Appeals Panel Reverses ALJ Who Refused to Apply Intoxication Presumption
The appeals panel has reversed the decision and order of an administrative law judge who ignored the statutory intoxication presumption and found a claimant’s MVA rollover accident caused compensable injuries. The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 210714, decided June 30, 2021, remanded the case to the ALJ to apply the statutory presumption correctly.
The claimant testified he was injured when a water truck he was driving rolled over. Hospital records from the date of injury state a urinalysis had been performed and that the claimant tested positive for cannabinoids. Carrier also offered a report from a medical toxicologist, that discusses her review of the hospital records. In that report the doctor stated “[a] urine drug screen collected at 11:28 on [(date of injury)] showed a positive for cannabis.” The report also states that 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.”
The appeals panel noted that the Act establishes a presumption of intoxication under certain circumstances:
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 case on appeal, the ALJ observed that a federal drug testing custody and control form said that a urine specimen had been collected for drug testing but that a section of that form containing a space for a verification of results had been left blank. The ALJ stated that he viewed this blank space as “some evidence” that no drug test had been 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 did 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 did not establish that the claimant tested positive for marijuana based on a urinalysis test on the date of injury.
The appeals panel disagreed.
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.
Consequently, the appeals panel reversed 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. The appeals panel remanded 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.
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