AP Renders Decision for Carrier in Intoxication Case

The Appeals Panel has reversed an ALJ’s Decision and Order and rendered a Decision that the claimant failed to rebut the presumption that he was intoxicated at the time of his accidental injury. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 181684, decided September 13, 2018.

According to the Appeals Panel, 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.

At the CCH, 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 Appeals Panel reversed the decision of the ALJ, writing:

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.

This is the second time in a little over a year that the Appeals Panel has reversed an ALJ for trying to weaken the intoxication defense. In Texas Division of Workers’ Compensation Appeals Panel Decision No. 171115, decided July 10, 2017, the Appeals Panel squarely held that a positive drug test by blood or urine testing is all that is required to create the presumption that the employee was intoxicated at the time of the accident. No additional requirements can be imposed by the Administrative Law Judge.

In her discussion of the evidence in that case, the ALJ referenced the June 2, 2016 urinalysis and stated that the initial drug screen performed on the date of the injury provided insufficient testing information. She 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.

The Appeals Panel disagreed and rendered a Decision in the carrier’s favor:

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. (Emphasis added)

With the new Decision, the Appeals Panel has now twice renounced the efforts of ALJs to find a way around the clear statutory language of the intoxication defense.