at the time of the claimed injury on (date of injury); (2) the claimant did not sustain a compensable injury on (date of injury); (3) the respondent (carrier) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; and (4) because the claimant did not sustain a compensable injury, the claimant did not have disability from June 30, 2018, through September 1, 2018. The claimant appealed the ALJ’s determinations. The carrier responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified that on (date of injury), he was injured when he was rear-ended while driving his taxi. 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).

EMPLOYEE OR INDEPENDENT CONTRACTOR

The ALJ’s determination that the claimant, for workers’ compensation purposes, was not an employee of (employer), at the time of the claimed injury on (date of injury), is supported by sufficient evidence and is affirmed.

COMPENSABLE INJURY

The ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability from June 30, 2018, through September 1, 2018, is supported by sufficient evidence and is affirmed.

TIMELY NOTICE TO EMPLOYER

The ALJ noted in her discussion that the claimant credibly testified he notified his dispatcher on the date of injury and that his dispatcher provided transportation for him from the hospital. The ALJ further noted that if the claim was found to be compensable, the carrier is not relieved of liability since the claimant contacted his employer, or someone in a supervisory position with the employer, within 30 days of the date of injury. The ALJ found in Finding of Fact No. 8 that the claimant notified the employer, or an employee holding a supervisory or management position, of the (date of injury), injury within 30 days of the date of injury. The ALJ also found in Finding of Fact No. 9 that because there is no compensable injury, the issue as to the timely reporting of an injury to the claimed employer is moot. However, Conclusion of Law No. 5, the Decision, and the Decision and Order paragraph on the first page of the decision all state that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001. The ALJ made inconsistent and conflicting findings of fact and determinations regarding the issue of timely notice to the employer. Usually, a case in which the ALJ makes inconsistent and conflicting findings of fact and determinations on a disputed issue will be remanded to the ALJ to make determinations that are consistent and supported by the evidence. See generally Appeals Panel Decision 171955, decided October 17, 2017. However, in the instant case we have affirmed the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury). The ALJ’s finding of fact that because there is no compensable injury the issue as to the timely reporting of an injury to the claimed employer is moot is legally correct. Therefore, under the circumstances in this case, we reverse the ALJ’s determination that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001, and we render a new decision that because there is no compensable injury the issue as to the timely reporting of an injury to the claimed employer is moot.

SUMMARY

We affirm the ALJ’s determination that the claimant, for workers’ compensation purposes, was not an employee of (employer), at the time of the claimed injury on (date of injury).

We affirm the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury).

We affirm the ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability from June 30, 2018, through September 1, 2018.

We reverse the ALJ’s determination that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001, and we render a new decision that because there is no compensable injury the issue as to the timely reporting of an injury to the claimed employer is moot.

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.

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 September 22, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the respondent/cross-appellant (claimant) sustained a compensable injury on (date of injury); and (2) the claimant did not have disability resulting from the (date of injury), compensable injury beginning on April 26, 2020, and continuing through the date of the CCH.

The appellant/cross-respondent (carrier) appealed the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), as well as Finding of Fact No. 5, that the “(date of injury), compensable injury was a cause of [the] [c]laimant’s inability to perform his preinjury duties from April 26, 2020, through the date of [the CCH].” The claimant responded, urging affirmance of the ALJ’s compensability determination and Finding of Fact No. 5 in his favor. The claimant also cross-appealed the ALJ’s disability determination adverse to him. The carrier responded to the claimant’s cross-appeal, urging affirmance of the disability determination.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified he was injured on (date of injury), while filling a flat tire. The claimant testified that as he was filling the tire it exploded, causing injuries to his left arm which resulted in multiple surgeries.

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).

COMPENSABLE INJURY

The ALJ’s determination that the claimant sustained a compensable injury on (date of injury), is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ found that “[t]he (date of injury), compensable injury was a cause of [the] [c]laimant’s inability to perform his preinjury duties from April 26, 2020, through the date of [the CCH].” The ALJ’s finding is supported by the evidence. However, the ALJ determined that the claimant did not have disability beginning on April 26, 2020, through the date of the CCH. The ALJ noted in the Discussion portion of the decision that the claimant testified he has not been able to work since the compensable injury due to the injuries he sustained. The ALJ also stated the following:

[The] [c]laimant testified that [the] [e]mployer has continued to pay [the] [c]laimant his regular weekly wage even though [the] [c]laimant is physically unable to perform his job or earn his pre-injury wage as a result of the compensable injury. [The] [c]laimant has not met his burden of proof that he has disability from April 26, 2020, through the date of this CCH because [the] [e]mployer continued to pay [the] [c]laimant his preinjury wages.

Section 401.011(16) defines disability as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 408.003(f) provides that “[s]alary continuation payments made by an employer for an employee's disability resulting from a compensable injury shall be considered payment of income benefits for the purpose of determining the accrual date of any subsequent income benefits” under the 1989 Act.

In Appeals Panel Decision (APD) 050565, decided May 2, 2005, the issue was disability. The claimant in that case sustained a compensable injury and was unable to work for a period of time during which he received salary continuation from the employer. The carrier in that case contended that since the claimant received salary continuation during the claimed disability period, he was not entitled to temporary income benefits (TIBs). The Appeals Panel noted that neither the issue of payment of TIBs nor the accrual date of income benefits was before the ALJ or the Appeals Panel, and that the only issue before the Appeals Panel was disability. The Appeals Panel cited APD 951736, decided December 7, 1995, and APD 941073, decided September 26, 1994, as cases in which the claimant continued to receive his salary but did not work because of the compensable injury. The Appeals Panel held in those cases that the claimant had disability because the injured employee “was not performing personal services for the employer in exchange for the salary continuation,” and that the claimant had disability during the period that he was unable to work. In APD 050565, supra, the Appeals Panel held that the ALJ erred in determining that the claimant did not have disability because he received salary continuation benefits for a period of time while he was not working, and therefore reversed the determination and rendered a new decision that the claimant did have disability during such period of time.

In the case on appeal, the only issues before the ALJ were compensability and disability; there was no issue regarding either the payment of TIBs or the accrual date of income benefits. The claimant testified he has been unable to work due to the compensable injury since the date of that injury, and that since the date of injury he has received pay in an amount equal to his preinjury wage. The evidence was undisputed that the claimant did not perform any personal services for the employer in exchange for the pay he received. The ALJ’s statement that the claimant did not meet his burden of proof that he had disability from April 26, 2020, through the date of the CCH because the employer continued to pay the claimant his preinjury wages is legally incorrect; the employer’s payments to the claimant are not wages under the 1989 Act. We hold the ALJ erred in determining that the claimant did not have disability beginning on April 26, 2020, and continuing through the date of the CCH. Accordingly, we reverse the ALJ’s determination that the claimant did not have disability beginning on April 26, 2020, and continuing through the date of the CCH, and we render a new decision that the claimant had disability beginning on April 26, 2020, and continuing through the date of the CCH. We take no position on the accrual of benefits or reimbursement as these issues are not before us.

SUMMARY

We affirm the ALJ’s determination that the claimant sustained a compensable injury on (date of injury).

We reverse the ALJ’s determination that the claimant did not have disability resulting from the (date of injury), compensable injury beginning on April 26, 2020, and continuing through the date of the CCH, and we render a new decision that the claimant had disability beginning on April 26, 2020, and continuing through the date of the CCH.

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

RICHARD A. MAYER
11910 GREENVILLE AVENUE, SUITE 600
DALLAS, TEXAS 75243.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

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