PRESENCE OF COCAINE IN DECEASED’S SYSTEM NOT ENOUGH TO SUPPORT DENIAL OF WORKER’S COMP ON INTOXICATION GROUNDS

The Texas First Court of Appeals in Houston held last Thursday that non-expert testimony was sufficient to support a trial court’s finding that an insured was not intoxicated at the time of the accident that killed him, even though post-mortem testing found cocaine in the deceased’s system.  In Dallas National Insurance Co. v. Lewis, No. 01-10-00528-CV (Tex. App.—Houston [1st Dist.] June 16, 2011) (Westlaw citation not yet available), a shuttle bus driver who died when his vehicle caught fire was found to have cocaine in his blood stream.  The worker’s compensation carrier rejected the claim based on the statutory provision  that  a  carrier  is  not  liable  for  compensation  if  the  employee’s  injury  occurred  while  the employee was intoxicated.

The court found that the lay witness testimony of the deceased’s supervisor was sufficient evidence for a finding that the deceased was not intoxicated at the time of his death.  An expert who testified at trial that the deceased had a “small amount” of cocaine in his system also testified that the amount was consistent with the behavior described by the supervisor.  This evidence was held to be sufficient to uphold the trial court’s finding that the deceased “had the normal use of his mental and physical faculties” and was not intoxicated when he died.