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:8:37Al\I

TENNESSEE DIVISION OF WORKERS' COMPENSATION WORKERS' COMPENSATIONAPPEALS BOARD



### Employee: John D. Ellis

Employer: A Air-One Services

Appeal from the Court ofWorkers' Compensation Claims Jim Umsted, Judge ) DocketNo. 2015-08-0001 ) 

### ) State FileNo. 78521-2014 ) ) ) ) )

Affirmed and Remanded- Filed April16,2015

OPINIONAFFIRMING 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 ofheavy equipment while working as an HV AC service technician for his employer. The employer denied the claimbased on apositive 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 ofWorkers' Compensation Claims.

Judge Marshall L. Davidson, III, delivered the opinion ofthe Appeals Board, in which Judge DavidF. Hensley, andJudge Timothy W. Conner,joined.

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

1

### MarkA. Lambert, Memphis, Tennessee, for the employee-appellee, John D. Ellis

Factual and Procedural Background



### John Ellis ("Employee"), a resident ofShelby County, Tennessee, was employed

as an HV AC service technician by A Air-One Services ("Employer") when he injured his back maneuvering a piece ofequipment on September 19, 2014. On that date, Employer sent Employee to a supply facility to retrieve an air handler and deliver it to ajob site. The air handler, which weighed several hundred pounds, was placed on a trailer by a forklift operator. While Employee was in the process ofpositioning the air handler so that it could be secured to the trailer, he felt apop in his back. He reported the incidentto Employer and workedthe remainder ofhis shift.

The next work day, September 22, 2014, Employee notified Employer that he was unable to work because ofback 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. EmployerprovidedEmployee apanel ofphysicians 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 ofthe 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 ofhair "has an approximate time frame ofthree monthspast 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 trialjudge that the sole issue was whether Employer had sufficient grounds to deny Employee's claimbased

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 ofillegal 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 ofillegal drug use. Employer timely appealed, and

2the record was submitted to the Appeals Board and a docketing notice was issued to the parties onApril 8, 2015.

Standard ofReview

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 ofthe workers' compensationjudge are correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. § 50-6-239(c)(7) (2014). The trial court's decision must be upheld unless "the rights ofthe party seeking review have been prejudiced because findings, inferences, conclusions, or decisions ofa workers' compensationjudge:

(A) Violate constitutional orstatutoryprovisions; (B) Exceedthe statutory authority ofthe workers' compensationjudge; (C) Donot complywith lawfulprocedure; (D) Are arbitrary, capricious, characterized by abuse ofdiscretion, or clearlyunwarranted exercise ofdiscretion; or (E) Arenot supportedby evidence that is both substantial and material inthe light ofthe entirerecord.

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 ofthe trial court absentthe limited circumstances identified in the statute.
Analysis

A.

The general assembly has identified a number ofcircumstances in which workers' compensation benefits may notberecovered, one ofwhich is when the employee's injury

ordeath is due tothe employee's intoxication orillegal drug use. Tenn. CodeAnn. § 50- 6-110(a)(3) (2014). If, as in this case, the employer has implemented a drug-free workplace program1 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 ofproductivity, 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 intendedthat "drug and alcohol abuse be discouraged and that employees who chooseto engage in drug oralcohol abuse face the risk ofunemployment and the forfeiture ofworkers' compensation benefits." !d. Consequently, ifan employer implements a drug-free workplace, the employer may require drug testing and, "ifa drug or alcohol is found to be present in the employee's system at a level prescribed by statute or by rule," the

3the drug

... was the proximate cause ofthe 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 ofthe injury. !d. Ifan 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. § 50-6-11O(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 50-6-110(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. § 50-6-110(c)(2).

The presumption in section 50-6-110(c)(1) has been the focus oftwo cases, the first ofwhich is 

### Interstate Mechanical Contractors, Inc. v. Mcintosh, 229 S.W.3d 674 (Tenn. 2007). In

### Mcintosh, the employee, whose employerhad implemented a drug-free workplace program, had his hand crushed by a machine that bends sheetmetal after a coworker engaged the machine while unaware that the employee's hand was on the machine. A drug testperformed afterthe accident was positive for Tetrahydrocannabinol ("THC"), a marijuanametabolite stored in the body's fat cells. The employee admitted to smoking marijuana the night before the accident, and testimony established thatthe level ofTHC 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 thatthepresumptionhad been rebutted. !d. at 682.

In the other case involving the presumption contained in section 50-6-110(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 ofpart ofhis 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 presumptionthat his marijuana use
was the proximate cause ofthe 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 ofevidence concerning how the level ofTHC 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).

4observing 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 ofrebutting 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 ofthe evidence. As noted above, the statute now requires that the evidence be clear and convincing, a higher standard than

a merepreponderance standard. Specifically, clearand convincing evidence is that which leaves "no serious or substantial doubt about the correctness ofthe conclusions drawn." 

### Go.ffv. Elmo Greer & 

### Sons Canst. Co., Inc., 297 S.W.3d 175, 187 (Tenn. 2009). Stated differently, the truth ofthe facts assertedmustbe "highlyprobable." !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 50-6-110(c)(1 ). Thus, the pivotal questionpresented 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 concludedthathe 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 ofa urine sample, encompassed a three-month span ofpossible 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 eitherto the nature ofthe specimentested- urine versus hair- orthe mannerin 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 ofillegal drugs while working for Employer and denied being around anyone who had taken

2Neitherparty has filed a brieforotherdocument statingtheir positions.

3 Contraryto his testimony atthe expedited hearing, Employee stated in an affidavitthat he "neverused methamphetamine orany similardrug."

5

### methamphetamines. Employee was the only witness to testify, and the trialjudge 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 underthe 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, ifat all, the level ofmethamphetamines detected by the first drug screen would have affected him, assuming the results ofthat 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 ofit as mighthappen ifhe 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 50-6-110(c)(1 ). Accordingly, the trial court's decision is affinned.

Conclusion



### Forthe foregoing reasons, we holdthatthe evidence does notpreponderate 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 PresidingJudge Workers' Compensation Appeals Board