TENNESSEE DIVISION OF WORKERS’ COMPENSATION 

WORKERS’ COMPENSATION APPEALS BOARD 

Employee: John D. Ellis ) Docket No. 2015-08-0001 

) 

Employer: A Air-One Services ) State File No. 78521-2014 

CERTIFICATE OF SERVICE

 

I hereby certify that a true and correct copy of the Appeals Board’s decision in the 

referenced case was sent to the following recipients by the following methods of service 

on this the 16th day of April, 2015. 

Name Certified 

Mail 

First Class 

Mail 

Via 

Fax 

Fax 

Number 

Via 

Email 

Email Address 

Mark Lambert X mlambert@forthepeople.com

Michael Haynie X mhaynie@manierherod.com

Jim Umsted, Judge X Via Electronic Mail

Kenneth M. Switzer, 

Chief Judge

 X Via Electronic Mail

Penny Shrum, Clerk, 

Court of Workers’ 

Compensation Claims

 X Penny.Patterson-Shrum@tn.gov

 

Jeanette Baird

Deputy Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-0064 

Electronic Mail: Jeanette.Baird@tn.gov 
FILED 

April 16, 2015 

TENNESSEE 

\YORKERS' C'Ol\IPENSATION 

APPEALS BOARD 

Time:8:37 Al\I 

TENNESSEE DIVISION OF WORKERS' COMPENSATION 

WORKERS' COMPENSATION APPEALS BOARD 

Employee: John D. Ellis 

Employer: A Air-One Services 

Appeal from the Court of Workers' 

Compensation Claims 

Jim Umsted, Judge 

) Docket No. 2015-08-0001 

) 

) State File No. 78521-2014 

) 

) 

) 

) 

) 

Affirmed and Remanded- Filed April16, 2015 

OPINION AFFIRMING AND REMANDING 

INTERLOCUTORY ORDER OF COURT OF WORKERS' COMPENSATION 

CLAIMS 

This interlocutory appeal involves an employee who alleges a back injury caused by 

lifting a piece of heavy equipment while working as an HV AC service technician for his 

employer. The employer denied the claim based on a positive drug test and its status as a 

certified drug-free workplace. A subsequent drug test was negative. Following an 

expedited hearing, the trial court found that the evidence did not support the defense of 

illegal drug use as codified in Tennessee Code Annotated section 50-6-110(a)(3). The 

employer has appealed. Having carefully reviewed the record, we affirm the decision of 

the Court of Workers' Compensation Claims. 

Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in which 

Judge David F. Hensley, and Judge Timothy W. Conner, joined. 

Michael L. Haynie, Nashville, Tennessee, for the employer-appellant, A Air-One 

Services 

1 
Mark A. Lambert, Memphis, Tennessee, for the employee-appellee, John D. Ellis 

Factual and Procedural Background 

John Ellis ("Employee"), a resident of Shelby County, Tennessee, was employed 

as an HV AC service technician by A Air-One Services ("Employer") when he injured his 

back maneuvering a piece of equipment on September 19, 2014. On that date, Employer 

sent Employee to a supply facility to retrieve an air handler and deliver it to a job site. 

The air handler, which weighed several hundred pounds, was placed on a trailer by a 

forklift operator. While Employee was in the process of positioning the air handler so 

that it could be secured to the trailer, he felt a pop in his back. He reported the incident to 

Employer and worked the remainder of his shift. 

The next work day, September 22, 2014, Employee notified Employer that he was 

unable to work because of back pain. The following day, Employee was treated at a 

hospital where he complained of back pain radiating down his leg that started on 

September 19, 2014. Employer provided Employee a panel of physicians and he selected 

Dr. Stephen Waggoner, an orthopedic surgeon, as his treating physician. Following an 

MRI ordered by Dr. Waggoner, Employee was diagnosed with a herniated disk and, 

despite his claim being denied by Employer, underwent surgery on November 20, 2014. 

Despite the surgery and subsequent period of recovery, Employee contends that he 

continues to need medical treatment. 

At Employer's request, Employee reported to a drug screening facility, Mid-South 

Drug Testing, Inc., for a drug test on September 23, 2014. Employee's urine tested 

positive for methamphetamines and Employer denied Employee's claim based on the 

illegal drug use defense in Tennessee Code Annotated section 50-6-110(a)(3). Believing 

that the results of the drug screen were incorrect, Employee returned to Mid-South Drug 

Testing on October 30, 2014, for another drug test. This second drug test, which used a 

hair sample rather than a urine sample, was negative. The report noted that the analyzed 

sample of hair "has an approximate time frame of three months past drug usage." 

On January 5, 2015, Employee filed a Petition for Benefit Determination. At an 

expedited hearing held on March 13, 2015, the parties informed the trial judge that the 

sole issue was whether Employer had sufficient grounds to deny Employee's claim based 

on illegal drug use. Following the hearing, the trial court entered an order finding that (1) 

Employer was a participant in the state's drug-free workplace program, (2) no evidence 

was presented that one drug test was more reliable than the other, (3) Employee testified 

credibly that he had not used methamphetamines for several years, and (4) there was no 

evidence that the use of illegal drugs caused or contributed to Employee's back injury on 

September 19, 2014. Accordingly, the trial court concluded that the evidence submitted 

did not support Employer's defense of illegal drug use. Employer timely appealed, and 

2 
the record was submitted to the Appeals Board and a docketing notice was issued to the 

parties on April 8, 2015. 

Standard of Review 

The standard of review applicable in reviewing a trial court's decision is 

statutorily mandated and limited in scope. Specifically, "[t]here shall be a presumption 

that the findings and conclusions of the workers' compensation judge are correct, unless 

the preponderance of the evidence is otherwise." Tenn. Code Ann. § 50-6-239(c)(7) 

(20 14). The trial court's decision must be upheld unless "the rights of the party seeking 

review have been prejudiced because findings, inferences, conclusions, or decisions of a 

workers' compensation judge: 

(A) Violate constitutional or statutory provisions; 

(B) Exceed the statutory authority of the workers' compensation judge; 

(C) Do not comply with lawful procedure; 

(D) Are arbitrary, capricious, characterized by abuse of discretion, or 

clearly unwarranted exercise of discretion; or 

(E) Are not supported by evidence that is both substantial and material in the 

light of the entire record. 

Tenn. Code Ann. § 50-6-217(a)(2) (2014). Like other courts applying the standards 

embodied in section 50-6-217(a)(2), we will not disturb the decision of the trial court 

absent the limited circumstances identified in the statute. 

Analysis 

A. 

The general assembly has identified a number of circumstances in which workers' 

compensation benefits may not be recovered, one of which is when the employee's injury 

or death is due to the employee's intoxication or illegal drug use. Tenn. Code Ann. § 50-

6-110(a)(3) (2014). If, as in this case, the employer has implemented a drug-free 

workplace program 

1 and the injured employee fails a drug test, "then it is presumed that 

1 The purpose of the drug-free workplace program is to "promote drug-free workplaces in order that 

employers in this state be afforded the opportunity to maximize their levels of productivity, enhance their 

competitive positions in the marketplace and reach their desired levels of success without experiencing 

the costs, delays and tragedies associated with work-related accidents resulting from drug or alcohol 

abuse by employees." Tenn. Code Ann. § 50-9-101 (a). Further, the general assembly intended that "drug 

and alcohol abuse be discouraged and that employees who choose to engage in drug or alcohol abuse face 

the risk of unemployment and the forfeiture of workers' compensation benefits." !d. Consequently, if an 

employer implements a drug-free workplace, the employer may require drug testing and, "if a drug or 

alcohol is found to be present in the employee's system at a level prescribed by statute or by rule," the 

3 
the drug ... was the proximate cause of the injury." Tenn. Code Ann. § 50-6-110(c)(l). 

This presumption is not conclusive, however, but may be rebutted by clear and 

convincing evidence that the drug was not the proximate cause of the injury. !d. If an 

employer has not implemented a drug-free workplace program, the employer bears the 

burden of establishing that the employee's intoxication or drug use was the proximate 

cause of the accident in order to avoid paying benefits. 

See Tenn. Code Ann. § 50-6-11 O(b ); Davidson v. Business Personnel Solutions, No. 

E2010-02366-WC-R3-WC, 2011 Tenn. LEXIS 1146, at *10 (Tenn. Workers' Comp. 

Panel Dec. 12, 2011 ). Similarly, the presumption contained in section 50-6-11 0( c )(1) 

does not apply if the employer had "actual knowledge of and acquiesced in the 

employee's presence at the workplace while under the influence of alcohol or drugs." 

Tenn. Code Ann. § 50-6-11 0( c )(2). 

The presumption in section 50-6-11 0( c )(1) has been the focus of two cases, the 

first of which is Interstate Mechanical Contractors, Inc. v. Mcintosh, 229 S.W.3d 674 

(Tenn. 2007). In Mcintosh, the employee, whose employer had implemented a drug-free 

workplace program, had his hand crushed by a machine that bends sheet metal after a coworker engaged the machine while unaware that the employee's hand was on the 

machine. A drug test performed after the accident was positive for Tetrahydrocannabinol 

("THC"), a marijuana metabolite stored in the body's fat cells. The employee admitted to 

smoking marijuana the night before the accident, and testimony established that the level 

of THC in his system was sufficient to impair his reaction time. However, additional 

evidence showed that once the machine was engaged there would have been no time for 

the employee to react and pull his hand away. !d. at 681. Based on that evidence, the 

trial court found there was no connection between the employee's slowed reaction time 

and the accident. The Supreme Court affirmed, noting that the trial court had properly 

placed the burden on the employee to rebut the statutory presumption and, having done 

so, did not err in finding that the presumption had been rebutted. !d. at 682. 

In the other case involving the presumption contained in section 50-6-11 0( c)( 1 ), 

Campbell v. PML, Inc., No. W2008-01539-WC-R3-WC, 2009 Tenn. LEXIS 68 (Tenn. 

Workers' Comp. Panel May 6, 2009), an employee, whose employer also had 

implemented a drug-free workplace program, got his thumb caught in a pulley resulting 

in the amputation of part of his thumb. A drug screen was positive for THC, and the 

employee admitted to smoking marijuana four days before his injury. The trial court 

found that the employee had successfully rebutted the presumption that his marijuana use 

was the proximate cause of the accident, noting that his supervisor and a co-worker had 

testified that he did not appear to be impaired. !d. at * 7. The trial court also noted the 

absence of evidence concerning how the level of THC found in his system would have 

affected him. !d. The Special Workers' Compensation Appeals Panel affirmed, 

employee may be terminated and forfeits workers' compensation benefits. Tenn. Code Ann. § 50-9-

lOl(b). 

4 
observing that although reasonable minds could have reached a different conclusion 

based the record, the Panel could not find that the evidence preponderated against the 

trial court's finding that the employee had carried his burden of rebutting the statutory 

presumption. !d. at* 12-13. 

At the time Mcintosh and Campbell were decided, section 50-6-llO(c)(l) 

provided that the presumption of causation stemming from an employee's alcohol or 

illegal drug use could be rebutted by a preponderance of the evidence. As noted above, 

the statute now requires that the evidence be clear and convincing, a higher standard than 

a mere preponderance standard. Specifically, clear and convincing evidence is that which 

leaves "no serious or substantial doubt about the correctness of the conclusions drawn." 

Go.ffv. Elmo Greer & Sons Canst. Co., Inc., 297 S.W.3d 175, 187 (Tenn. 2009). Stated 

differently, the truth of the facts asserted must be "highly probable." !d. 

B. 

Guided by the foregoing principles, we turn to the record in the present case. 

There is no dispute that Employer implemented a drug-free workplace program and that 

Employee's initial drug screen was positive for methamphetamines, thereby triggering 

the rebuttable presumption contained in section 50-6-11 0( c)( 1 ). Thus, the pivotal 

question presented in this appeal, or so we infer,2 is whether Employee met his burden of 

rebutting the statutory presumption by clear and convincing evidence. The trial court 

concluded that he did. We agree. 

First, the only evidence Employer presented in support of its illegal drug use 

defense is the positive drug screen on September 23, 2014. As noted above, the second 

drug screen conducted on October 30, 2014, was negative. Any suggestion that the 

second drug test should be discounted because it was conducted several weeks after the 

first drug screen is unpersuasive because the latter test, which used a hair sample instead 

of a urine sample, encompassed a three-month span of possible drug use according to the 

report introduced as an exhibit. Employee's accident occurred well within that time 

frame. Moreover, we note that no evidence was presented to suggest that one test was 

more reliable than the other, due either to the nature of the specimen tested- urine versus 

hair- or the manner in which the tests themselves were conducted. 

Second, Employee testified that he had not used illegal drugs in many years. He 

candidly acknowledged doing so approximately fifteen years before his accident, but 

denied taking any illegal drugs since. 3 He also denied taking any type of illegal drugs 

while working for Employer and denied being around anyone who had taken 

2 Neither party has filed a brief or other document stating their positions. 

3 Contrary to his testimony at the expedited hearing, Employee stated in an affidavit that he "never used 

methamphetamine or any similar drug." 

5 
methamphetamines. Employee was the only witness to testify, and the trial judge found 

him to be credible. When the trial court has seen and heard the witnesses, we give 

considerable deference to the trial court's factual findings. Tryon v. Saturn Corp., 254 

S.W.3d 321, 327 (Tenn. 2008). 

Third, the record is devoid of any evidence that illegal drug use caused or 

contributed to Employee's accident. There is nothing to suggest that Employee was 

impaired or under the influence when he was moving the air handler. Employee testified 

that he had not taken any drugs, and no witnesses were presented who testified that he 

was in any way impaired. Similarly, no evidence was presented regarding how, if at all, 

the level of methamphetamines detected by the first drug screen would have affected him, 

assuming the results of that test were accurate. Employee's testimony that he eased the 

air handler down on the trailer so it could be properly secured, as opposed to losing 

control of it as might happen if he was impaired, is uncontradicted. 

Based upon this record, we are unable to find that the evidence 

preponderates against the trial court's decision that Employee carried his burden of 

rebutting the presumption contained in section 50-6-11 0( c)( 1 ). Accordingly, the trial 

court's decision is affinned. 

Conclusion 

For the foregoing reasons, we hold that the evidence does not preponderate against 

the trial court's decision or otherwise run afoul of any of the standards set forth in 

Tennessee Code Annotated section 50-6-217(a)(2). Accordingly, the trial court's 

decision is affirmed and the case is remanded for any further proceedings that may be 

necessary. 

6 

Marshall L. Davidson, III 

Presiding Judge 

Workers' Compensation Appeals Board