AP Reverses ALJ Who Misstated the Evidence in Intoxication Case
The Appeals Panel has reversed an ALJ’s Decision and Order and remanded the case for further proceedings where the judge failed to accurately describe the opinion of the carrier’s expert on the subject of the claimant’s intoxication. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 181781, decided October 2, 2018.
While painting a roof awning, the claimant lost his balance and fell approximately 15 feet to the ground. He was transported to the hospital by ambulance and he underwent surgery to his right lung. The claimant sustained injuries to the right side of his body, including multiple rib fractures. A urinalysis was performed at the hospital which tested positive for methamphetamines and opiates. Subsequently, the claimant on his own had hair testing performed by another lab facility. A hair specimen was collected from the claimant and a report from that lab reflects that the specimen tested negative for methamphetamines and opiates.
The carrier retained a toxicologist to performed a review of records and to provide a report. In her discussion of the evidence, which included the toxicologist’s report, the ALJ specifically states that “[the toxicology] report does not accurately document the measurement unit used in [the] [c]laimant’s hair drug test.” The carrier appealed and contended that “[the toxicologist] never reviewed the hair drug test since it was completely immaterial” and that the ALJ misstated the facts of this case.
The ALJ wrote 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.
The Appeals Panel noted that the toxicology report in question referenced the claimant’s urinalysis performed, but did not reference the claimant’s hair drug test. The ALJ’s statement that the carrier’s expert had not accurately documented the measurement unit used in the claimant’s hair drug test “is a misstatement of the evidence in this case, which [the Appeals Panel viewed] as a material misstatement of fact.”
The Appeals Panel remanded the case for further proceedings consistent with its Decision.
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