     FILED
   Jun 05, 2018
   11:05 AM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
workers' compensation. Mr. Polk said he then continued to request a physician from his
supervisor but Ms. Collins instead "set him up" with a "personal trainer" at Delta. He
continued seeing the personal trainer for three weeks, all the while "telling his
supervisor" he needed to see a physician. Finally, on June 7 or 8 1, Ms. Collins called Mr.
Polk to arrange a doctor's appointment and Ms. Collins told him the appointment was set
"a week and a halflater."

        Delta did not contest the occurrence or the logistics of the accident. However, Ms.
Collins, Delta's workers ' compensation coordinator, said she had difficulty contacting
Mr. Polk to set a doctor's appointment. She left him several messages and finally "came
in early" to see Mr. Polk at the end of his tlrird shift. She said Mr. Polk first asked to see a
physician on June 2, and she provided a panel of orthopedic surgeons. On June 7, Delta
provided a second panel, consisting of general practice physicians, after Mr. Polk
complained about the delay in seeing an orthopedic doctor. Prior to June 2, Ms. Collins
said Mr. Polk was content to see the personal trainer who Ms. Collins explained helped
employees with non-invasive therapy and over the counter medications.

       On June 7, Ms. Collins scheduled a dtug test during Mr. Polk's night shift. Delta
uses a third-party testing agent who comes to the plant for testing because the panel
physicians do not perform dtug tests. She confirmed Delta was a part of the Tennessee
Drug Free Workplace Program (DFWP) on May 22. She said the DFWP rules do not
provide a specific time within which a drug test is to be performed.

         Mr. Polk reported to work on June 7 and was called to the "front." There, an
employee of WorkCare Resources, Delta' s testing agent, asked him to submit to a
urinalysis. Mr. Polk was given the opportunity to drink water and then entered the
restroom. By his account, immediately upon producing a specimen, the testing nurse
"busted into the bathroom" and grabbed the specimen cup. The nurse set the cup on the
sink, left the room, and returned with another cup. The nurse then poured the first
specimen into the second cup and told Mr. Polk the sample did not register the necessary
temperature required for a valid test. The nurse allowed Mr. Polk to rehydrate before
asking him to produce another specimen.

       When Mr. Polk entered the restroom the second time, the nurse asked him to lift
his shirt above the waist and lower his pants to mid-thigh. When Mr. Polk did so, the
nurse observed a container of "yellow liquid" hidden in a sock inside Mr. Polk' s
unde1wear. According to Mr. Polk, the nurse said, "This test is over" and left the area.
Delta terminated Mr. Polk's employment later that night.



        1
          Mr. Polk worked on third shift at Delta so he reported to work on one day but finished the next, thus the
dates used in this order reflect that overlap.

                                                             2
        Eddie Holloway was the testing nurse. He explained Mr. Polk's first urine sample
was cooler than the minimum temperature required for a valid sample, meaning it was
likely not produced at the time of testing. Mr. Holloway "discarded" the sample but,
before doing so, retrieved a second cup to show Mr. Polk that the temperature-measuring
strip on the first cup had not failed; in other words, "for Mr. Polk's benefit," Mr.
Holloway confirmed the urine's low temperature with the second cup. Mr. Holloway
confirmed discovering the container of yellow liquid in Mr. Polk's pants and confirmed
he then terminated the test. He said the testing that night, including termination of testing
after discovering contraband, was performed according to protocol.

         Mr. Polk admitted he concealed the urine container in his underwear. He explained
he did so because he had used medications belonging to friends and family members to
ease his pain. Because his late grandmother experienced dangerous drug interactions, Mr.
Polk said he wanted to insure the drugs had "cleared" his body before receiving any
drugs from Delta's physicians. So, he purchased several home drug testing kits and began
"testing [himself] every four hours" beginning June 3. On June 7, Mr. Polk said he had
just produced a specimen for his personal testing and placed it in his pocket when called
to take the drug test. He said he placed the container in his pants because he knew that the
nurse would ask him to "empty his pockets" and he assumed the nurse would accuse him
of trying to "fake" the test when the container was discovered. He argued that if he were
trying to falsify the test, then he would have used the concealed urine for the first sample.

       Mr. Polk argued that if Delta had tested him immediately after the accident, then
the questioned test would not have been an issue. He equested that Delta provide him a
physician to completely evaluate all injuries sustained in the accident.2 Delta maintained
its denial based upon Mr. Polk's attempted falsification of the test, which it argued
amounted to a refusal to test.

                              Findings of Fact and Conclusions of Law

                                              Motion to continue

       The Court must address Mr. Polk's request for a continuance of the Expedited
Hearing filed on Friday, May 25, the last business day before the hearing. As grounds,
Mr. Polk stated: "Motion for continuance for more time to gather evidence to supp011 my
claim. I have just recently been contacted by an Ombudsman attorney (Mr. J. Hicks) and
I would like to ask the court to grant me more time to attempt to collect more evidence to
support my case."

         2
           Mr. Polk saw the orthopedic surgeon he chose from the panel on one occasion under private insurance
after Delta denied his claim. He stated the physician did not examine every body part that he injured in the accident.
Mr. Polk requested temporary disability benefits in his Petition for Benefit Determination but admitted working full
time at Delta after the injury at his regular wage until his termination.

                                                              3
        The Comt attempted to contact the parties on May 25 to no avail. Thus, the Comt
advised the parties it would hear the motion before the hearing on May 29. When the
Court inquired as to what additional "evidence" he needed, Mr. Polk replied that he
wanted video surveillance footage from Delta of both the aisle where the fork truck
accident occurred and of the testing room. He contended the accident footage, if it
existed, would show he "did not cause the accident." He contended footage of the testing
room would show Delta compelled him to "take the drug test twice." The Comt asked
Mr. Polk three times if he sought any additional evidence apa1t from the videos to which
he said, "No." During argument, Delta conceded the occmTence of the accident and that
its drug testing agent did ask Mr. Polk to provide two specimens.

       Practices and Procedures Rule 2.02B. provides that continuances of an Expedited
Hearing must be supported by "good cause" as determined by the Judge. Here, the only
basis for Mr. Polk's continuance motion was his request to obtain videos that, in the
Court's discretion, had no bearing on his request for benefits. Delta did not contest either
the accident or how it occurred. It did not deny Mr. Polk was asked to provide two urine
specimens. Thus, Mr. Polk pointed to no additional evidence to adequately present his
case. Moreover, he stated he spoke with an Ombudsman attorney for the first time on
May 18, one week before filing his motion at midday of the day before a holiday
weekend. The Court found no cause to continue the hearing and ordered the parties to
proceed.

                                 Illegal drug use defense

        Mr. Polk 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)(l) (2017).
The Comt holds he did so as to the requested medical benefits.

       Delta asserted the defenses allowed it under the DFWP. Tennessee Code
Annotated section 50-6-110(a)(3) provides that no compensation shall be allowed for an
injury resulting from an employee's intoxication or illegal drug use. Because Delta was
pait of the DFWP, any drug use by an injured employee is presumed to be the proximate
cause of his injury. A refusal to take a drug test creates the same presumption. Tenn.
Code Ann. § 50-6-110(c)( 1) and (c)(2). Mr. Polk may rebut either of these presumptions
by "clear and convincing" evidence, meaning there is no serious or substantial doubt
regarding the facts supporting rebuttal and they are "highly probable." Teter v. Republic
Parking Sys., 181 S.W.3d 330, 341 (Tenn. 2005). Here, the Court holds the presumption
of proximate cause inapplicable because the test given Mr. Polk did not meet the
requirements of the DFWP.

       Initially, the Court finds Mr. Polk did attempt to manipulate the drug test of June 7
and therefore "refused" to take that test. Tennessee Code Annotated section 50-9-107(a)


                                                4
provides that "all specimen collection and testing for drugs and alcohol . . . shall be
performed in accordance with the procedures provided for by... 49 CFR [Code of
Federal Regulations] part 40." CFR § 40.191 (10) provides that anyone who uses a
"device that could be used to interfere with the collection process" is deemed lo have
"refused to take a drug test." Mr. Polk admits he possessed a container of urine on his
person on June 7 and such action, by definition, establishes he "refused" the test on that
day. Fmther, it finds his explanation of why he concealed the container implausible and a
direct indictment of his credibility. Nevertheless, the Court finds the outcome turns not
on Mr. Polk's credibility but, instead on the ill-timed administration of the drug test
sixteen days after the incident of May 22.

        Tennessee Code Annotated section 50-9-103(8) provides that a "drug test" is one
administered pursuant to the "regulations governing drug testing adopted by the United
States department of transportation or other recognized authority approved by rule by the
commissioner of labor and workforce development." The version of Tennessee
Compilation Rules and Regulations 0800-02-12-.05(5)(c) in effect on May 22, 2017,
provided that "in the case of non-emergency injuries reported to the covered employee
after the fact, the injured employee must submit to testing at the time the injury is entered
into the covered employer's OSHA 200 Log or any authorized or required replacement
for the OSHA 200 Log." 3 The OSHA regulations as of May 22, 2017 provided that an
injury was work related if an "event . . . in the work environment either caused or
contributed to the resulting condition'~ and "work-relatedness is presumed for injuries ...
resulting from events ... occurring in the work environment." 29 C.F.R. § 1904.5 (2017).

        Here, Delta did not contest the "event" of May 22 or that it occurred in the "work
environment." Thus, the May 22 event triggered the provisions of the DFWP rules
regarding when Delta must enter the injury for OSHA purposes. In tum, Delta should
have administered the drug test to Mr. Polk at that time rather than sixteen days later on
June 7.

        The Court holds that the drug test of June 7, though manipulated by Mr. Polk, did
not meet the requirements for drug testing under the applicable statute and rules of the
DFWP. Thus, Mr. Polk is entitled to medical benefits in the form of a panel of physicians
to evaluate his alleged injuries of May 22. See, Lewis v. Merry Maid, 2016 TN Wrk.
Comp. App. Bd. LEXIS 19 (Apr. 20, 2016) (an employee was entitled to a panel when
she reported a specific incident to two different supervisors and the employer did not
refute that reporting).

        THEREFORE, THE COURT ORDERS as follows:

        3
           The rule governing post-accident drug testing was amended effective May, 2018 to provide no specific
time for testing other than "after an accident that results in an injury to any employee." Tenn. Comp. R. & Reg.
0800-02-12-.05(5)(a)(effective May, 2018).

                                                           5
..
         1. Delta shall provide Mr. Polk a panel" of physicians pursuant to Tennessee Code
            Annotated section 50-6-204(a)(3)(A)(i) to evaluate his injury of May 22, 2017.

        2. This matter is set for a Status Hearing on Monday, August 20, 2018, at 11:00
           a.m. Central Time. The parties must call 731-422-5263 or toll-free 855-543-
           5038 to participate in the Status Hearing.


     ENTERED this the 5th day of June,    2~1   .




                                          APPENDIX

     Exhibits:

        1.   Affidavit of Ricky Polk
        2.   Panel of orthopedic physicians
        3.   Panel of general practitioners
        4.   Delta's Drug Free Workplace Application and Acceptance Confirmation
        5.   Drug Testing Custody and Control Form
        6.   Wage Statement

     Technical record:

        1. Petition for Benefit Determination
        2. Dispute Certification Notice
        3. Order Setting Case for Show Cause Hearing
        4. Order Granting Additional Time Following Show Cause Hearing
        5. Request for Expedited Hearing
        6. Employer's Position Statement for Expedited Hearing
        7. Employer's Witness and Exhibit List for Expedited Hearing
        8. Employee's Motion for Continuance of Expedited Hearing
        9. Employer's Response to Motion for Continuance
        10. Certificate of Non-Representation (CNR)


                                                    6
                                 CERTIFICATE OF SERVICE

          [ hereby certify that a true and correct copy of this Expedited Hearing Order was sent
  to the following recipients by the foUowing methods of service on this the 5 th day of June,
  2018.

Name                                    First Class       Via Email       Service Sent To:
                                           Mail
Ricky Polk,                                  x                x          513 Reid Ave.,
Self-Represented Employee                                                Brownsville, TN 38012
                                                                         rickypolk@gmail.com
Hailey David, Esq.,                                           x          davidh@waldrophall.com
Attorney for Employer




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