1 

TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

WORKERS’ COMPENSATION APPEALS BOARD 

Willie Guinn and Judy Guinn,

as representatives of the Estate of

) Docket No. 2017-02-0207 

 )

Shannon Scott Guinn, Decedent ) State File No. 97502-2016 

)

v. ) 

) 

Barnard Roofing Company, Inc., et al. ) 

)

)

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Brian K. Addington, Judge )

Affirmed and Remanded – Filed October 5, 2017 

In this interlocutory appeal, the employer asserts the trial court erred in denying its 

motion for an order compelling the representatives of the employee’s estate to sign a 

medical release allowing a second toxicology screening of the decedent’s blood sample. 

Following a hearing, the trial court concluded the employer had not shown “good cause” 

supporting its motion because it offered no evidence that the laboratory holding the 

sample required a medical release or a court order to perform a second toxicology 

screening. Finding the trial court did not abuse its discretion in denying the employer’s 

motion, we affirm the trial court’s determination and remand the case for additional 

proceedings. 

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding 

Judge Marshall L. Davidson, III, and Judge David F. Hensley joined. 

Jeffery Foster, Jackson, Tennessee, for the employer-appellant, Barnard Roofing 

Company, Inc. 

Gregory Haden, Jackson, Tennessee, for the appellees, Willie Guinn and Judy Guinn,

as representatives of the Estate of Shannon Scott Guinn, Decedent 
2 

Factual and Procedural Background 

On December 15, 2016, Shannon Guinn (“Employee”) suffered a tragic fall while 

working for Barnard Roofing Co., Inc. (“Employer”). He had been assisting co-workers 

on a roof when he stepped through a skylight hole and fell approximately 25-30 feet onto 

concrete. He was hospitalized and underwent emergency surgery to treat a traumatic 

brain injury, but he was unable to recover. He passed away on December 24, 2016. 

During Employee’s hospital stay, medical personnel obtained a sample of his 

blood. On December 28, 2016, four days after Employee’s death, the sample was 

received by Aegis Sciences Corporation (“Aegis”), which performed a toxicology 

screening.1

 In a January 3, 2017 report, Aegis indicated the result was positive for 

“Carboxy-THC” at an amount of “24 ng/ml.” Employer then sought to have the sample 

re-tested due to its belief that Employee must have used marijuana prior to the accident 

because “Carboxy-THC” is an inactive ingredient in marijuana. Representatives of 

Employee’s estate declined to sign a release presented by Employer for a second 

toxicology screening for a number of reasons, including that the initial toxicology report 

noted the specimen’s “security seal [was] missing” and the level of “Carboxy-THC” 

noted on the result was below threshold minimums supporting a “confirmation test” as 

set forth in Tenn. Comp. R. & Regs. 0800-20-12-.03(17) (2012). 

Thereafter, Employer filed a motion asking the trial court for an order compelling 

the representatives of Employee’s estate to sign a medical release allowing a subsequent 

toxicology screening of Employee’s blood sample. Following an expedited hearing, the 

trial court denied the motion, concluding Employer had not shown “good cause” 

supporting its motion because it offered no evidence that the laboratory holding the 

sample required a release or court order to conduct additional testing. Employer has 

appealed. 

Standard of Review 

The standard we apply in reviewing a trial court’s decision presumes that the 

court’s factual findings are correct unless the preponderance of the evidence is otherwise. 

See Tenn. Code Ann. § 50-6-239(c)(7) (2016) (“There shall be a presumption that the 

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

preponderance of the evidence is otherwise.”). However, we review questions of law de 

novo with no presumption of correctness. See Am. Mining Ins. Co. v. Campbell, No. 

M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at *18 (Tenn. Workers’ Comp. Panel 

Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de novo upon the record 

with no presumption of correctness.”). Moreover, the interpretation and application of 

1

 The record is unclear as to who ordered this first toxicology screening, although the Aegis report 

indicates it was a “post-accident” test. 
3 

statutes and regulations concerns issues of law, which we review de novo with no 

presumption of correctness afforded to the trial court’s findings. See Seiber v. Reeves 

Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No. 2014-02-

0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp. App. Bd. 

May 18, 2015). 

A trial court’s decision to grant or deny a discovery motion is reviewed under an 

abuse of discretion standard. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 

(Tenn. Ct. App. 2004). This standard “contemplates that before reversal the record must 

show that a judge ‘applied an incorrect legal standard, or reached a decision which is 

against logic or reasoning that caused an injustice to the party complaining.’” Hubbard v. 

Sherman-Dixie Concrete, Indus., No. E2010-02219-WC-R3-WC, 2011 Tenn. LEXIS 

965, at *11 (Tenn. Workers' Comp. Panel Oct. 18, 2011) (quoting State v. Farrell, 277 

S.W.3d 372, 378 (Tenn. 2009)). 

Analysis 

The issue as stated by Employer is “whether the [trial court] erred in denying 

Defendants’ Motion to Compel a drug screen on the blood sample of the Employee.” In 

its brief, Employer correctly notes that it has the burden of proving its defense based on 

the alleged intoxication of Employee. Tenn. Code Ann. § 50-6-110(a)(3) (2016).2

 

In considering the issue raised by Employer, we must turn to the statutes and rules 

governing drug testing and the Tennessee Drug-Free Workplace Program. First, the 

record in this case is unclear as to whether the trial court considered Employer to be a 

certified drug-free workplace. In the initial dispute certification notice, Employer 

asserted it was not a certified drug-free workplace. In a subsequent brief, Employer 

argued that the rules governing drug testing in the Tennessee Drug-Free Workplace 

Program were inapplicable in this case, since it has “made no assertion [it] was qualified 

for the drug-free workplace program.” Thereafter, Employee filed copies of a 

“Tennessee Drug-Free Workplace Application,” purportedly submitted by Employer to 

the state, along with a Memorandum from the Tennessee Drug-Free Workplace Program 

accepting Employer’s application for participation in the program. Thus, it remains 

2

 Employer also cites certain statutes peripheral to the issue at hand. First, an injured worker must submit 

to a physical examination at the request of the employer at “all reasonable times.” Tenn. Code Ann. § 50-

6-204(d)(1). Second, an employer may, under certain circumstances, demand an autopsy of a worker

when the cause of death is “obscure or [] disputed.” Tenn. Code Ann. § 50-6-204(e). Third, an employer

has reasonable access to the medical records of an employee who seeks workers’ compensation benefits.

Tenn. Code Ann. § 50-6-204(a)(2)(A). However, Employer in this case has not demanded a physical

examination of the deceased worker, has not sought an autopsy, and is not seeking access to medical

records. Thus, none of the statutes cited by Employer addresses its purported right to demand estate

representatives to sign a release for medical testing of a blood sample of the deceased employee.
4 

unclear whether Employer is a “covered employer” as that term is defined in the statutes 

governing the Drug-Free Workplace Program. 

Consequently, before considering the drug-testing procedures as set forth in the 

Drug-Free Workplace Program, we must look to other statutes or rules that could support 

Employer’s motion. In general, “[d]iscovery rules are accorded broad and liberal 

treatment [as] mutual knowledge of all the relevant facts gathered by both parties is 

essential to proper litigation.” Johnson, 146 S.W.3d at 605 (citing Hickman v. Taylor, 

329 U.S. 495, 507 (1947)). A request for discovery need only show “that the information 

sought would lead to admissible evidence.” Id. “The first, and perhaps most important, 

policy is that discovery should enable the parties and the courts to seek the truth so that 

disputes will be decided by facts rather than by legal maneuvering.” White v. Vanderbilt 

Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999). 

Rule 35 of the Tennessee Rules of Civil Procedure governs requests for a physical 

or mental examination of a person. In general “[w]hen the mental or physical condition 

(including the blood group) of a party, or of a person in custody or under the legal control 

of a party, is in controversy, the court in which the action is pending may order the party 

to submit to a physical examination by a suitably licensed or certified examiner.” Tenn. 

R. Civ. P. 35 (emphasis added). Rule 35 contemplates at least one form of blood testing

as coming within the rule governing physical examinations. Therefore, if a trial court

determines that the physical condition of an injured worker is “in controversy,” it has the

discretion to order blood testing as part of a Rule 35 physical examination.

Moreover, assuming for purposes of this discussion that Employer and Employee 

are subject to the statutes and rules governing Tennessee’s Drug-Free Workplace 

Program, we must consider statutory and regulatory language pertinent to that program. 

The statute governing Tennessee’s Drug-Free Workplace Program defines “confirmation 

test” as follows: 

“Confirmation test,” “confirmed test” or “confirmed drug or alcohol test” 

means a second analytical procedure used to identify the presence of a 

specific drug or alcohol or metabolite in a specimen, which test must be 

different in scientific principle from that of the initial test procedure and 

must be capable of providing requisite specificity, sensitivity and 

quantitative accuracy.” 

Tenn. Code Ann. § 50-9-103(4) (2016). Section 50-9-104 provides that a “covered 

employer may test an employee for any drug defined in § 50-9-103, and at any time set 

out in § 50-9-106.” Tenn. Code Ann. § 50-9-104(a) (2016). Thereafter, the statute 

authorizes a covered employer to conduct “post-accident testing” “after an accident that 

results in an injury.” Tenn. Code Ann. § 50-9-106(a)(5) (2016). Finally, the law requires 

a covered employer to “use chain-of-custody procedures established by regulations of the 
5 

United States department of transportation or such other recognized authority approved 

by rule . . . governing drug testing.” Tenn. Code Ann. § 50-9-107(c) (2016). 

The rules pertaining to Tennessee’s Drug-Free Workplace Program also contain 

relevant provisions. First, “nothing in these rules shall be construed as authorizing any 

employer to test any employee or applicant for alcohol or drugs in any manner 

inconsistent with federal constitutional or statutory requirements.” Tenn. Comp. R. & 

Regs. 0800-02-12-.02(4) (2012). 

Second, a covered employer is required to conduct post-accident drug testing. 

Tenn. Comp. R. & Regs. 0800-02-12-.05(5). Moreover, “[s]pecimens shall be obtained 

at the treating facility or a designated collection site under the procedures set forth in 

these rules and transported to an approved testing laboratory.” Tenn. Comp. R. & Regs. 

0800-02-12-.05(5)(a). The post-accident drug test must be comprised of an “initial 

screen,” which is an “immunoassay,” and, if “identified as positive on the initial test,” a 

“confirmation test,” which is to use “gas chromatography/mass spectrometry (GC/MS).” 

Tenn. Comp. R. & Regs. 0800-02-12-.07(2) & (3). A confirmation test is called for if the 

initial screening is “positive,” but the regulations are silent as to the meaning of 

“positive.” A test result is considered “presumptively positive” if the detected levels of a 

particular drug exceed the prohibited levels identified in Tenn. Comp. R. & Regs. 0800-

02-12-.03(17). For marijuana, the “presumptively positive” level for an initial screening

is 50 ng/ml and the “presumptively positive” level for a confirmation screening is 15

ng/ml. Id.

In the present case, a blood specimen of the injured worker was received by Aegis 

Corporation on December 28, 2016, thirteen days after the work accident. The record 

contains no evidence that the testing facility required a medical release from the injured 

worker or his representative prior to conducting the initial screening. The January 3, 

2017 lab report does not indicate the date the blood sample was collected from the 

injured worker. The “result” indicates that the test for “Carboxy-THC” was “positive” at 

a level of 24 ng/ml. This result is below the threshold set by regulation to be considered 

“presumptively positive” if the result was from an “initial” immunoassay. Moreover, the 

lab report indicates that the “specimen security seal is missing.” 

The trial court concluded that Employer had failed to show good cause as to why 

its motion to compel should be granted. We agree. Based on our review of the record, 

the trial court was not presented with evidence that the January 3, 2017 laboratory report 

constituted a properly conducted “initial screen” as described in Tenn. Comp. R. & Regs. 

0800-02-12-07(2). Employer presented no evidence that chain-of-custody procedures 

were followed in accordance with Tennessee Code Annotated section 50-6-107(c), 

especially in light of the fact that the laboratory report on which it relies stated that the 

specimen’s security seal was missing. Employer presented no evidence as to when the 

blood sample was collected from Employee. 
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Moreover, although the laboratory identified a “positive” result for “CarboxyTHC,” which Employer asserted was an inactive ingredient in marijuana, Employer 

presented no evidence that the test result was “positive” for purposes of obtaining a 

confirmation test, especially since the result was below the threshold to be considered 

“presumptively positive” in accordance with Tenn. Comp. R. & Regs. 0800-02-12-

.03(17). In addition, the record contains conflicting evidence concerning whether 

Employer is a certified drug-free workplace under Tennessee law and/or is a “covered 

employer” for purposes of the statutes and rules governing drug testing under this 

program. 

Finally, Employer presented no evidence that a medical release or court order is 

needed for the type of confirmation test it is seeking. If Employer is not a certified drugfree workplace, then it is not subject to the rules governing initial screens and 

confirmation tests. If it is a certified drug-free workplace, we find nothing in the rules 

that requires an injured worker or the worker’s representative to sign a medical release in 

order for a confirmation test to occur. In fact, a confirmation test is required by the rules 

whenever the initial test is positive. See Tenn. Comp. R. & Regs. 0800-02-12-.07(3). 

Employer offered no affidavit or other evidence from a representative of the laboratory 

currently in possession of the blood specimen indicating it would not conduct a 

confirmation test without a medical release or court order. 

Thus, while we conclude that discovery in Tennessee is generally broad and the 

rules governing discovery are to be liberally construed, a party must still present evidence 

in support of a motion to compel sufficient to show “good cause” as to why a court order 

is necessary. We find nothing in the record supporting a conclusion that the trial court 

abused its discretion in denying Employer’s motion under these circumstances. 

Conclusion

Based on the foregoing, we affirm the decision of the trial court and remand this 

case for any further proceedings that may be necessary. 
 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

Willie Guinn and Judy Guinn,

as representatives of the Estate of Shannon 

Scott Guinn, Decedent

v.

Barnard Roofing Company, Inc., et al.

) Docket No. 2017-02-0207 

)

) State File No. 97502-2016 

) 

) 

) 

)

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 5th day of October, 2017. 

Name Certified 

Mail 

First Class 

Mail 

Via 

Fax 

Fax 

Number 

Via 

Email 

Email Address 

Jeffery Foster X jfoster@morganakins.com 

Gregory Haden X ghaden@hsdlaw.com 

Brian K. Addington, 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: WCAppeals.Clerk@tn.gov