Isom, Brenden v. Cherokee Truck Equipment, LLC , 2019 TN WC 162 ( 2019 )

FILED
Nov 20, 2019
09:25 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Brenden Isom, ) Docket No.: 2019-01-0545
Employee, )
V. )
Cherokee Truck Equipment, LLC, ) State File No.: 53284-2019
Employer, )
And )
Bridgefield Casualty Ins. Co., ) Judge Audrey A. Headrick
Insurance Company. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This case came before the Court on Brenden Isom’s Request for an Expedited
Hearing on the record.’ Mr. Isom requested medical and temporary disability benefits for
a left-arm injury. Cherokee Truck denied his claim for violation of its Drug-Free Work
Place policy. The issue is whether Mr. Isom is likely to prevail at a hearing on the merits
in rebutting the presumption that his illegal drug use proximately caused his injury. For
the reasons below, the Court holds he is not.
History of Claim
On July 25, 2019, Mr. Isom fractured his arm when he fell approximately five feet
from a stand while painting a truck for Cherokee Truck. Cherokee Truck denied Mr.
Isom’s claim on July 31 for violation of its DFWP policy after he tested positive for
marijuana on his post-accident drug tests.
' The Court issued a docketing notice allowing the parties until November 15 to file objections or submit
position statements. The docketing notice also allowed Cherokee Truck until November 15 to submit
additional evidence.
Mr. Isom testified by affidavit that he smoked marijuana in his home four days
before his accident but disputed that his drug use had anything to do with his accident.’
Lekh Sharma, PhD, TC (NRCC), the director of a toxicology lab, testified by
affidavit. Dr. Sharma stated the post-accident drug tests did not “confirm[ed]
intoxication.” She indicated that “[uJrine drug screens are inherently unreliable to
determine intoxication at or near the time of the test.” Dr. Sharma provided an opinion
that “no presumption should be drawn from these drug screen tests . . . regarding whether
an individual was or was not intoxicated at or near the time the test was taken.” She also
stated that “the test results . . . are not inconsistent with use of marijuana four or more
days prior to the test being taken for the reasons mentioned herein.”
Findings of Fact and Conclusions of Law
Standard Applied
Mr. Isom must present sufficient evidence from which the Court can determine he
is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2019).
The Court holds he did not.
Analysis
No one disputed that Cherokee Truck was part of Tennessee’s DF WP, and Mr.
Isom’s drug tests were positive for marijuana. Tennessee Code Annotated section 50-6-
110(c)(1) affords a presumption that Mr. Isom’s drug use was the “proximate cause” or a
substantial factor in producing his injury. However, Mr. Isom may rebut this
presumption by “clear and convincing evidence,” which means “there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Kizer v. Express Servs., Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 17, at *10 (Apr. 20,
2018). For the following reasons, the Court finds Mr. Isom did not rebut the presumption
that his drug use caused his injury.
Mr. Isom’s proof is twofold: (1) his own testimony that he was not impaired at the
time of his accident; and, (2) his toxicology expert’s opinion that the drug tests did not
confirm intoxication due to the unreliability of urine tests. However, Mr. Isom’s
testimony that he was not impaired is insufficient to rebut the presumption that the drug
use was the proximate cause of his accident. Dr. Sharma’s opinion is also insufficient.
Despite Dr. Sharma’s opinion about urine tests, Mr. Isom did not present evidence to
show that Cherokee Truck’s drug-testing did not fully comply with the DF WP rules that
govern the process. Likewise, Dr. Sharma’s equivocal opinion that the drug tests did not
? The Court sustained Cherokee Truck’s hearsay objection to statements contained in Mr. Isom’s affidavit
allegedly made by Cherokee Truck employees.
confirm intoxication falls short of clear and convincing evidence to rebut the
presumption. Therefore, the Court holds Mr. Isom is not likely to prevail at a hearing on
the merits in rebutting the presumption by clear and convincing evidence that his illegal
drug use proximately caused his injury.
IT IS, THEREFORE, ORDERED as follows:
1. The Court denies Mr. Isom’s request.
2. This case is set for a Status Hearing on Wednesday, January 22, 2020, at 10:30
a.m. Eastern Time. The parties must call (423) 634-0164 or toll-free at (855) 383-
0001 to participate. Failure to call may result in a determination of the issues
without your participation.
ENTERED November 20, 2019.
Qu Snorrdoc Li
AUDREY A. HEADRICK
Workers’ Compensation Judge
Exhibits:
Pe SA eh ee
APPENDIX
Form C-20 First Report
Form C-23 Notice of Denial
Form C-41 Wage Statement
Form C-42 Panel
Quest Diagnostics Laboratory Report, July 25, 2019
Medical records of American Family Care
Medical records of Dr. Brett Sanders
Affidavit of Lekh Sharma, PhD, TC (NRCC)
Affidavit of Brenden K. Isom
10. DFWP documents
11. Personnel documents
Technical record:
l.
2
3.
4
Petition for Benefit Determination
. Dispute Certification Notice
Request for Expedited Hearing
. Cherokee Truck Equipment’s Motion to Extend Objection to Request for a
Decision on the Record Deadline
Objection of Brenden Isom to Cherokee Truck Equipment’s Motion to Extend
Objection to Request for a Decision on the Record Deadline
. Order Granting Motion to Extend Objection to Request for a Decision on the
Record Deadline
Cherokee Truck Equipment’s Notice of No Objection to a Decision on the
Record
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on November 20, 2019.
Name Certified | Email | Service sent to:
Mail
Mike Wagner, Xx maw(@wagnerinjury.com
Employee’s Attorney
Nick Peterson, xX nick.peterson@petersonwhite.com
Employer’s Attorney
p vy re) tan Lua marry)
PENNY SHRUM, COURT CLERK |"
we.courtclerk(@tn.gov
aE
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau's
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
Statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litiganis: Help from an Ombudsman is available at 800-332-2667.
LB8-1099 rev. 10/18 Page 1 of 2
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
JWaww.tr.pow/labor-wid/weamp shtml
we.courtclerk@tn.gav
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
{List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Com pensation Claims at
to the Warkers’ Compensation Appeals
Board, [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additionai Information
Type of Case [Check the most appropriate item]
C] Temporary disability benefits
{1 Medical benefits for current injury
QO) Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party):
Address:
Party’s Phone: Emait:
At Hearing: DEmployer DEmployee
Attorney’s Name: BPR#:
Attorney's Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
RDA 11082
Emplayee Name: SF#: Dol:
Abpellee(s)
Appellee (Opposing Party): At Hearing: Employer Employee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney's Address: Phone:
Attorney's City, State & Zip cade:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mall, postage prepaid, to all parties
and/or thelr attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of ,20__
[Signature of appellant or attorney for appellant]
LB-1099_ rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
h
AFFIDAVIT OF INDIGENCY
, having been duly swom according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
4. Full Name:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. | am employed by:
2. Address:
4, Date of Birth:
Relationship;
Relationship:
Relationship:
Relationship:
My employer's address Is:
My employer's phone number is:
7, My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or axpect to receive money fram the following sources:
AFDC $
SS $
Retirement $
Disability $
Unemployment $
Worker's Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
beginning
beginning
beginning
beginning
beginning
beginning
RDA 11082
9. My expenses are:
RenttHouse Payment $ permonth Medical/Dental § per month
Groceries $ per month Telephona $ per month
Electricity $_ sper month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $_ —. per month
Car $ per month
Other $ per manth (describe: )
10. Assets:
Automobile 3 (FMV)
Checking/Savings Acct. §
House $ (FMV)
Other $ Destribe:
11. My debts are:
Amount Owed To Whom
thereby declare under the penalty of perjury that the foregoing answors are true, correct, and complete
and that | am financially unable to pay the costs of this appaal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of ,20
NOTARY PUBLIC
My Commission Expires!
LB-1108 (REV 11/15) RDA 11082