Opinion Issued March 6, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00268-CV
TEXAS MUTUAL INSURANCE COMPANY, Appellant
V.
RICHARD HAVARD, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 33310
MEMORANDUM OPINION
This appeal arises from a worker’s compensation case in which Texas Mutual Insurance Company disputes the compensability of Richard Havard’s injuries. After a bench trial, the trial court found that Havard was not intoxicated at the time of his injury, and thus, it was compensable. In three issues, Texas Mutual contends that the evidence is legally and factually insufficient, and that the trial court erred in refusing to sanction Havard.
Background
In April 2004, Pneu-Rock Transportation employed Richard Havard as a truck driver. Texas Mutual insured Pneu-Rock for worker’s compensation claims. Havard had worked as a truck driver for more than twenty years, and had been working for Pneu-Rock since 2000. Havard had been randomly drug tested prior to working for Pneu-Rock, and also by Pneu-Rock in 2000, 2001, and December 2003. All of those tests were negative. On the morning of April 8, 2004, Havard was scheduled to pick up a load of asphalt near the Houston Ship Channel. He went to bed at 8:00 p.m. and woke up at 1:00 am. He admitted to taking no-doze and mini-ephedra with his morning coffee.
Upon arriving at the pick-up facility, Havard inputted numerous identification numbers on the control box to gain entry. Once inside, Havard maneuvered his semi-truck on a narrow loading ramp, with approximately three or four inches on each side before a two-foot drop. Havard then loaded the asphalt, which required him to determine the amount of gallons of asphalt he needed to prevent being overweight, and to attach a loading spout. After Havard had fully loaded the tanker, Havard filed his paperwork and left the facility. A worker at the facility averred that Havard did not appear to be intoxicated.
After driving approximately thirty miles on the freeway, Havard choked on a sip of his coffee and lost control of his truck. The truck ran into a guardrail, and Havard was ejected from the cab, falling 10-15 feet below. The first EMS responder asked Havard whether he had taken drugs, and Havard replied that he had taken no-doze, ephedra, and “meth.” An air ambulance transported Havard to Memorial Hermann Hospital in Houston. Approximately thirty-five hours after the accident, medical personnel obtained a urine sample from Havard through a catheter, while he was unconscious. The urine sample tested positive for benzoylecgonine, a cocaine metabolite.
Following the positive test, Texas Mutual denied compensability, and Havard invoked his administrative remedies. At the Contested Case Hearing (“CCH”) in November 2004, the parties presented evidence on the issue of intoxication, which included testimony from experts for both sides concerning the interpretation of a positive urine test, as well as testimony from Havard and a facility worker recounting the events on the day of the accident. The CCH officer determined that Havard had sustained a compensable injury and was not intoxicated at the time of his injuries. Texas Mutual appealed the decision to the Appeals Panel, who affirmed the decision of the CCH officer by operation of law. Texas Mutual then sought judicial review. After a bench trial, the trial court affirmed the decision of the appeals panel, and rendered judgment in favor of Havard.
Sufficiency of the Evidence
Texas Mutual contends that the evidence is legally and factually insufficient to support a finding that Havard was not intoxicated at the time of his accident. In support of its contention, Texas Mutual asserts that the trial court applied an incorrect presumption of intoxication under the Texas Labor Code.
Standard of Review
In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, writ denied). When challenged, findings of fact are not conclusive if, as here, there is a complete reporter’s record. Id. When there is a reporter’s record, the trial court’s findings of fact are binding only if supported by the evidence. Id. If the findings are challenged, we review the sufficiency of the evidence supporting the findings by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
If a party attacks the legal sufficiency of an adverse finding on an issue as to which it bears the burden of proof, then it must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). If no evidence exists to support the finding, we examine the entire record to determine if the contrary proposition is established as a matter of law. Id.; see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (test for legal sufficiency is whether evidence at trial would enable reasonable and fair-minded people to reach verdict under review).
Worker’s Compensation Act Appeals
The Texas Supreme Court has held that a Texas Workers’ Compensation Commission (TWCC) Appeals Panel’s final decision may be appealed to the courts under a “modified de novo review.” Texas Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504, 530 (Tex. 1995). Under this modified de novo review, all issues regarding compensability of the injury may be tried by the jury or court. Id. at 528; see Tex. Lab. Code Ann. §§ 410.301, .304 (Vernon 2006). Modified de novo review means: (1) the trial court is informed of the TWCC Appeals Panel’s decision, (2) evidence of the extent of impairment is limited to that presented to the TWCC, unless the court makes a threshold finding that the claimant’s condition has substantially changed, and (3) the court is required to adopt the specific impairment rating arrived at by one of the physicians in the case. Tex. Lab. Code Ann. §§ 410.304, .306–.307; Garcia, 893 S.W.2d at 528. The court, although informed of the TWCC’s decision, is not required to accord it any particular weight. Id. at 515. The fact finder does not review the Appeals Panel’s decision for “reasonableness,” but rather independently decides the issues by a preponderance of the evidence. Id. at 531. The party appealing the TWCC’s ruling bears the burden of proof by a preponderance of the evidence. Tex. Lab. Code Ann. § 410.303. Because Texas Mutual’s claim was denied at the administrative level, it had the burden of proving by a preponderance of the evidence that Havard was intoxicated at the time of the accident. See id.
Intoxication
The workers’ compensation laws prohibit the recovery of compensation where, at the time of injury, an employee is intoxicated. Tex. Lab. Code Ann. § 406.032(1)(A) (Vernon 2006).
“Intoxication” means the state of:
(1) having an alcohol concentration to qualify as intoxicated under Section 49.01(2), Penal Code; or
(2) not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of:
(A) an alcoholic beverage, as defined by Section 1.04, Alcoholic Beverage Code; [or]
(B) a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code.
Id. § 401.013(a). Cocaine is a controlled substance included under § 481.002. Tex. Health & Safety Code Ann. § 481.002 (Vernon 2006).
In cases involving controlled substances, there is no level or test defined by the statute that establishes per se if a person has lost use of his or her physical and mental faculties. Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 115 (Tex. App.—Beaumont 2005, pet. denied). The statutory standard for cocaine is relatively subjective. See id.; see also Tex. Lab. Code Ann. § 401.013(a) (2).
The Texas Labor Code includes a presumption that states: “[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.” Tex. Lab. Code Ann. § 401.013(c). In enacting the amendment that created §401.013(c) in 2005, the Texas Legislature codified former case law. See TWCC App. No. 021751, 2002 WL 31115380, Aug. 26, 2002 (employee is presumed sober, but when carrier rebuts presumption of sobriety with probative evidence of intoxication, burden shifts to employee to prove he was not intoxicated at time of injury); TWCC App. No. 032618, 2003 WL 23011731, Nov. 19, 2003; see also TWCC App. No. 012208, 2001 WL 1472150, Oct. 23, 2001 (positive test for controlled substance will generally shift burden to claimant to prove he was not intoxicated at time of injury). Texas Mutual contends that the trial court did not apply this presumption.
We find no indication in the record that either the TWCC or the trial court refused to apply the rebuttable presumption in this case that was embodied in prior case law. To the contrary, as explained in TWCC Appeal No. 021751, an employee is presumed sober; however, when the carrier rebuts the presumption of sobriety with probative evidence of intoxication, the burden shifts to the employee to prove that he was not intoxicated at the time of the injury. 2002 WL 31115380, TWCC App. No. 032618, 2003 WL 23011731; see also TWCC App. No. 012208, 2001 WL 1472150 (positive test for controlled substance will generally shift burden to claimant to prove he was not intoxicated at time of injury). The trial court’s findings of fact and conclusions of law do not reveal any refusal to place the proper burden on the claimant. In analyzing Texas Mutual’s challenges to the legal sufficiency, we review whether the Appeals Panel and the trial court reasonably could have concluded that Havard rebutted the presumption. Ultimately, in appeals from the TWCC, the burden is on the party who did not prevail to prove that no valid basis exists for the decision of the commission and the trial court. See Tex. Lab. Code Ann. § 410.303 (b) (Vernon 2006).
Legal Sufficiency
Texas Mutual contends that the evidence is legally insufficient to support a finding that Havard was not intoxicated at the time of the accident. Texas Mutual’s evidence consisted of the positive urine test and an expert, Dr. Avery, who testified that based on the urine test, Havard was intoxicated at the time of the accident. To controvert that evidence, Havard presented testimony at trial from toxicologist, E. Lykissa, who testified that the positive urine test does not prove that Havard was suffering from the effects of cocaine when he wrecked the truck. According to Lykissa, the urine test only proves that at some point in time, Havard had ingested cocaine. In addition, Havard offered evidence of a second urine test, in which the amount of cocaine metabolites was significantly lower, as well as a hair test, which was negative for cocaine. Havard testified that he had never used cocaine and was not intoxicated at the time of the accident. He also described everything he did the morning of the accident, which included maneuvering his semi-truck around tight corners and onto a narrow platform, as well as entering numerous codes and hooking up equipment to receive his load. Furthermore, Havard drove over thirty miles, without incident, prior to the accident. A worker at the facility where Havard loaded his truck averred that Havard did not appear to be intoxicated.
We conclude that a reasonable fact finder could conclude that Havard was not intoxicated at the time of his injury as it is defined in the Labor Code. The scientific and expert evidence introduced during the trial in this case is not conclusive as a matter of law that Havard was intoxicated at the time of the accident, and the evidence does not meet the threshold in the Labor Code at which such evidence is not rebuttable under section 401.013(a)(2)(b). Simply put, Havard rebutted the presumption of intoxication to the satisfaction of the CCH officer, the TWCC Appeals Panel, and the trial court. We hold that the evidence is legally sufficient to support the trial court’s finding.
Factual Sufficiency
Texas Mutual also asserts that the evidence is factually insufficient to support the verdict. Because Texas Mutual had the burden of proving Havard was intoxicated, Texas Mutual must show that the verdict is against the great weight and preponderance of the evidence. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275–76 (Tex. App.—Amarillo 1988, writ denied).
Texas Mutual’s evidence consisted of a urine test that contained a high number of cocaine metabolites supported by Dr. Avery’s testimony that based upon the high number of metabolites, Havard was intoxicated at the time of the accident. Avery also testified that based upon his analysis of the EMS report from the accident, Havard had a variation in pulse and blood pressure consistent with someone under the influence of cocaine. Texas Mutual further presented evidence that, when asked by EMS about the drugs he had taken, Havard responded with no-doze, ephedra, and “meth.” The urinalysis, however, showed no indication of amphetamines or methamphetamines.
In contrast, Havard presented his own expert, Lykissa. According to Lykissa’s tests, the number of metabolites in Havard’s urine was much lower than the amount found by Avery. In addition, Lykissa performed a test on Havard’s hair, which was negative for cocaine. Lykissa conceded, however, that cocaine would only be present in a hair sample if the donor was a habitual user. Lykissa testified that a positive urine test is not evidence that Havard was under the influence of cocaine at the time of the accident because it does not pinpoint when he may have been intoxicated. Lykissa stated that he has seen positive urine tests from people twenty-two days after their last dose of cocaine. Lykissa further testified that based on his review of Havard’s EMS records, Harvard did not show any physiological signs of intoxication, such as increased blood pressure, irregular pulse, or dilated pupils related to stimulant intoxication.
Havard, testifying on his own behalf, denied having ever used cocaine. He outlined the steps he took in order to pick up his load, which included navigating his 18-wheel truck around sharp corners and positioning it on a narrow loading area, entering numerous digital key pad codes, calculating the correct amount of asphalt to load into the truck, communicating with personnel at the loading station, and travelling thirty-three miles before the accident. Havard supported his testimony with an affidavit from an employee that was on-site at the loading station, who averred that Havard did not appear to be intoxicated on the day of the accident. Havard also denied having used methamphetamines.
As the sole judge of the credibility of the witnesses, the trial court was free to accept Havard’s and Lykissa’s testimony that he had normal use of his mental and physical faculties at the time of the accident. See Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (the trial court, as fact-finder, is sole judge of credibility of witnesses and may take into consideration all facts and surrounding circumstances in connection with testimony of each witness and accept or reject all or any part of testimony). We hold that the evidence is factually sufficient to support the trial court’s finding.
Sanctions
In its final issue, Texas Mutual seeks an adjudication that Havard was intoxicated as a sanction against Havard’s counsel for submitting medical records to the TWCC that left out the word “meth” in the medical record reporting Havard’s statement on the day of the accident to EMS personnel. After conducting a hearing, the trial court refused to award sanctions. On appeal, Texas Mutual asks that we find that the trial court abused its discretion and impose the sanction.
A trial court’s ruling on a motion for sanctions is reviewed under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)). “The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but ‘whether the court acted without reference to any guiding rules and principles.’” Cire, 134 S.W.3d at 838–39 (quoting Downer, 701 S.W.2d at 241). The choice of discovery sanctions is within the discretion of the trial court. TransAm. Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991). The trial court’s ruling should be reversed only if it was arbitrary or unreasonable. Cire, 134 S.W.3d at 839. A trial court may not impose sanctions that are more severe than necessary to satisfy legitimate purposes. Id. Sanctions that are “so severe that they preclude presentation of the merits of the case should not be assessed absent a party’s flagrant bad faith or counsel’s callous disregard for the responsibilities of discovery under the rules.” TransAm. Natural Gas Corp., 811 S.W.2d at 918.
Pursuant to federal regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Havard’s counsel requested that Havard’s medical records be changed to reflect that Havard never stated that he had used “meth” or methamphetamines. The hospital sent a letter to Havard confirming their intent to change the reference in the record from “methamphetamine” to “meth.” The records that Havard admitted at both hearings in front of the TWCC deleted all references to Havard’s use of “meth.” Texas Mutual moved for sanctions against Havard’s counsel for improperly deleting those references. Texas Mutual requested that the trial court determine that Havard did not bring “their claim in good faith, that [Havard] should be sanctioned, [Texas Mutual] should be awarded damages and attorney’s fees and as a result of this conduct, a Take Nothing Judgment be entered.” Havard responded that the deletion was an inadvertent clerical error, and that a hospital employee copied the wrong file for use in the administrative hearings. In addition, Havard contends that he did not receive a legal or factual advantage because the issue in the case was Havard’s use of cocaine, and not his use of methamphetamines for which the urinalysis test was negative. Following an evidentiary hearing, the trial court denied Texas Mutual’s request for sanctions.
Providing incorrect records to an administrative tribunal is a serious matter. In reviewing Texas Mutual’s sanctions request, however, the trial court could have considered that Havard’s counsel admitted the error to the TWCC, and the relative harm caused by the error. In addition, the trial court had the unique ability to evaluate the demeanor of the witnesses, to test the explanation of counsel, and to determine whether the failure to send the proper records was due to neglect or to bad faith. Because Texas Mutual’s sanctions motion turns on these considerations, the trial judge was in a better position to evaluate it. We hold that the trial court did not abuse its discretion in refusing to sanction Havard.
Conclusion
We hold that the evidence is legally and factually sufficient to support the trial court’s findings. We further hold that the trial court did not err in refusing to impose sanctions.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.