Amarillo Court of Appeals: Claimant failed to Rebut DWC Finding of Intoxication
The Amarillo court of Appeals has concluded that an employee’s beneficiaries failed to rebut a Division determination of intoxication. Accordingly, the court affirmed the trial court’s no-evidence motion for summary judgment.
In Denham v. Texas Mutual Insurance Company, the employee died in a motor vehicle accident when the company truck he was driving crashed while en route to a job site in New Mexico. Two days after the fatal accident, an autopsy was performed, which included blood and urine tests for intoxicants. The results of those tests revealed the presence of THC, the active ingredient in marijuana. The carrier disputed compensability of the claim, arguing that the employee was not in the course and scope of his employment and that he was intoxicated at the time of the accident. The Division rejected the carrier’s course and scope argument, but agreed with the carrier regarding intoxication. The beneficiaries filed suit for judicial review.
After a lengthy period of inactivity at the trial court level, the carrier filed a no-evidence motion for summary judgment. The trial court granted the motion. The beneficiaries appealed to the 7th Court of Appeals, sitting in Amarillo. The court of appeals affirmed the judgment of the trial court.
The beneficiaries challenged the Division’s application of the presumption of intoxication in the first place. They relied upon the opinion of a doctor who opined that “the post[-]mortem drug levels found in [the employee]’s body were totally invalid due to the rapid redistribution from storage tissues.” The doctor’s opinion only spoke to the propriety of making a conclusion regarding intoxication based on post-mortem testing. It did not seek to prove that the employee was not intoxicated at the time of his fatal accident.
The court of appeals rejected the beneficiaries’ argument:
Here, Denham presented an affidavit from Robert J. Phillips, D.O., who opined that “the post[-]mortem drug levels found in [Burriss]’s body were totally invalid due to the rapid redistribution from storage tissues.” Phillips’s attached correspondence is more detailed but still only speaks to the propriety of making a conclusion regarding intoxication based on post-mortem testing. That is not the issue to consider; we must consider the evidence that, at the time of the fatal accident, Burriss was not intoxicated. We can find no such evidence. We acknowledge Phillips’s position on post-mortem toxicological results and the meaning that should or should not be assigned to them. However, the rebuttable presumption of Section 401.013(c) was in place, regardless of whether it is founded on medically and toxicologically sound theory. That is, the propriety of the presumption is not before us; we are tasked only with studying the record for evidence that Burriss was not intoxicated at the time of the motor vehicle accident. Unlike the case in Ruel, we find no evidence of Burriss’s state at the time of the accident, nothing at all supporting a conclusion that he did, in fact, have the normal use of his mental and physical faculties. See Sanchez v. State Office of Risk Mgmt., 234 S.W.3d 96, 102 (Tex. App.—El Paso 2007, no pet.) (observing that “[t]he issue on appeal is not whether [the employee] was intoxicated, but whether [the plaintiff] presented evidence that [the employee] was not intoxicated”). We have no evidence from Burriss’s passenger and, unfortunately, the deceased Burriss could not provide any evidence regarding details of his ingestion or exposure to marijuana.
The case is a good example of how courts will apply the burden of proof in an intoxication case on judicial review. The question at that point is whether there is evidence that the employee was or was not intoxicated at the time of the accident. An argument that seeks to challenge the post-mortem toxicology findings does not address the proper issue and will not result in a reversal.
FOLIO
