                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-14-00435-CV


              ASHLEY DENHAM AS PARENT AND LEGAL GUARDIAN
                   OF F.L.J.B., A MINOR CHILD, APPELLANT

                                           V.

                TEXAS MUTUAL INSURANCE COMPANY, APPELLEE

                           On Appeal from the 47th District Court
                                   Potter County, Texas
               Trial Court No. 98,186-A, Honorable Dan L. Schaap, Presiding

                                     July 15, 2015

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Ashley Denham, as parent and legal guardian of F.L.J.B., her minor daughter,

appeals the trial court’s summary judgment in favor of Texas Mutual Insurance

Company by which Denham takes nothing in her worker’s compensation claim on

behalf of her minor daughter. We will affirm.
                               Factual and Procedural History


          Donnie Lee Burris was employed by Panhandle Fire Protection, LLC. On August

4, 2008, Burris died in a motor vehicle accident when the company truck he was driving

crashed while en route to a job site in New Mexico. Panhandle Fire Protection had a

worker’s compensation policy with Texas Mutual Insurance Company. After the fatal

accident, an autopsy was performed on Burris, which included blood and urine tests for

intoxicants.    The results of those tests revealed the presence of THC, the active

ingredient in marijuana.


          Ashley Denham, as parent and legal guardian of Burriss’s minor child, F.L.J.B.,

sought death benefits for the child.     Texas Mutual denied benefits, pointing to the

evidence that at the time of the accident Burris was intoxicated and also maintaining

that Burriss was not in the course and scope of his employment at the time of the fatal

injury.


          Following a contested case hearing in which Denham prevailed on the course-

and-scope-of-employment issue, Texas Mutual appealed the decision to the Appeals

Panel of the Division of Worker’s Compensation. The Appeals Panel remanded the

cause back to the hearing officer to determine the intoxication issue. On remand, the

hearing officer concluded that Burris was in the course and scope of his employment

and was not in a state of intoxication at the time of the accident. Texas Mutual again

appealed the matter to the Appeals Panel, which reversed the hearing officer’s

conclusion that Burriss was not intoxicated at the time of the accident. Based on the

blood and urine test results showing the presence of THC, the Appeals Panel rendered


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judgment that Burriss was, in fact, intoxicated at the time of his fatal injury and that,

therefore, Texas Mutual was relieved of liability.


       Denham sought judicial review of that decision by the 47th District Court in

December 2009. Following a nearly five-year period of inactivity, Texas Mutual filed its

no-evidence motion for summary judgment, contending, inter alia, that Denham failed to

present evidence that Burriss was not intoxicated at the time of the claimed injury. In

response to Texas Mutual’s no-evidence motion for summary judgment, Denham

submitted an affidavit and letter from a physician which challenged the validity of the

post-mortem toxicological testing that showed THC in Burriss’s system.


       The trial court granted Texas Mutual’s no-evidence motion for summary

judgment and rendered a take-nothing judgment in favor of the insurance company.

Denham appeals to this Court, contending that the trial court erred when it granted

Texas Mutual’s no-evidence motion for summary judgment.


                                    Procedural Posture


       A Division of Workers’ Compensation Appeals Panel’s final decision may be

appealed to the courts under a modified de novo review. See Tex. Workers’ Comp.

Comm’n v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995); Bituminous Fire & Marine Ins. Co.

v. Ruel, No. 07-12-00507-CV, 2014 Tex. App. LEXIS 6093, at *8 (Tex. App.—Amarillo

June 4, 2014, pet. denied) (mem. op.). Under this modified de novo review, all issues of

compensability may be tried by a jury or court. See Garcia, 893 S.W.2d at 515; see

generally TEX. LAB. CODE ANN. §§ 410.301–.304 (West 2015). Although the court is

informed of the Appeals Panel’s decision, the trial court is not required to accord it any

                                             3
particular weight. See Garcia, 893 S.W.2d at 515; see also TEX. LAB. CODE ANN. §

410.304.     The fact-finder does not review the Appeals Panel’s decision for

“‘reasonableness,’ but rather independently decides the issues by a preponderance of

evidence.” Garcia, 893 S.W.2d at 531. The party appealing the Appeals Panel’s ruling

bears the burden of proof by a preponderance of evidence. See TEX. LAB. CODE ANN. §

410.303. That being so, because her claim was denied at the administrative level,

Denham bore the burden at the trial court level of proving by a preponderance of

evidence that Burriss was not intoxicated at the time of the fatal accident. See id.


                                    Standard of Review


       A no-evidence motion for summary judgment is essentially a motion for a pretrial

directed verdict. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.

2003). After an adequate time for discovery, a party without the burden of proof may,

without presenting evidence, seek summary judgment on the ground that there is no

evidence to support one or more essential elements of the non-movant’s claim or

defense. TEX. R. CIV. P. 166a(i).


       Because a no-evidence summary judgment is essentially a pretrial directed

verdict, we apply the same legal sufficiency standard in reviewing a no-evidence

summary judgment as we apply in reviewing a directed verdict. Chapman, 118 S.W.3d

at 750–51. So, when called on to review a no-evidence summary judgment, we review

the evidence presented by the motion and response in the light most favorable to the

party against whom the summary judgment was rendered, crediting evidence favorable

to that party if reasonable jurors could, and disregarding contrary evidence unless


                                            4
reasonable jurors could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582

(Tex. 2006) (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005), and

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002)).


       A no-evidence summary judgment is improper if the respondent brings forth more

than a scintilla of probative evidence to raise a genuine issue of material fact on a

challenged element. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172

(Tex. 2003); see TEX. R. CIV. P. 166a(i); Chapman, 118 S.W.3d at 751. “When the

evidence offered to prove a vital fact is so weak as to do no more than create a mere

surmise or suspicion of its existence, the evidence is no more than a scintilla and, in

legal effect, is no evidence.”    Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010)

(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Put another way,

a no-evidence point will be sustained when “(a) there is a complete absence of

evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact, (c) the evidence offered to

prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively

establishes the opposite of the vital fact.” Chapman, 118 S.W.3d at 751 (citing Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). More than a scintilla

of evidence exists if it would allow reasonable and fair-minded people to differ in their

conclusions. Forbes Inc., 124 S.W.3d at 172 (citing Chapman, 118 S.W.3d at 751, and

Havner, 953 S.W.2d at 711).




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                                      Applicable Law


      Under the Texas Workers’ Compensation Act, an insurance carrier is not liable

for compensation of benefits if an injury occurs while the employee is in a state of

intoxication. See TEX. LAB. CODE ANN. § 406.032(1)(A) (West 2015). In this context,

“intoxication” means the state of (1) having an alcohol concentration to qualify as

intoxicated under Section 49.01(2) of the Texas Penal Code or (2) not having the

normal use of mental or physical faculties resulting from voluntary ingestion of an

alcoholic beverage or a controlled substance under Section 481.002 of the Texas

Health and Safety Code. See id. at § 401.013(a)(1), (2)(A)–(B) (West 2015). Marijuana

is such a controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.002(5)

(West Supp. 2014); see also id. § 481.032 (West Supp. 2014) (identifying “marihuana”

as a Schedule I hallucinogenic substance).      Because this case does not involve a

question of blood-alcohol concentration, for our purposes, “intoxication” is defined as

the state of not having the normal use of mental or physical faculties due to voluntary

ingestion of marijuana into the body. See TEX. LAB. CODE ANN. § 401.013(a)(2)(B).


      Unlike alcohol consumption, there is no level or test defined by statute that

establishes per se if a person has lost use of his or her physical and mental faculties

due to the ingestion of a controlled substance. Am. Interstate Ins. Co. v. Hinson, 172

S.W.3d 108, 115 (Tex. App.—Beaumont 2005, pet. denied).             The standard for

marijuana is relatively subjective.      See id.; see also TEX. LAB. CODE ANN. §

401.013(a)(2). Thus, the issue in a workers’ compensation case involving the allegation

of intoxication by a controlled substance, like marijuana, is not whether the substance

was to some degree, however slight, in the claimant’s body at the time of the accident;

                                            6
rather, the issue is whether the claimant was physically or mentally impaired at the time

the accident occurred as a result of having ingested the controlled substance. Ruel,

2014 Tex. App. LEXIS 6093, at *10–11 (citing Hinson, 172 S.W.3d at 115, and Dallas

Nat’l Ins. Co. v. Lewis, No. 01-10-00528-CV, 2011 Tex. App. LEXIS 4564, at *13 (Tex.

App.—Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.)).


      When the insurance carrier shows the voluntary ingestion of any substance listed

under Section 401.013(a)(2)(B) based on a blood test or urine analysis, there arises “a

rebuttable presumption that a person is intoxicated and does not have the normal use of

mental or physical faculties.” See TEX. LAB. CODE ANN. § 401.013(c). “Generally, 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 or she was not intoxicated at the time of the accident.” Ruel, 2014 Tex.

App. LEXIS 6093, at *11. In the case at bar, because of the post-mortem blood and

urine test results showing marijuana in Burriss’s system, Denham was required to rebut

this statutory presumption and prove at trial by a preponderance of the evidence that

Burriss was not intoxicated at the time of the accident. See TEX. LAB. CODE ANN. §

410.303.


                                        Analysis


      We considered similar positions in Ruel, in which the injured claimant—whose

urine test revealed a byproduct of cocaine—bore the burden at the trial court of proving

by a preponderance of the evidence that he was not intoxicated at the time of the injury-

causing accident. See Ruel, 2014 Tex. App. LEXIS 6093, at *2, *9. The trial court in


                                           7
that case concluded that Ruel was not intoxicated at the time of the accident. Id. at *6.

The trial court had before it testimony from Ruel’s supervisor and coworker that Ruel

seemed “normal” and “fit for duty” the morning of the accident, Ruel’s own testimony

that he had ingested two lines of cocaine the Tuesday preceding the Friday morning

accident, and Ruel’s testimony that he had the normal use of mental and physical

faculties the morning of the accident. See id. at *3, *4. The insurance company also

presented testimony from its expert that the alcohol consumed by Ruel on Tuesday

amplified the effects of the cocaine such that Ruel was intoxicated on the morning of the

accident. See id. at *4–5. Ruel’s expert testified that bare results from urinalysis would

not be sufficient to lead to any conclusion regarding intoxication at a given time, that

more information would be needed to make such a conclusion. Id. at *5–6. He testified

that effects of cocaine vary from person to person and that those effects last only a few

hours.    Id. at *6.   Based on our review of the evidence, we concluded that “Ruel

rebutted the presumption of intoxication to the satisfaction of the jury and established by

a preponderance of the evidence that he was not intoxicated at the time of the accident”

and affirmed the trial court’s judgment. See id. at *13.


         Here, Denham presented an affidavit from Robert J. Phillips, D.O., who opined

that “the post[-]mortem drug levels found in [Burriss]’s body were totally invalid due to

the rapid redistribution from storage tissues.”    Phillips’s attached correspondence is

more detailed but still only speaks to the propriety of making a conclusion regarding

intoxication based on post-mortem testing. That is not the issue to consider; we must

consider the evidence that, at the time of the fatal accident, Burriss was not intoxicated.

We can find no such evidence. We acknowledge Phillips’s position on post-mortem


                                             8
toxicological results and the meaning that should or should not be assigned to them.

However, the rebuttable presumption of Section 401.013(c) was in place, regardless of

whether it is founded on medically and toxicologically sound theory.         That is, the

propriety of the presumption is not before us; we are tasked only with studying the

record for evidence that Burriss was not intoxicated at the time of the motor vehicle

accident. Unlike the case in Ruel, we find no evidence of Burriss’s state at the time of

the accident, nothing at all supporting a conclusion that he did, in fact, have the normal

use of his mental and physical faculties. See Sanchez v. State Office of Risk Mgmt.,

234 S.W.3d 96, 102 (Tex. App.—El Paso 2007, no pet.) (observing that “[t]he issue on

appeal is not whether [the employee] was intoxicated, but whether [the plaintiff]

presented evidence that [the employee] was not intoxicated”). We have no evidence

from Burriss’s passenger and, unfortunately, the deceased Burriss could not provide

any evidence regarding details of his ingestion or exposure to marijuana.


       In essence, Denham challenges the application of the presumption of intoxication

in the first place, presenting evidence that results from post-mortem analysis are invalid

and do not speak to the decedent’s level of intoxication at the time of the accident.

Regardless of the toxicological theory upon which it is based, Section 401.013(c)’s

rebuttable presumption was raised by the results of blood tests and urinalysis performed

on Burriss.      When that presumption came into play, Denham bore the burden of

rebutting that presumption by presenting evidence that Burriss was not intoxicated at

the time of the accident.      Philips’s affidavit, while it may very well espouse a

scientifically   sound   counterargument   to   Section   401.013(c)’s   presumption    of

intoxication, does not present evidence that Burriss was not intoxicated at the time of


                                            9
the accident. It merely challenges the presumption, imposed by statute, that was raised

by the test results showing the presence of marijuana in Burriss’s system. While such a

position may have its place in the debate on a topic in the medical and toxicological

communities, in the legal arena, this position presents no evidence that the decedent

was not intoxicated at the time of the fatal accident. And such was Denham’s burden to

bear in light of the presumption in place per statute. In the absence of such evidence,

the trial court did not err by granting Texas Mutual’s no-evidence motion for summary

judgment. We overrule Denham’s point of error.


                                      Conclusion


      Having overruled Denham’s point of error, we affirm the trial court’s judgment

that she take nothing. See TEX. R. APP. P. 43.2(a).




                                        Mackey K. Hancock
                                            Justice




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