Employees Retirement System of Texas and Minnesota Life Insurance Company v. LaRae Walker

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00321-CV

Employees Retirement System of Texas and

Minnesota Life Insurance Company, Appellants

v.

LaRae Walker, Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-19-002744, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

MEMORANDUM OPINION

The Employees Retirement System of Texas (ERS) and Minnesota Life Insurance

Company appeal from the trial court’s judgment that reversed ERS’s decision to deny

LaRae Walker’s claim for accidental-death benefits and ordered Minnesota Life to pay the claim.

On review, we must determine whether substantial evidence supports ERS’s conclusion that

Walker’s husband (Decedent) was intoxicated, which substantially contributed to his decision to

attempt to cross a busy freeway on foot. We conclude that it does and accordingly reverse the

trial court’s judgment and render judgment affirming ERS’s order.

PROCEDURAL BACKGROUND

Walker, an employee of the State of Texas, purchased Dependent Voluntary

Accidental Death and Dismemberment (AD&D) Insurance under the Renewable Group Term

Life Insurance policy established by the ERS Board of Trustees and administered by Minnesota

Life. The policy covers loss of life as a direct result of accidental bodily injury to the employee

or dependent. Walker’s spouse was a dependent and insured under the policy. On April 22,

2015, at about 6:15 a.m., Walker’s spouse attempted to walk across Interstate Highway 635 in

Dallas and was struck by five cars and killed. The autopsy report indicated that Decedent’s

blood contained methamphetamine and cocaine metabolites.

Walker filed a claim for accidental-death benefits with Minnesota Life, which

determined that the policy excluded her spouse’s death from coverage pursuant to a clause

providing that the policy “does not cover any loss caused by, resulting from or substantially

contributed to by . . . [t]he insured individual being intoxicated by reason of alcohol or drug use,

or a combination thereof.” The policy defined “intoxication” as in Section 49.01 of the Texas

Penal Code. See Tex. Penal Code § 49.01 (defining term, relevantly, to mean “not having the

normal use of mental or physical faculties by reason of the introduction of . . . a controlled

substance, a drug, a dangerous drug, [or] a combination of two or more of these substances”).

After Minnesota Life denied her claim, Walker appealed to ERS, which concurred with

the denial.

Walker requested a contested-case hearing before the State Office of

Administrative Hearings (SOAH). At the hearing, Walker had the burden by a preponderance of

the evidence to prove that she was entitled to benefits under the policy. See Tex. Ins. Code

§ 1551.357(d); 34 Tex. Admin. Code § 67.55(b) (2022) (Employees Retirement Sys., Ord. of

Proc.). The administrative law judge (ALJ) concluded that Walker failed to prove that the

intoxication exclusion does not apply and did not prove that she is eligible to receive the

accidental-death benefits for the death of her spouse. The ERS Executive Director entered an

order adopting the ALJ’s findings of fact and conclusions of law, concurring that Walker was not

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eligible for accidental-death benefits. Walker filed a motion for rehearing, which was overruled

by operation of law.

Walker filed a suit for judicial review in the trial court challenging ERS’s final

order. See Tex. Ins. Code § 1551.359 (providing right to judicial review for person aggrieved by

ERS final decision and for “substantial evidence” standard of review). After a hearing on the

merits, the trial court reversed ERS’s decision and ordered Minnesota Life to pay Walker the

claim. ERS and Minnesota Life perfected this appeal.

EVIDENCE ADMITTED BY THE ALJ

The ALJ admitted the depositions of the following persons: Stephen Hastings,

M.D., a pathologist and the medical examiner who performed the autopsy on Decedent;

Ross Stedman, the claims manager of the AD&D program for Minnesota Life; and Jon Rod

McCutcheon, a forensic toxicologist. Documentary exhibits admitted included Decedent’s

autopsy report and certified death certificate, both of which were attached to Dr. Hastings’s

deposition; McCutcheon’s toxicology report, which was based on the autopsy toxicology

results and was attached to his deposition; and the police report from the incident causing

Decedent’s death.

Autopsy report and death certificate

The autopsy report is signed by Dr. Hastings as well as Tracy Dyer, M.D.,

Medical Examiner, and Jeffrey Barnard, M.D., Director and Chief Medical Examiner of the

Dallas County Medical Examiner’s Office. It reports the manner of death—“accident”—and

states that “[b]ased on the case history and autopsy findings, it is our opinion that [Decedent] . . .

died as a result of blunt force injuries.” The toxicology portion of the report indicates the

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following substances in Decedent’s blood: (1) methamphetamine (0.91 mg/L), (2) amphetamine

(0.06 mg/L) (together listed under the subheading “Alkaline Quantitation”), (3) ecgonine methyl

ester (0.026 mg/L), and (4) benzoylecgonine (0.116 mg/L) (together listed under the subheading

“Cocaine and Metabolites”). The certified death certificate identifies the “immediate cause” of

death as “blunt force injuries” and the manner of death as “accident.” Although it contains a

space for adding “significant conditions contributing to death,” that space is blank.

Police report

The police report narrates that Decedent, “a pedestrian, was attempting to cross

the westbound traffic lanes of L.B.J. Frwy. from south to north,” and that a car traveling in the

second lane from the left “collided” with him, after which Decedent “was vaulted into the air,”

“fell to the roadway,” and “was subsequently run over by” four other cars traveling westbound

on the roadway. The narrative concludes, “This report had been marked incomplete pending

an analysis of a specimen of the pedestrian’s blood.” No further evidence from the police

department was admitted.

Medical examiner’s deposition

Dr. Hastings performed the autopsy the day after Decedent’s death, within the

usual period from which an examiner can generally “get a pretty good idea of what’s going on

with someone.” The extensive, severe injuries to Decedent’s body were “consistent with a

pedestrian getting hit by a motor vehicle or multiple motor vehicles” and with the information

Dr. Hastings had received from investigative sources that medical examiners typically consult

before performing an autopsy.

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Dr. Hastings explained that medical examiners at his office routinely order a

toxicology report for every autopsy performed, and that in some cases the report is helpful

to determine “what caused the death of the person.” He testified that Decedent’s toxicology

report showed the presence of methamphetamine, amphetamine, ecgonine methyl ester, and

benzoylecgonine in his blood. Methamphetamine and amphetamine are “intoxicating

substances,” and the former is an illegal drug, while the latter “can either be a metabolite of

methamphetamine or . . . a prescription drug.” Dr. Hastings explained that when cocaine is

metabolized by the body, the two substances identified in the toxicology screen as ecgonine

methyl ester and benzoylecgonine will be present. Those two cocaine metabolites cannot “show

up” on a toxicology report if someone “doesn’t take cocaine.”

Dr. Hastings did not deem the toxicology results “relevant” “as far as the cause

and manner of death.” Because of Decedent’s “extensive blunt force injuries,” the toxicology

substances were not listed as “contributory” to the cause and manner of death. Dr. Hastings did

not attribute any of the drugs found in Decedent’s blood “to causing his death” and would only

include such information when “there’s nothing else [to explain] [a] cause of death,” such as

when someone is “found dead with a syringe in their arm.” When asked whether Decedent had

“levels of drugs that would cause death,” Dr. Hastings responded, “There’s no safe amount of

methamphetamine. So methamphetamine can cause death at really any dosage.” He made the

same statement with respect to cocaine and stated that there is no “therapeutic level” for

methamphetamine. The autopsy revealed that Decedent was alive when he suffered the blunt-

force injuries and had not died (such as from drug overdose) before then.

Dr. Hastings testified that the drugs present in Decedent’s system when he died

could cause someone to “become agitated, delirious, unaware of their surroundings, have

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decreased spatial awareness, [and] not be able to walk straight.” However, he further testified,

the drugs found in Decedent’s system affect individuals differently and that, absent evidence

documenting how a person was acting, one could not discern a person’s level of impairment

from the toxicology results alone. Dr. Hastings testified that Decedent’s death did “not

result” from intoxication, as defined in the Texas Penal Code, and that intoxication did not

“substantially contribute” to his death. However, Dr. Hastings clarified that, as a medical

examiner, he is not charged with determining how an incident or accident occurs and that

generally he is “looking at the immediate cause of death.” He also did not have an opinion “one

way or the other” about whether intoxication led to the incident where [Decedent] was killed.”

Typically, he would not “look into” what led to an incident causing death “unless it’s a suspected

homicide or something along those lines.” From his point of view as the medical examiner, in

conducting autopsies, he focuses on the “immediate cause of death.” Although his office

routinely performs toxicology tests, those results “won’t be relevant” to “cause of death” as

noted in autopsy reports except in cases such as drug overdose or homicide. He also does not

generally “form a conclusion” about whether someone was intoxicated in a case such as this.

Dr. Hastings testified that methamphetamine and cocaine are central-nervous-

system stimulants, and that Decedent had taken both “at some point” before his death. He

could not say that Decedent was not intoxicated at his time of death or that intoxication did

not lead to the events that caused his death. He testified that both drugs can cause “euphoria,

excitation and a rapid flow of thoughts,” a “heightened sense of well-being,” “irrational

behavior,” hallucinations, psychosis, symptoms of schizophrenia, and the “ill advised” decision

to “attempt to cross the LBJ Freeway on foot.” One’s attempting to cross the interstate on foot

might be due to his not having his “normal mental faculties,” but because Dr. Hastings did not

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see Decedent before he died, he could not determine his “degree of intoxication,” and he would

not assume that Decedent was acting “crazy, schizophrenic, or strange[ly]” merely because he

had drugs in his system.

Forensic toxicologist’s deposition

McCutcheon is certified by the American Board of Forensic Toxicology and has

previously served as the chief forensic toxicologist in both the Travis County and Bexar County

Medical Examiner’s Offices. While serving in those roles, he had been called to testify in

criminal and civil proceedings to “interpret the findings of whatever drug that was present or

alcohol that was present” in a person’s system and “how that might affect the persons, whether

it caused impairment, or if it could have been the cause of death in an overdose situation.”

McCutcheon reviewed the autopsy here, specifically the toxicology results, and testified that “it

was fair” to conclude that Decedent had ingested both methamphetamine and cocaine in the

hours preceding his death.

Methamphetamine is a central-nervous-system stimulant that has some

therapeutic use as a prescription drug for narcolepsy and attention-deficit disorder; however, it is

more commonly used as an illicit drug. A therapeutic dosage would have “a fairly low

concentration” in the range of 0.02 to 0.05 mg/L, with “some literature” indicating that it can

range “up to .2” mg/L. Decedent’s concentration (of 0.91 mg/L) was higher than the therapeutic

concentration and “is consistent with what has been shown in the literature to be an abuse level

or an abuse concentration.” McCutcheon identified the “literature” and sources he reviewed to

complete his report, and he stated that they are the types of information upon which experts such

as himself rely for information about drugs.

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He testified that, in his capacity as a forensic toxicologist, he is familiar with what

effect methamphetamine can have on someone if it is abused: being “more awake”; feelings of

excitement, euphoria, heightened awareness, or paranoia; speeding thoughts; sometimes violent

behavior; and an increase in blood pressure and heart rate. Additionally, people who have been

observed with abuse concentrations have exhibited irrational, aggressive, impulsive, and risky

behavior (e.g., high-speed driving); rapid speaking; and incoherent thinking. Cocaine is also a

central-nervous-system stimulant and can have the same effects in terms of impulsiveness and

risk-taking behavior.

Based on the toxicology findings in the autopsy report, McCutcheon concluded

that Decedent was intoxicated at the time of his death. His report states, “In my opinion, within

reasonable toxicological possibility, [Decedent] had lost the normal use of his mental and

physical faculties, due to the methamphetamine in his system, at the time of his death.” He

stated that he is familiar with the LBJ Freeway in North Dallas, which ranges between six and

eight lanes across in the area where Decedent was found and believes that it “would be foolish to

try to cross it on foot” and that attempting to do so is both “ill-advised” and “consistent with

someone who does not have his or her normal mental faculties.” He opined that Decedent’s

intoxication substantially contributed to his death. He stated the bases for his conclusion: the

amount of methamphetamine in Decedent’s blood, indicating that he was intoxicated at the

time of death, and the “circumstantial situation indicated by” the police report indicating that

“[s]omething was affecting [Decedent’s] perception and his decision-making at that time to

try to cross the very busy freeway.” He explained that even if Decedent in a sober state had

impulsive and irrational tendencies, his intoxication would have increased them. Due to the high

concentration of methamphetamine in Decedent’s system, “there definitely will be significant

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effects from the drug.” However, McCutcheon admitted that he did not know how Decedent was

acting just before trying to cross the freeway, what his usual sober state of behavior or risk-

taking level was, or what level of tolerance to methamphetamine he may have acquired.

Claims manager’s deposition

Stedman made the decision for Minnesota Life to deny Walker’s claim. He

testified that he and his staff rely on medical doctors, toxicologists, and other medical

professionals in making such decisions. In this case, the decision was based on a records review

by Dr. Battis, a medical doctor employed by Minnesota Life. In an entry in the claim file,

Dr. Battis noted: “The toxicology reveals [Decedent] had cocaine and methamphetamine both of

which would have rendered him not to have the normal use of his mental faculties” and that such

intoxication “should have also been listed in the [death certificate] as a contributing cause based

upon these records.”

DISCUSSION

The immediate cause of Decedent’s death is undisputed—blunt-force injuries

from being hit by one or more vehicles on the freeway as he attempted to cross it on foot. The

dispute lies in whether ERS could reasonably have concluded that the undisputed levels of illegal

drugs in Decedent’s system at the time of his death caused him to be intoxicated and that such

intoxication substantially contributed to his death. The ALJ concluded that McCutcheon’s

testimony established that Decedent was intoxicated and that it was “reasonable to infer” that his

intoxication “caused or substantially contributed to his decision to cross the freeway, which in

turn led to his death.” He further concluded that Walker was unable to meet her burden of proof

to establish that Decedent “either was not intoxicated or that his intoxication did not substantially

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contribute to his decision to cross the freeway.” She therefore “failed to prove” that the policy

exception did not apply and that she is eligible to receive the AD&D benefits.

Standard of review

The “substantial evidence” standard of review authorizes reversal or remand of

an agency decision that prejudices the appellant’s substantial rights because the administrative

findings, inferences, conclusions, or decisions (1) violate a constitutional or statutory provision,

(2) exceed the agency’s statutory authority, (3) were made through unlawful procedure, (4) are

affected by other error of law, or (5) are arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion. Tex. Gov’t Code § 2001.174. It also

authorizes a reviewing court to test an agency’s findings, inferences, conclusions, and decisions

to determine whether they are reasonably supported by substantial evidence considering the

reliable and probative evidence in the record as a whole. Id. § 2001.174(2)(e); Scally v. Texas

State Bd. of Med. Exam’rs, 351 S.W.3d 434, 440–41 (Tex. App.—Austin 2011, pet. denied).

Under this deferential standard, we presume that the Board’s order is supported by substantial

evidence, and Walker bears the burden of proving otherwise. See Scally, 351 S.W.3d at 440–41.

“The burden is a heavy one—even showing that the evidence preponderates against the agency’s

decision will not be enough to overcome it, if there is some reasonable basis in the record for the

action taken by the agency.” Id. at 441 (citing Texas Health Facilities Comm’n v. Charter Med.-

Dall., Inc., 665 S.W.2d 446, 453 (Tex. 1984)). Our ultimate concern is the reasonableness of the

agency’s order, not its correctness. Id. “The crux of a substantial evidence analysis is whether

the agency’s factual findings are reasonable in light of the evidence from which they were

purportedly inferred.” Granek v. Texas State Bd. of Med. Exam’rs, 172 S.W.3d 761, 778 (Tex.

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App.—Austin 2005, no pet.) (internal quotation omitted). Therefore, if there is evidence to

support either affirmative or negative findings on a specific matter, the decision of the agency

must be upheld. Charter-Med. Dall., 665 S.W.2d at 453.

Whether the agency’s order satisfies the substantial-evidence standard is a

question of law. Scally, 351 S.W.3d at 441. Thus, the trial court’s judgment that there was not

substantial evidence supporting the Board’s final order is not entitled to deference on appeal. Id.

On appeal from the trial court’s judgment, the focus of our review, as in the trial court, is on the

Board’s decision. Id. We review the Board’s legal conclusions for errors of law and its factual

findings for support by substantial evidence. Id. Substantial evidence “does not mean a large

or considerable amount of evidence, but rather such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion of fact.” Id. (citation omitted). Although

the evidence must amount to more than a mere scintilla, “the evidence in the record may

preponderate against the agency decision and still amount to substantial evidence.” Poole v.

Karnack Indep. Sch. Dist., 344 S.W.3d 440, 443 (Tex. App.—Austin 2011, no pet.). Thus, we

will sustain the agency’s decision if the evidence as a whole is such that reasonable minds could

have reached the conclusion that the agency must have reached in order to justify its action.

Scally, 351 S.W.3d at 441.

Analysis

On this record, we conclude that ERS could reasonably have concluded that

Decedent was intoxicated and that his intoxication substantially contributed to his death.

Therefore, its decision that Walker had not proved that she was entitled to benefits is supported

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by substantial evidence, and the trial court erred in concluding otherwise and reversing

ERS’s decision.

We first address Walker’s argument that McCutcheon’s deposition testimony

should not have been considered because he was “not qualified to render any opinion in this

case” because he is not a doctor and could not opine as to the cause of Decedent’s death based on

a “reasonable medical probability.” See 34 Tex. Admin. Code § 67.69(b) (2022) (Employees

Retirement Sys., Rules of Evidence) (noting that “opinion evidence of a medical condition or

cause must be based on reasonable medical probability and supported by objective medical

evidence”). However, Walker did not object to McCutcheon’s testimony when it was admitted,

and the ALJ was free to consider it. See Dyer v. Commission on Envt’l Quality, 639 S.W.3d 721,

734 (Tex. App.—Austin 2019) (noting that evidence admitted at contested-case hearing without

objection was properly considered by ALJ), aff’d, 646 S.W.3d 498 (Tex. 2022); Tex. Gov’t Code

§ 2001.081 (noting that rules of evidence “as applied in a nonjury civil case in a district court of

this state shall apply to a contested case”); Tex. R. Evid. 103(a) (stating that to preserve claim of

error about admission of evidence, party must timely object or move to strike and state specific

ground for objection unless it is apparent from context); see also City of San Antonio v. Pollock,

284 S.W.3d 809, 818 (Tex. 2009) (holding that scientific opinions admitted without objection

may be considered probative evidence “even if the basis for the opinion is unreliable”); Tex. R.

Evid. 702 (stating that expert witness may testify “in the form of an opinion” if his specialized

knowledge will help trier of fact understand evidence or determine fact in issue). However,

even had Walker preserved the issue for review, we would conclude that the ALJ did not

err in considering McCutcheon’s testimony—specifically his conclusion that Decedent was

intoxicated—because courts routinely accept the testimony of non-M.D. forensic toxicologists to

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establish whether a person was intoxicated. See, e.g., Haley v. State, 396 S.W.3d 756, 766 (Tex.

App.—Houston [14th Dist.] 2013, no pet.) (affirming trial court’s ruling that toxicologist’s

testimony was reliable where expert opined that appellant’s blood-methamphetamine level of

0.80 mg/L was “so high” that his coordination, attention, and driving-ability must have been

affected and contributed to accident). We thus proceed to consider the reasonableness of ERS’s

decision based on the evidence as a whole.

The evidence showed that Decedent had high levels of methamphetamine (more

than four times the highest possible therapeutic level—i.e., an “abuse level”) and cocaine

metabolites in his system when he attempted to cross the busy freeway. He had used both

illegal substances within hours of doing so. Methamphetamine and cocaine, used separately or

combined, have various physical and mental effects, including irrational, impulsive, and risk-

taking behavior; hallucinations; paranoia; inability to walk straight; and incoherent thinking.

With the high methamphetamine levels present in Decedent’s blood, McCutcheon believed that

Decedent had lost the normal use of his physical and mental faculties. While Dr. Hastings would

not opine on whether he believed that Decedent had lost the use of his physical and mental

faculties, he explained that his duties do not typically entail such conclusions but merely the

determination of the direct cause and manner of death. Both experts agreed that crossing the

busy freeway on foot would be ill-advised and consistent with someone functioning without

his normal use of mental faculties. Although it was her burden to prove that the intoxication-

exclusion did not apply, Walker offered no evidence to explain why her husband might have

attempted to cross the freeway or what his prior drug usage or sober behavior were like, such as

to demonstrate, for example, that his drug use had not impaired his physical and mental faculties.

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Although it is undisputed that the immediate cause of Decedent’s death was the

blunt-force injuries he sustained from cars, the AD&D policy excludes loss not only “caused by”

intoxication but also which is “resulting from or substantially contributed to” by intoxication.

When drug use is not the direct cause of death (such as in overdose cases), circumstantial

evidence may be offered to prove that drug-induced impairment has substantially contributed to

the accident that directly results in death. See Dutka ex rel. Estate of T.M. v. AIG Life Ins.,

573 F.3d 210, 214 (5th Cir. 2009) (affirming insurer’s decision that plane crash resulted “in part”

from pilot’s intoxication because circumstantial evidence, including nature of accident itself and

absence of evidence of mechanical failures or poor visual conditions, supported such finding).

On this record, it is a reasonable inference that Decedent did not have “the normal use of [his]

mental or physical faculties by reason of the introduction of . . . drug[s] … into [his] body” and

that such condition “substantially contributed” to his death. Therefore, we hold that substantial

evidence supports ERS’s conclusion that Walker did not prove her entitlement to accidental-

death benefits, see Scally, 351 S.W.3d at 441, and we sustain ERS’s and Minnesota Life’s

respective first issues.1

CONCLUSION

Having sustained ERS’s first issue and Minnesota Life’s sole issue, we must

reverse the trial court’s judgment and render judgment affirming ERS’s final order.

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We therefore need not address ERS’s second issue, in which it contends that the trial

court violated the “separation of powers doctrine” by reversing the ERS order without first

“finding an error in the decision” and remanding the cause to the agency to correct the error. See

Tex. R. App. P. 47.1.

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__________________________________________

Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Triana

Reversed and Rendered

Filed: September 14, 2022

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