In a previous post, I gave an overview of the problem with the state of the intoxication defense in workers’ compensation law in Texas–that it prevents people from recovery, even when their injury had nothing to do with testing positive for drugs. Again, I want to stress that everyone wants to maintain a drug free workplace.  I have lost two family members in incidents caused by a drunk driver — a cousin and an uncle — in separate  events. So, I tend to take a hard view towards injuries caused by intoxication. But that doesn’t mean I think insurance carriers should be excused from covering injuries that they have legally contracted to cover.

Currently, the Division of Workers’ Compensation takes the position that the rebuttable presumption shifts the burden of proof in a workers compensation case. This is contrary to the law of rebuttable presumptions found in virtually every other legal context. In fact, it is contrary to the law as set forth by the Texas Supreme Court.

In virtually every other legal context, a rebuttable presumption only operates to shift the burden of producing evidence. For instance, in the criminal context, a criminal defendant bears the burden to produce some evidence that a search occurred without a warrant, once that evidence is produced, the burden is on the State to show that the search or seizure was reasonable. In trademarks, a registered trademark shifts the burden to the opposing party to produce some evidence that the trademark is not valid. Once the evidence is produced, the burden of proof is on the trademark holder to establish validity. In discrimination law, the employer initially has a burden of producing evidence of legitimate, non-descriminatory reasons for their conduct, then presumption falls and the plaintiff has the burden of proof. in estate law, regarding gifts to spouses, initially there is a presumption of a gift but once evidence is produced negating that presumption, the presumption falls and no longer exists. In family law, there is a presumption in favor of naming a child’s parent or parents as managing conservators. However, the presumption is rebuttable and once some evidence is produced rebutting the presumption, it falls and the parent has the burden of proof to show that their appointment as managing conservator is in the best interest of the child. I could go on and on naming various legal contexts in which Texas law treats a “rebuttable presumption” as a requirement on a party to produce evidence not meet a burden of proof. But the Texas Supreme Court has already made this very clear in a case dealing with an area of personal injury law called product liability.

The Texas Supreme Court has made very clear, in the case of General Motors Corp. v. Saenz, 873 S.W.2d 353, 358-59 (Tex.1993), that a rebuttable presumption does not shift the burden of proof.

The Court has spoken!


“The Texas Supreme Court has made very clear…that a rebuttable presumption does not shift the burden of proof”



In this case, the Court very clearly stated that a rebuttable presumption merely shifts the burden of going forward on the case to produce some evidence rebutting the presumption. Once that evidence has been produced, the presumption disappears and the case is treated as if no presumption existed.

How long workers’ compensation law will continue to exist with an erroneous application of the law of rebuttable presumptions is unknown. However, as long as this continues, there will remain a problem with the constitutionality of the law that I will go into in a future post.