Texas = Judiciary Online

MEMORANDUM=20 OPINION

=20 This appeal arises from a worker=92s compensation case in = which Texas=20 Mutual Insurance Company disputes the compensability of Richard = Havard=92s=20 injuries. After a = bench=20 trial, the trial court found that Havard was not intoxicated at = the time=20 of his injury, and thus, it was compensable. In three issues, Texas = Mutual=20 contends that the evidence is legally and factually insufficient, = and that=20 the trial court erred in refusing to sanction=20 Havard.

Background

=20 In April 2004, Pneu-Rock Transportation employed Richard = Havard as=20 a truck driver. = Texas Mutual=20 insured Pneu-Rock for worker=92s compensation claims. Havard had worked as a = truck=20 driver for more than twenty years, and had been working for = Pneu-Rock=20 since 2000. Havard = had been=20 randomly drug tested prior to working for Pneu-Rock, and also by = Pneu-Rock=20 in 2000, 2001, and December 2003. =20 All of those tests were negative. On the morning of April = 8, 2004,=20 Havard was scheduled to pick up a load of asphalt near the Houston = Ship=20 Channel. He went to = bed at=20 8:00 p.m. and woke up at 1:00 am. =20 He admitted to taking no-doze and mini-ephedra with his = morning=20 coffee.

=20 Upon arriving at the pick-up facility, Havard inputted = numerous=20 identification numbers on the control box to gain entry. Once inside, Havard = maneuvered his=20 semi-truck on a narrow loading ramp, with approximately three or = four=20 inches on each side before a two-foot drop. Havard then loaded the = asphalt,=20 which required him to determine the amount of gallons of asphalt = he needed=20 to prevent being overweight, and to attach a loading spout. After Havard had fully = loaded the=20 tanker, Havard filed his paperwork and left the facility. A worker at the facility = averred=20 that Havard did not appear to be = intoxicated.

=20 After driving approximately thirty miles on the freeway, = Havard=20 choked on a sip of his coffee and lost control of his truck. The truck ran into a = guardrail,=20 and Havard was ejected from the cab, falling 10-15 feet = below. The first EMS responder asked Havard whether he had = taken=20 drugs, and Havard replied that he had taken no-doze, ephedra, and=20 =93meth.=94 An air = ambulance=20 transported Havard to Memorial=20 Hermann Hospital in Houston. Approximately = thirty-five hours=20 after the accident, medical personnel obtained a urine sample from = Havard=20 through a catheter, while he was unconscious. The urine sample tested = positive=20 for benzoylecgonine, a cocaine metabolite.

Following the = positive test,=20 Texas Mutual denied compensability, and Havard invoked his = administrative=20 remedies. At the = Contested=20 Case Hearing (=93CCH=94) in November 2004, the parties presented = evidence on=20 the issue of intoxication, which included testimony from experts = for both=20 sides concerning the interpretation of a positive urine test, as = well as=20 testimony from Havard and a facility worker recounting the events = on the=20 day of the accident. = The CCH=20 officer determined that Havard had sustained a compensable injury = and was=20 not intoxicated at the time of his injuries. Texas Mutual appealed = the decision=20 to the Appeals Panel, who affirmed the decision of the CCH officer = by=20 operation of law. = Texas=20 Mutual then sought judicial review. =20 After a bench trial, the trial court affirmed the decision = of the=20 appeals panel, and rendered judgment in favor of=20 Havard.

Sufficiency of the=20 Evidence

=20 Texas Mutual contends that the evidence is legally and = factually=20 insufficient to support a finding that Havard was not intoxicated = at the=20 time of his accident. = In=20 support of its contention, Texas Mutual asserts that the trial = court=20 applied an incorrect presumption of intoxication under the Texas = Labor=20 Code.

Standard of=20 Review

In an appeal from a = bench=20 trial, a trial court=92s findings of fact have the same weight as = a jury=92s=20 verdict. Amador = v.=20 Berrospe, 961 S.W.2d 205, 207 (Tex. App.=97Houston [1st Dist.] = 1996,=20 writ denied). When=20 challenged, findings of fact are not conclusive if, as here, there = is a=20 complete reporter=92s record. =20 Id. When there is a = reporter=92s record,=20 the trial court=92s findings of fact are binding only if supported = by the=20 evidence. = Id. If the findings are = challenged, we=20 review the sufficiency of the evidence supporting the findings by = applying=20 the same standards that we use in reviewing the legal or factual=20 sufficiency of the evidence supporting jury findings. Catalina v. = Blasdel, 881=20 S.W.2d 295, 297 (Tex. = 1994).

=20 If a party attacks the legal sufficiency of an adverse = finding on=20 an issue as to which it bears the burden of proof, then it must=20 demonstrate on appeal that the evidence conclusively established = all vital=20 facts in support of the issue. =20 Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 = (Tex. = 1989). If no evidence exists to = support=20 the finding, we examine the entire record to determine if the = contrary=20 proposition is established as a matter of law. Id.; see City of Keller v. Wilson,=20 168 S.W.3d 802, 827 (Tex. 2005) (test for legal = sufficiency=20 is whether evidence at trial would enable reasonable and = fair-minded=20 people to reach verdict under review).

Worker=92s = Compensation Act=20 Appeals

The Texas Supreme = Court has=20 held that a Texas Workers=92 Compensation Commission (TWCC) = Appeals Panel=92s=20 final decision may be appealed to the courts under a =93modified = de novo=20 review.=94 Texas = Workers'=20 Compensation Comm'n v. Garcia, 893 S.W.2d 504, 530 (Tex. = 1995).=20 Under this modified de novo review, all issues regarding = compensability of=20 the injury may be tried by the jury or court. Id. at 528;=20 see Tex. Lab. = Code=20 Ann. =A7=A7 410.301, .304 (Vernon 2006). Modified de novo review = means: (1)=20 the trial court is informed of the TWCC Appeals Panel=92s = decision, (2)=20 evidence of the extent of impairment is limited to that presented = to the=20 TWCC, unless the court makes a threshold finding that the = claimant=92s=20 condition has substantially changed, and (3) the court is required = to=20 adopt the specific impairment rating arrived at by one of the = physicians=20 in the case. Tex. Lab. = Code=20 Ann. =A7=A7 410.304, .306=96.307; Garcia, 893 S.W.2d = at 528. The=20 court, although informed of the TWCC=92s decision, is not required = to accord=20 it any particular weight. Id. at 515. The fact = finder does=20 not review the Appeals Panel=92s decision for = =93reasonableness,=94 but rather=20 independently decides the issues by a preponderance of the = evidence. Id. at 531. The party appealing the = TWCC=92s=20 ruling bears the burden of proof by a preponderance of the = evidence. Tex. Lab.=20 Code Ann. =A7=20 410.303. Because Texas Mutual=92s = claim was=20 denied at the administrative level, it had the burden of proving = by a=20 preponderance of the evidence that Havard was intoxicated at the = time of=20 the accident. See=20 id.

Intoxication

The workers=92 = compensation laws=20 prohibit the recovery of compensation where, at the time of = injury, an=20 employee is intoxicated. Tex. Lab. Code Ann. =A7 = 406.032(1)(A) (Vernon 2006). =20

=93Intoxication=94 means the state=20 of:

(1) =20 having an alcohol concentration to qualify as intoxicated = under=20 Section 49.01(2), Penal Code; =20 or

(2) not having the normal use of mental = or=20 physical faculties resulting from the voluntary introduction into = the body=20 of:

(A) an alcoholic beverage, as defined by = Section=20 1.04, Alcoholic Beverage Code; [or]

(B) a controlled substance or controlled = substance=20 analogue, as defined by Section 481.002, Health and Safety=20 Code.

Id. =A7 401.013(a). Cocaine is a controlled = substance=20 included under =A7 481.002. =20 Tex. Health & Safety Code = Ann. =A7=20 481.002 (Vernon 2006).

In cases involving = controlled=20 substances, there is no level or test defined by the statute that=20 establishes per se if a person has lost use of his or her physical = and=20 mental faculties. Am. Interstate Ins. Co. v. = Hinson,=20 172 S.W.3d 108, 115 (Tex.=20 App.=97Beaumont 2005, pet. denied). =20 The statutory standard for cocaine is relatively = subjective. See id.; see also Tex. Lab. Code Ann. =A7 = 401.013(a)=20 (2).

The Texas Labor Code = includes a=20 presumption that states: =93[o]n the voluntary introduction into = the body of=20 any substance listed under Subsection (a)(2)(B), based on a blood = test or=20 urinalysis, it is a rebuttable presumption that a person is = intoxicated=20 and does not have the normal use of mental or physical = faculties.=94 Tex. Lab. Code Ann. =A7 = 401.013(c). In = enacting the=20 amendment that created =A7401.013(c) in 2005, the Texas = Legislature codified=20 former case law. See TWCC App. No. = 021751, 2002=20 WL 31115380, Aug. 26, 2002 (employee is presumed sober, but when = carrier=20 rebuts presumption of sobriety with probative evidence of = intoxication,=20 burden shifts to employee to prove he was not intoxicated at time = of=20 injury); TWCC App. No. 032618, 2003 WL 23011731, Nov. 19, 2003; see also TWCC App. No. = 012208,=20 2001 WL 1472150, Oct. 23, 2001 (positive test for controlled = substance=20 will generally shift burden to claimant to prove he was not intoxicated at time of = injury). Texas = Mutual=20 contends that the trial court did not apply this presumption.

We find no indication = in the=20 record that either the TWCC or the trial court refused to apply = the=20 rebuttable presumption in this case that was embodied in prior = case=20 law. To the = contrary, as=20 explained in TWCC Appeal No. 021751, an employee is presumed = sober;=20 however, when the carrier rebuts the presumption of sobriety with=20 probative evidence of intoxication, the burden shifts to the = employee to=20 prove that he was not intoxicated at the time of the injury. 2002 WL 31115380, TWCC = App. No.=20 032618, 2003 WL 23011731; see also=20 TWCC App. No. 012208, 2001 WL 1472150 (positive test for = controlled=20 substance will generally shift burden to claimant to prove he was = not intoxicated at time of = injury).=20 The trial court=92s = findings of=20 fact and conclusions of law do not reveal any refusal to place the = proper=20 burden on the claimant. = In=20 analyzing Texas Mutual=92s challenges to the legal sufficiency, we = review=20 whether the Appeals Panel and the trial court reasonably could = have=20 concluded that Havard rebutted the presumption. Ultimately, in appeals = from the=20 TWCC, the burden is on the party who did not prevail to prove that = no=20 valid basis exists for the decision of the commission and the = trial=20 court. See Tex. Lab. Code Ann. =A7 = 410.303 (b)=20 (Vernon 2006).

Legal=20 Sufficiency

=20 Texas Mutual contends that the evidence is legally = insufficient to=20 support a finding that Havard was not intoxicated at the time of = the=20 accident. Texas = Mutual=92s=20 evidence consisted of the positive urine test and an expert, Dr. = Avery,=20 who testified that based on the urine test, Havard was intoxicated = at the=20 time of the accident. = To=20 controvert that evidence, Havard presented testimony at trial from = toxicologist, E. Lykissa, who testified that the positive urine = test does=20 not prove that Havard was suffering from the effects of cocaine = when he=20 wrecked the truck. =20 According to Lykissa, the urine test only proves that at = some point=20 in time, Havard had ingested cocaine. In addition, Havard = offered=20 evidence of a second urine test, in which the amount of cocaine=20 metabolites was significantly lower, as well as a hair test, which = was=20 negative for cocaine. = Havard=20 testified that he had never used cocaine and was not intoxicated = at the=20 time of the accident. = He also=20 described everything he did the morning of the accident, which = included=20 maneuvering his semi-truck around tight corners and onto a narrow=20 platform, as well as entering numerous codes and hooking up = equipment to=20 receive his load. =20 Furthermore, Havard drove over thirty miles, without = incident,=20 prior to the accident. = A=20 worker at the facility where Havard loaded his truck averred that = Havard=20 did not appear to be intoxicated.

We conclude that a = reasonable=20 fact finder could conclude that Havard was not intoxicated at the = time of=20 his injury as it is defined in the Labor Code. The scientific and expert = evidence=20 introduced during the trial in this case is not conclusive as a = matter of=20 law that Havard was intoxicated at the time of the accident, and = the=20 evidence does not meet the threshold in the Labor Code at which = such=20 evidence is not rebuttable under section 401.013(a)(2)(b). Simply put, Havard = rebutted the=20 presumption of intoxication to the satisfaction of the CCH = officer, the=20 TWCC Appeals Panel, and the trial court. We hold that the = evidence is=20 legally sufficient to support the trial court=92s=20 finding.

Factual=20 Sufficiency

Texas Mutual also = asserts that=20 the evidence is factually insufficient to support the verdict. = Because Texas Mutual had = the burden=20 of proving Havard was intoxicated, Texas Mutual must show that the = verdict=20 is against the great weight and preponderance of the evidence. = Raw Hide Oil & Gas, Inc. = v. Maxus=20 Exploration Co., 766 S.W.2d 264, 275=9676 (Tex. App.=97Amarillo 1988, writ = denied).

=20 Texas Mutual=92s evidence consisted of a urine test that = contained a=20 high number of cocaine metabolites supported by Dr. Avery=92s = testimony that=20 based upon the high number of metabolites, Havard was intoxicated = at the=20 time of the accident. = Avery=20 also testified that based upon his analysis of the EMS report from the accident, Havard had a = variation=20 in pulse and blood pressure consistent with someone under the = influence of=20 cocaine. Texas = Mutual further=20 presented evidence that, when asked by EMS about the drugs he had taken, Havard = responded=20 with no-doze, ephedra, and =93meth.=94 =20 The urinalysis, however, showed no indication of = amphetamines or=20 methamphetamines.

=20 In contrast, Havard presented his own expert, Lykissa. According to Lykissa=92s = tests, the=20 number of metabolites in Havard=92s urine was much lower than the = amount=20 found by Avery. In = addition,=20 Lykissa performed a test on Havard=92s hair, which was negative = for=20 cocaine. Lykissa = conceded,=20 however, that cocaine would only be present in a hair sample if = the donor=20 was a habitual user. = Lykissa=20 testified that a positive urine test is not evidence that Havard = was under=20 the influence of cocaine at the time of the accident because it = does not=20 pinpoint when he may have been intoxicated. Lykissa stated that he = has seen=20 positive urine tests from people twenty-two days after their last = dose of=20 cocaine. Lykissa = further=20 testified that based on his review of Havard=92s EMS records,=20 Harvard did not show any physiological signs of intoxication, such = as=20 increased blood pressure, irregular pulse, or dilated pupils = related to=20 stimulant intoxication.

=20 Havard, testifying on his own behalf, denied having ever = used=20 cocaine. He = outlined the=20 steps he took in order to pick up his load, which included = navigating his=20 18-wheel truck around sharp corners and positioning it on a narrow = loading=20 area, entering numerous digital key pad codes, calculating the = correct=20 amount of asphalt to load into the truck, communicating with = personnel at=20 the loading station, and travelling thirty-three miles before the=20 accident. Havard = supported=20 his testimony with an affidavit from an employee that was on-site = at the=20 loading station, who averred that Havard did not appear to be = intoxicated=20 on the day of the accident. Havard also denied having = used=20 methamphetamines.

=20 As the sole judge of the credibility of the witnesses, the = trial=20 court was free to accept Havard=92s and Lykissa=92s testimony that = he had=20 normal use of his mental and physical faculties at the time of the = accident. See Southwestern Bell Media, = Inc. v.=20 Lyles, 825 = S.W.2d=20 488, 493 (Tex. App.=97Houston [1st = Dist.] 1992, writ=20 denied) (the trial court, as fact-finder, is sole judge of = credibility of=20 witnesses and may take into consideration all facts and = surrounding=20 circumstances in connection with testimony of each witness and = accept or=20 reject all or any part of testimony). We hold that the = evidence is=20 factually sufficient to support the trial court=92s=20 finding.

Sanctions

=20 In its final issue, Texas Mutual seeks an adjudication that = Havard=20 was intoxicated as a sanction against Havard=92s counsel for = submitting=20 medical records to the TWCC that left out the word =93meth=94 in = the medical=20 record reporting Havard=92s statement on the day of the accident = to EMS=20 personnel. After = conducting a=20 hearing, the trial court refused to award sanctions. On appeal, Texas Mutual = asks that=20 we find that the trial court abused its discretion and impose the=20 sanction.

A trial court=92s = ruling on a=20 motion for sanctions is reviewed under an abuse of discretion=20 standard. Cire v. Cummings, 134 = S.W.3d 835,=20 838 (Tex. 2004) (citing Downer v. Aquamarine = Operators,=20 Inc., 701 S.W.2d 238, 241 (Tex. = 1985)). =93The test for an abuse = of=20 discretion is not whether, in the opinion of the reviewing court, = the=20 facts present an appropriate case for the trial court=92s action, = but=20 =91whether the court acted without reference to any guiding rules = and=20 principles.=92=94 = Cire, 134 S.W.3d at = 838=9639=20 (quoting Downer, 701 = S.W.2d at=20 241). The choice of = discovery=20 sanctions is within the discretion of the trial court. TransAm. Natural Gas = Corp. v. Powell, 811 S.W.2d = 913, 917=20 (Tex. = 1991). The trial court=92s = ruling should be=20 reversed only if it was arbitrary or unreasonable. Cire, 134 S.W.3d at = 839. A trial court may not = impose=20 sanctions that are more severe than necessary to satisfy = legitimate=20 purposes. = Id. Sanctions that are =93so = severe that=20 they preclude presentation of the merits of the case should not be = assessed absent a party=92s flagrant bad faith or counsel=92s = callous=20 disregard for the responsibilities of discovery under the = rules.=94 TransAm. Natural Gas = Corp., 811=20 S.W.2d at 918.

Pursuant to federal = regulations=20 promulgated under the Health Insurance Portability and = Accountability Act=20 of 1996 (HIPAA), Havard=92s counsel requested that Havard=92s = medical records=20 be changed to reflect that Havard never stated that he had used = =93meth=94 or=20 methamphetamines. = The=20 hospital sent a letter to Havard confirming their intent to change = the=20 reference in the record from =93methamphetamine=94 to = =93meth.=94 The records that Havard = admitted=20 at both hearings in front of the TWCC deleted all references to = Havard=92s=20 use of =93meth.=94 = Texas Mutual=20 moved for sanctions against Havard=92s counsel for improperly = deleting those=20 references. Texas = Mutual=20 requested that the trial court determine that Havard did not bring = =93their=20 claim in good faith, that [Havard] should be sanctioned, [Texas = Mutual]=20 should be awarded damages and attorney=92s fees and as a result of = this=20 conduct, a Take Nothing Judgment be entered.=94 Havard responded that = the deletion=20 was an inadvertent clerical error, and that a hospital employee = copied the=20 wrong file for use in the administrative hearings. In addition, Havard = contends that=20 he did not receive a legal or factual advantage because the issue = in the=20 case was Havard=92s use of cocaine, and not his use of = methamphetamines for=20 which the urinalysis test was negative. Following an evidentiary = hearing,=20 the trial court denied Texas Mutual=92s request for=20 sanctions.

Providing incorrect = records to=20 an administrative tribunal is a serious matter. In reviewing Texas = Mutual=92s=20 sanctions request, however, the trial court could have considered = that=20 Havard=92s counsel admitted the error to the TWCC, and the = relative harm=20 caused by the error. = In=20 addition, the trial court had the unique ability to evaluate the = demeanor=20 of the witnesses, to test the explanation of counsel, and to = determine=20 whether the failure to send the proper records was due to neglect = or to=20 bad faith. Because = Texas=20 Mutual=92s sanctions motion turns on these considerations, the = trial judge=20 was in a better position to evaluate it. We hold that the trial = court did=20 not abuse its discretion in refusing to sanction=20 Havard.

Conclusion

=20 We hold that the evidence is legally and factually = sufficient to=20 support the trial court=92s findings. =20 We further hold that the trial court did not err in = refusing to=20 impose sanctions. =20

Jane=20 Bland

&nbs= p; = ; = &= nbsp; &n= bsp; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Jennings and Bland.