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Click here for the full text of this decision FACTS:In this workers’ compensation case, the trial court entered judgment in favor of the appellant, William E. Hinson. While employed by Constructors and Erectors (C & E) and working with fellow employees as a steel connector on a raising gang at a paper mill in Lufkin, Hinson fell from a steel structure. Hinson testified at trial that he used marijuana two to three times per week, and as much as daily. Hinson testified that when he began working as a steel connector, he continued to use marijuana regularly but did not normally use marijuana on weekdays. Hinson testified that he never used marijuana while on a job, or before he went to a job. Hinson testified that when he did smoke marijuana after work, he smoked, on average, three to five joints. Hinson denied that smoking three to five joints made him drunk or affected how he felt the next morning. Hinson testified that the marijuana relaxed him mentally, but he denied that marijuana ever affected him physically. Hinson testified that he used marijuana on a regular basis for four years prior to his accident. He denied smoking any marijuana during the two days prior to the incident. On the morning of the incident, a Wednesday, Hinson testified that he felt alert and denied that he suffered from any physical or mental impairment. Hinson admitted that the urine sample taken after the accident tested positive for marijuana. Hinson presented no expert witness testimony regarding whether his marijuana use would have caused mental or physical impairment. Hinson was the sole witness called to testify on his behalf. American Interstate Insurance Co., the appellee, called three witnesses to testify before the jury. Its first witness, Elmo Hall Jr., testified that he was C & E’s foreman on the job at the time of the accident. Hall testified that Hinson’s failure to tie off a safety lanyard violated the company’s safety policy, and the violation was not normal behavior. But Hall gave no testimony that might have evidenced any impairment in Hinson’s normal use of his mental or physical faculties. Robert Marsh, a safety director, was American Interstate’s second witness. He concluded that the cause of the accident was Hinson’s failure to use his safety lanyard. Marsh identified the post-accident urinalysis, and testified the urinalysis showed 264 nanograms per milliliter of marijuana metabolite in Hinson’s urine. The third witness called by American Interstate was Dr. Thomas Kurt, a physician specializing in medical toxicology. He testified that based on reasonable medical probability, Hinson was intoxicated under the meaning of the term as defined by the Labor Code at the time of his injury. Kurt agreed that he had never conducted a scientific study on the effects of marijuana. Kurt testified that he did not need to know Mr. Hinson’s normal physical or mental capacity, and, despite the absence of a blood test, he stated that he could base an opinion regarding Hinson’s impaired capacity on the urine test results and Hinson’s history of marijuana use. Hinson’s credibility regarding the accuracy of his history of marijuana use was a hotly contested evidentiary issue. The jury, after being presented the evidence in the trial, found that Hinson was not intoxicated at the time of his injury. American Interstate appealed. HOLDING:Affirmed. The workers’ compensation laws of Texas prohibit the recovery of compensation where, at the time of the injury, the employee is intoxicated. The court stated that because his claim had been denied at the administrative level, Hinson had the burden of proving by a preponderance of the evidence that he was not intoxicated at the time of the accident. In cases involving marijuana or controlled substances, there is no per se level or test defined by the statute that establishes when a person is intoxicated. The statutory standard for marijuana is relatively subjective because intoxication is defined as “not having the normal use of mental or physical faculties” because of one’s voluntarily using marijuana. American Interstate argues that the expert testimony of Kurt is conclusive on whether Hinson was intoxicated at the time of the injury. American Interstate asserts that expert testimony is generally necessary in a case involving intoxication due to the ingestion of marijuana. The court disagrees and holds that although the evidence that Hinson had normal use of his faculties was controverted, the jury was entitled to believe Hinson’s testimony, together with the other circumstantial evidence that was consistent with Hinson’s contention that he was not mentally or physically impaired at the time of the accident. In addition to Hinson’s testimony, the record included testimony about the work activities Hinson successfully completed prior to his fall, including evidence that Hinson worked at heights requiring him to walk on steel beams while carrying up to 80 pounds. As to the strength of Kurt’s expert testimony, the court notes that Kurt acknowledged that he had no baseline on Hinson to establish what was normal for Hinson when Hinson had no marijuana in his body. Also, Kurt did not define normal use of mental faculties. In absence of any scientific evidence conclusively establishing normal use, the court finds that the jury was free to determine what would constitute normal use in Hinson’s case. The court determines that Kurt’s testimony does not conclusively establish that Hinson was intoxicated due to his marijuana use at the time of the accident. The court concludes that a reasonable jury could have reasonably disregarded Kurt’s testimony and the urinalysis test result in reaching its conclusion that Hinson was not intoxicated at the time of his injury. OPINION:Horton, J., Kreger and Horton, JJ. DISSENT:Gaultney, J., dissenting. “Because I believe the evidence is factually insufficient to support the jury verdict, I would reverse and remand the case for a new trial. “

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