1 TENNESSEE BUREAU OF WOR KERS’ COMPENSATION

WORKERS’ COMPENSAT ION APPEALS BOARD

Willie Guinn and Judy G uinn, as representatives of t he 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 co urt erred in denying its

motion for an order compelling th e representativ es of the emplo yee’s estate to sign a medical release allowing a second toxicology screening of the d ecedent’s blood sample. Following a hearing, the trial c ourt concluded the employer had no t sh own “g ood cause” supporting its motion because it offered no evidence that the l aboratory holding the sample required a medical release or a court o rder to perform a second toxicology screening. Find ing the trial co urt d id not abuse its discretio n in denying the employer’s

motion

, we affirm the trial court’s determination an d remand th e case for add itional

p roceedings.

Judge Timothy W. Conner delivere d th e opinion of the Appeals Bo ard in which Presid in g Judge Marshall L. Davidson, III, a nd Judge David F. Hensley joi ned.

Jeffery F oster, Jackso n, Tenne ssee, f or t h e employer-appellant, Barnard Roofing Company, Inc.

Gregory Haden, J ackso n, Tenn essee, f or t he a ppellees, Willie Gu inn and Judy Guinn

,

as representatives of the Estate o f Shannon Scott G u inn, Decedent2 Factual and Procedural Background

On December 15, 2016, Shannon Gu inn (“Employee”) suffered a tr agic fall while working for Barnard Roofing Co., Inc. (“Employer”). He had bee n assisting co-workers on a roof when he stepped through a skylight hole and fell appr oximately 25-30 feet onto concrete. He was hospitalized and underwent emergency surgery to treat a traumatic brain injury, but he was unabl e 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 Corpor ation (“Aegis”), which perform ed a toxicology screening. 1 In a January 3, 2017 report, Aegis indicated the result was p ositive 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 mariju ana prior to the accident because “Carboxy-THC” is an inac tive ingredient in marijuana. Representatives of Employee’s estate declined to sign a release presented by Emplo yer for a second toxicology screening for a number of reasons, including that th e initial toxicology report noted the specimen’s “security seal [was] missing” and the leve l of “Carboxy-THC” noted on the result was below threshold minimums supporting a “ confirmation test” as set forth in Tenn. Comp. R. & R egs. 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 rele ase allowing a subsequent toxicology screening of Employee’ s blood sample. Following an expedited hearing, the trial court denied the motion, concluding Employer had not show n “good cause” supporting its motion because it offered no evidence that the l aboratory 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 pre sumes that the court’s factual findings are correct unless the preponderance o f the evidence is otherwise.

See Tenn. Code Ann. § 50-6-239(c)(7) (2016) (“There shall be a pre sumption that the findings and conclusions of the workers’ compensation judge are correct, unless the preponderance of the evidence is otherwise.”). However, we rev iew 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. Worke rs’ 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 revie w de novo with no presumption of correctness afforded to the trial court’s findin gs. 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 i ncorrect 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 dr ug screen on the blood sample of the Employee.” In its brief, Employer correctly notes that it has the burden of p roving its defense based on the alleged intoxication of Emplo yee. Tenn. Code Ann. § 50-6-1 10(a)(3) (2016). 2

In considering the issue raised by Employer, we must turn to t he statutes and rules governing drug testing and the Te nnessee Drug-Free Workplace Pr ogram. First, the

record in this case is unclear as to whether the trial court co nsidered Employer to be a certified drug-free workplace. In the initial dispute certific ation notice, Employer asserted it was not a certified drug-free workplace. In a subs equent brief, Employer argued that the rules governing d rug testing in the Tennessee D rug-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 fil ed copies of a “Tennessee Drug-Free Workplace Application,” purportedly submit ted by Employer to the state, along with a Memorandum from the Tennessee Drug-Free Workplace Program accepting Employer’s application for participation in the progr am. Thus, it remains

2 Employer also cites certain statutes peripheral to the issue a t hand. First, an injured worker must submit to a physical examination at the request of the employer at “al l reasonable times.” T enn. Code Ann. § 50- 6-204(d)(1). Second, an employer may, under certain circumstan ces, demand an autopsy of a worker when the cause of death is “obscure or [] disputed.” Tenn. Cod e Ann. § 50-6-204(e). Third, an employe r 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 addresse s its purported right to demand estate representatives to sign a release for medical testing of a bloo d sample of the deceased employ ee.4 unclear whether Employer is a “covered employer” as that term i s defined in the statutes governing the Drug-Free Workplace Program.

Consequently, before considering the drug-testing procedures a s 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 gathe red 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 req uest for discovery need only s how “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 cour ts to seek the truth so that disputes will be decided by facts rather than by legal maneuver ing.” White v. Vanderbilt

Univ. , 21 S.W.3d 215, 223 (T enn. 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 ment al or physical condition ( including the blood group ) of a party, or of a person in custody or under the legal cont rol 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 c ertified examiner.” Tenn.

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

as coming within the rule governing physical examinations. The refore, if a trial c ourt
determ ines that the physical condition of an injured worker is “in controversy,” it has the

discretion to or der blood testing as part of a Rule 35 physical exami nation.

Moreover, assuming for purposes of this discussion that Employ er and Employee are subject to the statutes and rules governing Tennessee’s Dru g-Free Workplace Program, we must consider statutory and regulatory language per tinent to that program. The statute governing Tennessee’ s Drug-Free Workplace Program d efines “confirmation

test” as follows:

“Confirmation test,” “confirmed test” or “confirmed drug or alc ohol test” means a second analy tical procedure used to identify the presen ce of a specific drug or alcohol or metabolite in a specimen, which tes t must be different in scientific princip le 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 provide s that a “covered employer may test an employee for any drug defined in § 50-9-10 3, and at any time set out in § 50-9-106.” Tenn. Code Ann. § 50-9-104(a) (2016). The reafter, 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 establis hed by regulations of the5 United States department of tra nsportation or such other recogn ized authority approved by rule . . . governing drug testi ng.” Tenn. Code Ann. § 50-9- 107(c) (2016).

The rules pertaining to Tennessee’s Drug-Free Workplace Progra m also contain relevant provisions. First, “nothing in these rules shall be c onstrued as authorizing any employer to test any employee or applicant for alcohol or drugs in any manner inconsistent with federal constitutional or statutory requireme nts.” 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]pecime ns shall be obtained at the treating facility or a designated collection site under the procedures set forth in these rules and transported to a n approved testing laboratory.” Tenn. Comp. R. & Regs. 0800-02-12-.05(5)(a). The post- accident drug test must be comp rised 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 s pectrometry (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 positiv e” 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” lev el for an initial screening

is 50 ng/ml and the “presumptiv ely positive” level for a confir mation screening is 15 ng/m l. Id.

In the present case, a blood specimen of the injured worker wa s 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 medic al release from the injured worker or his representative pr ior to conducting the initial sc reening. The January 3, 2017 lab report does not indicate the date the blood sample was collected from the injured worker. The “result” indi cates that the test for “Carb oxy-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 r esult was from an “initial” immunoassay. Moreover, the lab report indicates that the “spe cimen security seal is missin g.”

The trial court concluded that Employer had failed to show goo d cause as to why its motion to compel should be granted. We agree. Based on ou r review of the record, the trial court was not presente d with evidence that the Januar y 3, 2017 laboratory report constituted a properly conducted “ initial screen” as described in Tenn. Comp. R. & Regs. 0800-02-12-07(2). Employer presen ted no evidence that chain-of -custody procedures

were followed in accordance with Tennessee Code Annotated secti on 50-6-107(c), especially in light of the fact that the laboratory report on w hich it relies stated that the specimen’s security seal was missing. Employer presented no ev idence as to when the blood sample was collected from Employee.6 Moreover, although the laboratory identified a “positive” resu lt for “CarboxyTHC,” which Employer asserted was an inactive ingredient in mar ijuana, Employer presented no evidence that the t est result was “positive” for p urposes of obtaining a confirmation test, especially since the result was below the th reshold to be considered “presumptively positive” in accordance with Tenn. Comp. R. & Re gs. 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 st atutes 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 Emp loyer is not a certified drugfree workplace, then it is not subj ect to the rules governing i nitial 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 confirmatio n 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 represen tative of the laboratory currently in possession of the bl ood specimen indicating it wou ld not conduct a

confirmation test without a me dical release or court order.

Thus, while we conclude that discovery in Tennessee is general ly broad and the rules governing discovery are to be liberally construed, a part y must still pres ent 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 concl usion 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 co urt and remand this case for any further proceedi ngs that may be necessary.TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Willie Guinn and Judy G uinn

,

a s representative s of t he Estate of Shannon

Scott Gu inn, 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 Bo ard’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 C ertified

Mail First Class

Mail Via

Fax Fax

Number Via

Email Email Address

J eff er y 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