Date: 06-16-2011

Case Style: Dallas National Insurance Company v. Edwina Lewis

Case Number: 01-10-00528-CV

Judge: Terry Jennings

Court: Texas Court of Appeals, First District on appeal from the 165th District Court Harris County

Plaintiff's Attorney: Robert W. Higgason, Robert W. Higgason and Michael L. Sprain

Defendant's Attorney: Jonathan L. Davenport

Description: Appellant, Dallas National Insurance Company (“Dallas National”), challenges the trial court’s judgment, entered after a bench trial, in favor of appellee, Edwina Lewis, Individually and as Next Friend of Bryant K. Lewis, reversing the decision of the Texas Department of Insurance (“TDI”)—Division of Workers’ Compensation Commission appeals panel. In two issues, Dallas National contends that the evidence is legally and factually insufficient to support the trial court’s finding that Bryant was not intoxicated at the time of his death and the trial court “incorrectly lent weight” to “lay opinion” testimony to support its judgment.

We affirm.

Background

Bryant, who worked the overnight shift as a shuttle bus driver and security guard at two neighboring hotels in Houston, died in May 2004 when the shuttle bus that he was driving caught fire. Dallas National, the workers’ compensation insurer, initially denied Lewis’s claim based upon the allegation that Bryant’s death was caused by the criminal act of a third person. Dallas National abandoned this allegation, but subsequently denied Lewis’s claim based upon the allegation that Bryant was intoxicated at the time of his death. Lewis appealed the decision to the TDI appeals panel, which found that Bryant’s “voluntary use of cocaine . . . deprived him of the normal use of his mental [and] physical faculties” and Bryant “was intoxicated at the time of his death.”

Lewis then filed the underlying lawsuit, seeking judicial review of the TDI appeals panel decision. See Tex. Lab. Code Ann. § 410.251 (Vernon Supp. 2010) (“A party that has exhausted its administrative remedies under this subtitle and that is aggrieved by a final decision of the appeals panel may seek judicial review . . . .”). Lewis sought a judgment reversing the TDI appeals panel’s findings that Bryant did not have the normal use of his mental and physical faculties and was intoxicated at the time of his death.

At trial, Lewis presented the testimony of Bryant’s former co-worker Beatrice Walker, expert witness Dr. Ernest Lykissa, and Dallas National’s representative Francis Walsh. Walker testified that she worked the overnight shift as the “night auditor” at the same hotel as Bryant on the evening of his death. During this shift, she observed or spoke with Bryant every ten to fifteen minutes. On the evening of Bryant’s death, at approximately 12:00 a.m., Walker had a cup of coffee with Bryant inside the hotel, and the two engaged in personal conversation for thirty minutes, discussing church, relationships, and jobs. Walker described Bryant’s mood as “uplifting,” and she noted that there was “nothing abnormal” about his physical abilities. Walker continued to observe and talk with Bryant during the night as he was “coming back and forth,” and she also observed his driving. As Bryant was “making the rounds in the shuttle bus” during the shfit, she would walk outside, and Bryant would say “a few words” about where he was going. At some point later, Bryant left to pick up two elderly women from an airport. Walker noted that these two women had subsequently written letters to the hotel complimenting Bryant’s manners and his treatment of them while driving them in the shuttle bus.

When asked how recently she had spoken to Bryant before he was killed in the shuttle bus fire, Walker stated,

Oh, it had to be right, — because like I said, we were, we talked. He come to the door. We talked at the door. He says, I’m going to do my rounds . . . This has to be the time that—right—I don’t even know if it was ten or fifteen minutes, because when I received the phone . . . call saying that there was a fire, a vehicle that was burning in the parking lot, I automatically dialed Bryant back.



She again confirmed that she had spoken with and seen Bryant “ten to fifteen” minutes before the fire, although she later said that the time frame could have been “fifteen or twenty” minutes. Walker explained that there was nothing about Bryant’s driving that evening that gained her attention. He drove the shuttle bus in an ordinary fashion, he did not seem to have any problems understanding instructions that she had given him, and there was “no indication” that he was “not his normal self” throughout the shift and before the fire. Walker had also seen Bryant walking around the hotel property twenty minutes before the fire, there was nothing peculiar about the way he was walking, he did not have any “odd gestures,” he was cheerful, laughing, and playing, and his “physical demeanor” was no different than usual.

Walker noted that it would have been her responsibility to take care of any situation with an employee working while intoxicated, she had the authority to take the keys away from a shuttle bus driver like Bryant, and she had taken keys away from another shuttle driver on a prior occasion. She explained that she had no reason to take away Bryant’s keys during the overnight shift and the night auditor in the neighboring hotel did not contact her with any concerns about Bryant’s conduct during the overnight shift.

Walker agreed that she had no medical training, but she explained that she did have personal family experience in recognizing individuals intoxicated by the use of alcohol and narcotics, including cocaine. She also stated that she had observed Bryant at a close range during their conversation during the shift and for periods of up to five minutes at a time when she stood outside and watched Bryant walk the property. Walker noted that Bryant was not any more talkative than usual.

Walsh, Dallas National’s representative, testified that Dallas National originally denied Lewis’s claim for workers’ compensation benefits because it believed that Bryant had been the victim of a homicide. He agreed that, at the time Dallas National filed its first dispute of Bryant’s claim on the basis of its homicide allegation, which had been fourteen days after Bryant’s death, Dallas National had not obtained any evidence indicating that Bryant had lost the normal use of his mental and physical faculties when he died. Walsh reviewed the investigation file, which indicated that Dal1as National’s investigator had interviewed three witnesses, including Walker, after the fire. He agreed that there was no indication in the file that any of the witnesses had reported that Bryant had lost the normal use of his mental and physical faculties. However, Dallas National opined that Bryant had lost the normal use of his mental and physical faculties when it received the medical examiner’s report indicating that Bryant “was positive on cocaine.” Walsh agreed that Dallas National did not receive any statement from anyone that Bryant was acting “weird” or abnormal at the time of his death.

Dr. Lykissa testified that Bryant had “used a small amount of cocaine” and “had some stimulation to the cocaine, based on the pharmacologic effect of that kind of dose.” Lykissa compared and contrasted cocaine use and alcohol use. When asked about Walker’s testimony that Bryant did not seem to have any problems with his physical or mental faculties during the shift in which he was killed, Lykissa said that Walker’s observations of Bryant could be “consistent” with the amount of cocaine that had been found in Bryant’s system. Lykissa also stated that Bryant was “under detrimental influence of cocaine at the time” of his death “because he had it in his blood,” and he agreed that cocaine may negatively affect cognitive abilities, but he also stated that Bryant had “greater than 95%” use “of the control of his mental and physical faculties.” He subsequently opined that Bryant’s cognitive abilities “could have been or not affected,” and he stated that he had “no indication whatsoever.” Lykissa also noted that Bryant “was not perceived by anybody to be out of the ordinary.” He conceded that he could not determine from a medical examiner’s report the amount of cocaine that an individual has ingested and how recently it had been ingested.

The trial court found that Bryant was “not intoxicated” and he had the normal use of his mental and physical faculties at the time of his death. The trial court reversed the decision of the TDI appeals panel and subsequently entered findings of fact and conclusions of law, stating that Bryant was within the scope of his employment at the time he was driving the shuttle bus, he “had a trace of cocaine in his blood at the time of his death,” he was “alert” and “had the normal use of his mental and physical faculties” prior to his death, and he was not intoxicated at the time of his death.

Standard of Review

In an appeal of a judgment rendered after a nonjury trial, a trial court’s findings of fact have the same weight as a jury’s verdict, and we review the legal and factual sufficiency of the evidence used to support them just as we would review a jury’s findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 184 (Tex. App.—Houston [1st Dist.] 2005, no pet.). In conducting a legal sufficiency review of the evidence, we must consider all of the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). In determining whether legally sufficient evidence supports the finding under review, we must consider evidence favorable to the finding if a reasonable fact finder could consider it, and disregard evidence contrary to the finding unless a reasonable fact-finder could not disregard it. Id. at 827; Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

In reviewing a factual sufficiency challenge, we consider and weigh all of the evidence supporting and contradicting the challenged finding and set aside the finding only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The trial court acts as fact-finder in a bench trial and is the sole judge of the credibility of witnesses. See Murff v. Murff, 615 S.W.2d 696, 700 (Tex. 1981); HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.).



Legal and Factual Sufficiency

In its first and second issues, Dallas National argues that the evidence is legally and factually insufficient to support the trial court’s finding that Bryant was not intoxicated at the time of his death because Dr. Lykissa’s “testimony was ambivalent at best” and the trial court “incorrectly lent weight” to Walker’s “lay opinion.”[1] Within its issues, Dallas National asserts that Lykissa’s testimony was unreliable, conflicting, and lacked support in “any scientific evidence or method,” and, thus, should be disregarded. Dallas National argues that Walker’s testimony constituted “character testimony having no relevance or forensic value” because Walker had “no medical training” and she did not see Bryant operate the shuttle bus “immediately before his death.”

The Texas Workers’ Compensation Act provides that an insurance carrier is not liable for compensation if an employee’s injury occurred while the employee was in a state of intoxication. Tex. Lab. Code Ann. § 406.032(1)(A) (Vernon Supp. 2010). “Intoxication” means the state of “not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code.”[2] Id. § 401.013(a)(2)(B); Tex. Health & Safety Code Ann. § 481.002 (Vernon Supp. 2010). A party pursuing judicial review of a final decision of the appeals panel regarding compensability or eligibility for or the amount of income or death benefits decision has the burden of proof by a preponderance of the evidence. Tex. Lab. Code Ann. §§ 410.301, 410.303 (Vernon Supp. 2010).

In determining if a person has lost the normal use of his physical or mental faculties, lay witnesses are competent to offer testimony as to whether a person acted normally. Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 117 (Tex. App.—Beaumont 2005, pet. denied). In Hinson, the Beaumont Court of Appeals rejected the argument made by a workers’ compensation insurer, similar to that made here by Dallas National, that expert testimony should be required on the issue of intoxication. Id. The court explained,

[I]n a case of alcohol intoxication, in which the State bases its theory on statutory language involving the normal use of mental and physical faculties, we have held that expert evidence is not absolutely required to establish diminished use of physical and mental faculties. The rationale of that opinion is that abnormal behavior is observable, and that non-experts are competent to provide testimony relevant to whether a person acted abnormally. We believe the converse is also true, that normal behavior is observable, and that non-experts are competent to provide testimony relevant to whether a person acted normally.



Id.

Moreover, this Court has specifically stated that “[i]n 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.” Tex. Mut. Ins. Co. v. Havard, No. 01-07-00268-CV, 2008 WL 598347, at *3 (Tex. App.—Houston [1st Dist.] Mar. 6, 2008, no pet.) (mem. op.) (citing Hinson, 172 S.W.3d at 115). The statutory standard for intoxication by a controlled substance like cocaine is “relatively subjective” because intoxication is defined as “not having the normal use of mental or physical faculties” as a result of one’s voluntarily use of the controlled substance. Id.; Tex. Lab. Code Ann. § 401.013(a)(2). As a result of the statutory definition of intoxication, the issue in a compensation case involving the allegation of intoxication by a controlled substance like cocaine is not whether the substance “was to some degree, however slight, in the claimant’s body at the time of the accident,” but rather whether the claimant was intoxicated at the time the accident occurred. Hinson, 172 S.W.3d at 115.

The trial court could have reasonably concluded that Walker was competent to testify regarding Bryant’s physical and mental faculties during the overnight shift and in the minutes preceding his death and her testimony was relevant on the issue of whether Bryant was intoxicated. Walker’s testimony supports the trial court’s findings that Bryant was alert and possessed the normal use of his physical and mental faculties at the time of his death. The fact that Walker did not observe Bryant at the exact minute of his death did not render Walker’s testimony irrelevant. The trial court, as the fact-finder, was entitled to consider Walker’s observations of Bryant throughout his shift, including her observations of him just minutes before his death, in determining whether Bryant was intoxicated. See Havard, 2008 WL 598347, at *5 (noting that claimant’s evidence included affidavit testimony from worker at facility where claimant was injured stating that claimant did not appear intoxicated on day of accident).

Dr. Lykissa did testify, based upon information in the medical examiner’s report, that Bryant had a “small amount” of cocaine in his system. However, Lykissa further testified that the amount of cocaine found in Bryant’s system was “consistent” with Walker’s observations of Bryant exhibiting normal behavior on the night in question, including as recent as ten minutes before the fire. Lykissa agreed that, based upon information disclosed in the medical examiner’s report, he could not determine when Bryant had ingested the cocaine, how much cocaine he had ingested, or how it affected him. And Lykissa noted that the cocaine could or could not have affected Bryant’s cognitive abilities at the time of his death. However, although some of Lykissa’s testimony on the general effects of cocaine might be considered conflicting,[3] ultimately, his testimony was consistent on the point that it was not possible for him to determine from the information disclosed in the medical examiner’s report what level of intoxication, if any, Bryant suffered as a result of the ingestion of cocaine.[4]

Based upon Walker’s testimony that Bryant exhibited normal behavior throughout the overnight shift and, specifically, just minutes before his death, the trial court reasonably could have found that Bryant had not lost the normal use of his physical and mental faculties and was not intoxicated at the time of his death. Accordingly, we hold that the evidence is legally sufficient to support the trial court’s findings that Bryant “had the normal use of his mental and physical faculties” and was not intoxicated at the time of his death. Moreover, even if we were to consider the conflicting testimony offered by Dr. Lykissa on Bryant’s intoxication, including his testimony that Bryant would have been stimulated and was “under detrimental influence of cocaine at the time” of his death, we cannot say that such evidence makes the trial court’s finding clearly wrong or manifestly unjust. Accordingly, we further hold that the evidence is factually sufficient to support the trial court’s findings that Bryant “had the normal use of his mental and physical faculties” and was not intoxicated at the time of his death.

We overrule Dallas National’s first and second issues.

* * *

See: http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=89270

Outcome: We affirm the judgment of the trial court.

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