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A Texas appellate court affirmed a trial court’s decision that a truck driver’s death in a vehicular accident did not arise out of and in the course of the employment where an autopsy report revealed the presence of THC, the active ingredient in marijuana, in the driver’s blood and urine tests. The guardian ad litem had presented an affidavit and letter from a physician that challenged the validity of the post-mortem toxicological testing, but produced no other evidence to rebut the intoxication presumption found in Tex. Lab. Code Ann. § 401.013(c). The court said the physician’s affidavit did not speak to the issue. Under the statute, once the existence of the controlled substance was detected in the blood or urine, there arose a rebuttable presumption that the person was intoxicated and did not have the normal use of mental or physical faculties. At that point, the burden shifted to the employee’s representative to prove that he or she was not intoxicated at the time of the accident. The court continued, saying that the rebuttable presumption was in place, regardless of whether it was founded on medically and toxicologically sound theory. The propriety of the presumption was not before the court; it was tasked only with studying the record for evidence that the driver was not intoxicated at the time of the motor vehicle accident. No evidence rebutted the presumption, so the trial court’s decision was appropriate.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.
See Denham v. Texas Mut. Ins. Co., 2015 Tex. App. LEXIS 7281 (July 15, 2015) [2015 Tex. App. LEXIS 7281 (July 15, 2015)]
See generally Larson’s Workers’ Compensation Law, § 36.03 [36.03]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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