Alcohol intoxication is defined two different ways under the 1989 Texas Workers’ Compensation Act. Under the first definition, it is defined as having an alcohol concentration to qualify as intoxicated under Section 49.01, Penal Code. Section 401.013(a)(1). Under the second definition, intoxication is defined as the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage, as defined by Section 1.04 of the Texas Alcoholic Beverage Code. Section 401.013(a)(2)(A). A finding that the employee was intoxicated at the time of the claimed injury under either definition will relieve the insurance carrier from liability and make the injury non-compensable. The employee is presumed to be sober at the time of the injury. Bender v. Federal Underwriters Exchange, 133 S.W.2d 214, (Tex.Civ.App.—Eastland, 1939, writ dism’d judgm’t correct).
It is well established that an insurance carrier is not liable for payment of workers compensation benefits if the injury “occurred while the employee was in a state of intoxication.” Section 406.032(1)(A). The intoxication exception does not require a causal connection between the injury and the employee’s intoxication and serves as an absolute exception to liability, regardless of the cause of injury. Texas Indemnity Insurance Company v. Dill, 42 S.W.2d 1059 (Tex. App.—Eastland 1931), aff’d 63 S.W.2d 1016 (Tex. Comm’n App. 1933). Whether or not an employee was intoxicated due to the voluntary introduction into the body of an alcoholic beverage at the time of the injury is a question of fact for the Hearing Officer to decide. Appeals Panel Decision 002818. The introduction of the alcohol does have to be voluntary, however, an employee may be considered to be outside the course and scope of his or her employment due to intoxication even when the employee’s supervisors are involved and present during the intoxication.
As a matter of law, an employee who tests at or above the legal limit for alcohol concentration at the time of the claimed injury is intoxicated for purposes of the 1989 Act. Intoxication is defined in Section 401.013(a)(1)as having an alcohol concentration of 0.08 or more as defined by Section 49.01 of the Texas Penal Code:
§ 49.01. DEFINITIONS. In this chapter:
(2) “Intoxicated” means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more
Under Texas law “alcohol concentration” means the number of grams of alcohol per:
(A) 210 liters of breath;
(B) 100 milliliters of blood; or
(C) 67 milliliters of urine.
Blood Alcohol Content is referred to as “BAC”.
When a carrier properly raises the defense of alcohol intoxication, there is a shifting burden of the burden of proof. Since the employee is presumed to have been sober at the time the injury occurred, the initial burden is on the carrier to present evidence that the employee was in a state of intoxication due to the employee’s voluntary introduction into the body of an alcoholic beverage. When the carrier presents “probative evidence” of intoxication to rebut the presumption of sobriety, then the claimant has the burden to prove that he or she was not intoxicated at the time of the injury. March v. Victoria Lloyds Insurance Co., 773 S.W.2d 785 (Tex. Civ. App.—Fort Worth 1989, writ denied).
An extrapolation of a blood-alcohol concentration can be sufficient evidence to shift the burden of proof to the employee to prove that he was not intoxicated from the voluntary introduction into the body of alcohol. Appeals Panel Decision 002818. Even a test revealing a blood alcohol concentration which is less than that provided for in Penal Code Section 49.01(2), along with other evidence, may possibly be sufficient to shift the burden of proof regarding sobriety to the employee. Appeals Panel Decision 982483.
While an employee’s refusal to submit to a drug or alcohol test does not shift the burden of proof on the issue of intoxication as a matter of law, the hearing officer may find that the burden shifts through introduction of other evidence.
Although, scientific or medical evidence is not required to establish sobriety, a one line statement that an employee was not intoxicated does not do enough to overcome the presumption of intoxication, once the burden of proof shifts. Appeal Panel Decision 062507-S.
Typically, whether or not an employee had the normal use of his or her mental and physical faculties at the time of the injury is a question of fact for the Hearing Officer or court to decide.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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