              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                 WORKERS’ COMPENSATION APPEALS BOARD

Jared Kizer                                 ) Docket No. 2017-07-0073
                                            )
v.                                          ) State File No. 81955-2016
                                            )
Express Services, Inc., et al.              )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Allen Phillips, Judge                       )

                     Reversed and Remanded—Filed April 20, 2018

In this interlocutory appeal, the employee suffered amputation of three fingers on his
right hand when his hand became caught in a machine he was operating. The employer
denied the claim based on the employee’s positive post-accident drug test results and its
status as a participant in Tennessee’s Drug-Free Workplace Program. Following an
expedited hearing, the trial court concluded the employee had rebutted the presumption
that his drug use was the proximate cause of his injury by clear and convincing evidence,
as provided by Tennessee Code Annotated section 50-6-110(c) (2017). The employer
has appealed. Having carefully reviewed the record, we reverse the trial court’s decision
and remand the case.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, joined. Judge David F. Hensley filed a dissenting
opinion.

Gregory Fuller, Brentwood, Tennessee, for the employer-appellant, Express Services,
Inc.

Spencer R. Barnes, Jackson, Tennessee, for the employee-appellee, Jared Kizer

                           Factual and Procedural Background

      Jared Kizer (“Employee”), a resident of Henderson County, Tennessee, was
employed by Express Services, Inc. (“Employer”), a temporary employment agency.
Employee was assigned to work at Pinnacle Foods (“Pinnacle”), a frozen foods
processing plant, where he worked for approximately seven months. On October 20,

                                           1
2016, Employee was operating a “splitter” machine, which cut blocks of frozen fish into
fish sticks. Employee’s shift began at 4:00 p.m. At approximately 9:00 or 9:15 p.m., the
splitter he was operating became jammed. He testified he pushed the “e-stop” button to
turn the machine off and then lifted a hood that was designed to disengage the machine. 1
He testified he lifted the hood all the way up, which was the only position that would
disengage the machine, and used both hands to unclog the machine. There is some
dispute regarding whether he lifted the hood completely, which would cause it to catch
and remain open, or whether he was holding the hood partially raised with his left hand
while using his right hand to remove the clog. Regardless, while Employee’s right hand
was in the machine, it engaged and traumatically amputated Employee’s right index
finger, long finger, and ring finger, and caused injury to his right small finger. 2

       Employee was transported to the hospital, where he underwent emergency
treatment for his injury. In the course of his treatment, he submitted to a urine drug
screen. The drug test was positive for morphine, which he had been given in the
emergency room, and for THC, a metabolite of marijuana.

         It is undisputed that Employer is a participant of Tennessee’s Drug-Free
Workplace Program (“DFWP”) and that Employee’s drug screen was positive for THC
well beyond the prohibited level. Accordingly, Employer denied the claim in its entirety
based on Tennessee Code Annotated section 50-6-110(c)(1), which provides “[i]n cases
where the employer has implemented a drug-free workplace pursuant to chapter 9 of this
title, if the injured employee has, at the time of the injury . . . a positive confirmation of a
drug . . ., then it is presumed that the drug . . . was the proximate cause of the injury.”
The parties agree that this presumption applies in this case and that the burden of proof
shifted to Employee to rebut the presumption “by clear and convincing evidence that the
drug . . . was not the proximate cause of the injury.” Id.

        In preparation for the expedited hearing, the parties took the depositions of Dr.
Kenneth Ferslew, a toxicologist; Dr. Michael Dolan, Employee’s treating physician; and
Dr. Mario Figueroa, the emergency room physician who treated Employee. Dr. Ferslew
testified regarding the presence of THC in Employee’s urine drug screen and the effects
of marijuana on users of the drug. Specifically, Dr. Ferslew stated that “the presence of
[THC] in [Employee’s] urine only confirms his prior use of [marijuana] and excretion of
an inactive metabolite. It does not prove he was under the influence . . . at the time of the
injury.” Moreover, “[o]ther forensic evidence would be needed to prove when he used
marijuana and the period of pharmacodynamic effect. This result is consistent with
[Employee’s] admission of prior smoking of marijuana a day or two prior to the injury.”

1
    In various parts of the record, this mechanism was described as a “door,” a “hood,” and a “guard.”
2
 There is no dispute that the injury occurred as generally described by Employee or that the injury
necessitated extensive medical care. Thus, we do not discuss the course of Employee’s medical treatment
beyond what is necessary to address the issues raised in this appeal.
                                                      2
When questioned regarding whether the toxicology screening would indicate Employee
was intoxicated or impaired, Dr. Ferslew responded “[i]t can’t prove he was, it can’t
prove he wasn’t.”

       The parties also questioned the emergency room physician, Dr. Figueroa, about
whether Employee appeared to be impaired upon his arrival at the emergency room. Dr.
Figueroa stated he did not observe any outward signs of intoxication. He further
explained that Employee denied using illegal drugs and, after receiving that response, Dr.
Figueroa did not pursue the issue any further.

        Employee admitted he was a habitual marijuana smoker. His testimony regarding
how often he used marijuana was inconsistent, but he generally testified he smoked
marijuana every other day in the morning before going to a job on a family friend’s farm.
He denied smoking before beginning his shifts at Pinnacle, which started at 4:00 p.m. He
initially denied smoking on the day of the accident, although he testified at the expedited
hearing that he had smoked a joint the morning of his injury. He was unable to testify
with any certainty regarding how much he smoked, and his testimony was inconsistent
with respect to whether he smoked only in the mornings and whether he ever smoked two
days in a row. He testified he believed his marijuana usage affected his memory.

        Phillip Miller, the lead maintenance technician for Pinnacle, testified at the
expedited hearing. He was also trained as an emergency medical technician and was the
first person to assist Employee after the accident. He testified Employee did not appear
intoxicated after the accident, but acknowledged he was not trained to identify signs of
marijuana intoxication in habitual users. With respect to the functioning of Employee’s
machine, Mr. Miller testified as follows:

      Q:    As lead maintenance technician, did you do anything with this
      machine once [Employee] was offsite and headed to get medical attention?

      A:     Yes, sir.

      Q:     Tell the Court what you did, please.

       A:     Upon the incident, the manager, which was plant manager at the
       time, my boss, after [Employee] . . . left, we had to verify that all safety
       devices were working on this equipment, such as interlocking devices and
       E-stop.

       Q:    Okay. Were they working?

       A:    Yes, sir.


                                            3
During cross-examination, he elaborated on this point:

       Q:     Okay. And based on your inspection, you found that when you hit
       that E-Stop, that first line of defense in shutting this machine off, that that
       E-Stop worked?

       A:     That’s correct.

       Q:     Okay. So if somebody hit that E-Stop, that machine would have
       shut off; is that correct?

       A:     That’s correct.

       ....

       Q:     Tell me how, based upon your investigation, your review of these
       working parts of this machinery, how this machine – how this accident had
       to have occurred?

       A:    Okay. Well, when I first approached the machine to inspect, the first
       thing was we checked the E-Stop. Killed – hit the E-Stop and killed the
       machine and pulled the E-Stop. Started it back up. And the next thing we
       was [sic] checking was the interlock switch on the hood. We found that
       you could actually – due to the distance, which were [sic] the hood and the
       main contact with the secondary device on – to kill the complete interlock,
       you could actually hold the hood in between point and reach in. And by
       holding it in between, the machine still would cycle.

       The trial court accepted into evidence, over Employer’s objections, a report
produced by the Tennessee Occupational Safety and Health Administration (“TOSHA”).
With respect to the injury suffered by Employee, the TOSHA investigator concluded
Pinnacle had committed a “[s]erious” violation, finding that “[m]achine guarding was not
provided to protect operator(s) and other employees from hazard(s) created by moving
parts.” Specifically, with respect to the machine on which Employee was injured, the
investigator determined that “the method of guarding on the filler box of Splitter #2 in the
Fish Processing Area was not adequate. The limit switch on the filler box top was not
functioning, therefore allowing the pusher to cycle while the top was open; exposing the
employees to injury.”

       Following the expedited hearing and the trial court’s consideration of the TOSHA
report, the trial court concluded Employee had met his burden of rebutting, by clear and
convincing evidence, the presumption that his intoxication was the proximate cause of his
injury. In reaching that conclusion, the court observed “[t]here is no serious or

                                             4
substantial doubt that the machine should not have engaged when it did, irrespective of
[Employee’s] earlier marijuana usage.” The court additionally stated that, although
Employee’s testimony “was imperfect, . . . the only evidence in the record is that he did
not appear impaired on the night of the injury. Moreover, the expert toxicology proof
here does not establish THC caused [Employee’s] accident.” 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) (2017). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2017).

                                          Analysis

        When an employer has qualified as a certified drug-free workplace,
Tennessee’s Workers’ Compensation Law provides a rebuttable presumption that, in
circumstances where an injured worker tests positive for alcohol or certain drugs as
the result of a properly conducted post-accident drug screening, the employee’s use
of alcohol or drug(s) was the proximate cause of the injury. Tenn. Code Ann. §
50-6-110(c)(1). To rebut such a presumption, the employee has the burden of
proving, by clear and convincing evidence, that his or her drug or alcohol use was not
the proximate cause of the injury. Id. The Tennessee Supreme Court has explained that,
to establish clear and convincing evidence, the party with the burden must show
“there is no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.” Mansell v. Bridgestone Firestone N. Am., Inc., 417 S.W.3d
393, 411 (Tenn. 2013) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)).

       In the present case, the parties stipulated, or the evidence was uncontradicted, that
Employer was a certified drug-free workplace and that Employee used an illegal drug on
the day of the accident. It is further uncontradicted that the toxicology screening revealed
                                            5
a metabolite of THC at a level “above the cutoff,” indicating a “positive result.”
Employee admitted he was a habitual user of marijuana and had smoked the morning of
the accident. Therefore, Employer was entitled to a presumption that Employee’s drug
use was the proximate cause of his injury.

        It was then Employee’s burden to prove, by clear and convincing evidence, that
his drug use was not the proximate cause of his injury. However, to consider this case in
its proper context, we must also consider the burden of proof applicable to expedited
hearings. As we have noted numerous times, at an expedited hearing, an employee need
not prove every element of his or her claim by a preponderance of the evidence, but must
come forward with sufficient proof to convince the trial court he or she is likely to prevail
at trial in satisfying the ultimate burden of proof with respect to every essential element
of the claim. See, e.g., McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *8 (Tenn. Workers’ Comp. App. Bd. Mar.
27, 2015). Therefore, under the circumstances presented in this case, Employee had the
burden of coming forward with sufficient evidence at the expedited hearing to convince
the trial court he would likely prevail at trial in rebutting the presumption of proximate
causation by clear and convincing evidence. We disagree with the trial court that
Employee met this burden.

                              Admissibility of TOSHA Report

        During the expedited hearing, Employee offered into evidence a report generated
by a TOSHA investigator. Employer objected to the admissibility of this report on
numerous grounds. First, it argued the report was hearsay. Second, it argued even if the
report constituted a “public record” and fell under a hearsay exception pursuant to Rule
803(8) of the Tennessee Rules of Evidence, it lacked sufficient trustworthiness to render
it admissible. Third, it argued the report contained irrelevant information concerning
alleged incidents other than the incident at issue in this case. Fourth, it argued Employer
had no opportunity to “participate in this investigation, present evidence, cross-
examination, or discuss anything.” Finally, it argued the report is “far more prejudicial
than it is probative.”

        In discussing the admissibility of this report with counsel for Employee, the trial
court asked, “[d]oes it have any bearing on the drug-free workplace and the causation of
the injury in any way, in your opinion?” Employee’s counsel responded, “I don’t believe
that it does.” The trial court nonetheless concluded the report was admissible under Rule
803(8) (the public records hearsay exception) and Rule 901(b)(7) (authentication of
public records).

        In concluding Employee had overcome the presumption that Employee’s drug use
was the proximate cause of his injury by clear and convincing evidence, the trial court
relied, in part, on the TOSHA investigation. Specifically, the court cited the TOSHA

                                             6
report in concluding one or more of the machine’s safety devices malfunctioned. The
court then concluded, “[t]here is no serious or substantial doubt that the machine should
not have engaged when it did, irrespective of [Employee’s] earlier marijuana usage.”
Thus, the trial court reviewed and relied, at least in part, on the TOSHA report to address
the cause of this accident.

        The nature of the information in the TOSHA report upon which the trial court
partially relied reasonably can be characterized as expert opinion. Rule 702 of the
Tennessee Rules of Evidence allows expert testimony from “a witness qualified as an
expert by knowledge, skill, experience, training, or education.” Tenn. R. Evid. 702. 3
Although we have found no cases in which a Tennessee appellate court has considered
the admissibility of a TOSHA report as expert proof, courts in other jurisdictions have
considered similar issues. For example, the Eleventh Circuit Court of Appeals concluded
that only factual findings from an OSHA report were admissible, but “legal conclusions”
were not. Hines v. Brandon Steel Decks, Inc., 886 F.2d 299, 302 (11th Cir. 1989).
Similarly, a Pennsylvania court concluded “if a record is in the nature of an expert
opinion . . ., the record’s conclusions or impressions are not admissible as a business
record unless the person who rendered the opinion is available for cross-examination.”
Labor Ready Ne., Inc. v. Workers’ Comp. Appeal Bd., No. 486 C.D. 2017, 2018 Pa.
Commw. Unpub. LEXIS 107, at *27 (Commw. Ct. of Pa. Feb. 22, 2018). See also Danzy
v. Tri-Lift, Inc., No. NNHCV106008373S, 2012 Conn. Super. LEXIS 1471, at *3 n.4
(Conn. Sup. Ct., June 5, 2012) (OSHA report deemed inadmissible because proponent
failed to establish proper foundation).

        In the present case, the TOSHA investigator reached a technical conclusion as to
the apparent malfunction of the hood lift and the ultimate cause of the injury, and the trial
court noted these conclusions in addressing the cause of Employee’s injury. However,
Employee, as the proponent of the TOSHA report, did not establish the “knowledge,
skill, experience, training, or education” of the report’s author, as required by Rule 702.
He also did not distinguish between factual information and expert conclusions in the
report. The report was not accompanied by an affidavit. 4 Finally, Employee did not
depose the author of the report or subpoena the investigator to the hearing, such that the
investigator would be subject to cross-examination.



3  In his dissent, our colleague argues that Employer did not cite Rule 702 in its objections to the
admissibility of the TOSHA report and, therefore, we should not consider Rule 702 in our analysis of the
admissibility issue. We conclude, however, that Employer’s general objections to admissibility,
including its objections that it had no opportunity to participate in the TOSHA investigation or engage in
cross-examination following issuance of the report, provide a basis for our analysis.
4
 Such an affidavit likely would have been admissible at an expedited hearing pursuant to Tenn. Comp. R.
& Regs. 0800-02-21-.14 (2016).
                                                    7
       In short, we conclude Employee failed to lay a proper foundation for the
introduction of expert conclusions contained in the TOSHA report. To the extent the trial
court relied on such expert conclusions to determine the proximate cause of Employee’s
injury, this was error. However, because the trial court couched its reliance on the
TOSHA report as cumulative of other evidence, we conclude any such error was
harmless under the circumstances presented in this case.

                                Expert Medical Testimony

        The trial court acknowledged the equivocal nature of the expert medical testimony
offered at the expedited hearing. The emergency room physician, Dr. Mario Figueroa,
testified he saw no obvious signs of intoxication, but also admitted he could not state
whether Employee was impaired “in another way.” The toxicologist, Dr. Kenneth
Ferslew, explained that the urinalysis only “confirms his prior use” of the drug. He
further acknowledged these test results could not prove or disprove whether Employee
was under the influence of the drug at the time of the accident. Instead, “[o]ther forensic
evidence would be needed to prove when he used marijuana and the period of
pharmacodynamic effect.” He testified that, based on his research, marijuana can impair
“the subject’s ability to do critical thinking in a dose-dependent manner. The higher the
dose, the more the impairment. . . . The higher the dose, the greater degree of
incoordination that occurred in these [study participants].”

       In addition, Dr. Ferslew commented that current medical literature suggests the
effects of marijuana usage typically last “for a period of two . . . maybe up to six hours
after use.” He noted, however, that chronic use of marijuana can cause “long-term
impairment,” including “slowing of thought,” “altered judgment,” “delayed reaction,”
“altered consciousness,” and “lack of eye-hand coordination.” Finally, Dr. Ferslew
explained chronic, long-term marijuana usage could “affect [the person’s] ability to
operate machinery in an effective manner” and could “affect memory.” Employee
admitted he was a habitual user of marijuana and testified at the hearing he believed his
marijuana usage affected his memory.

        Thus, we conclude the expert medical proof did not weigh in favor of Employee in
establishing a likelihood of proving, by clear and convincing evidence, that his drug use
was not the proximate cause of his injury. As a result, we cannot agree Employee
satisfied his burden at the expedited hearing of coming forward with sufficient evidence
indicating he would likely prevail on this issue at trial.

                                Proximate Cause of Injury

       In evaluating proximate cause, the trial court acknowledged Employee’s burden
and commented Employee “must produce facts that create no serious or substantial doubt
that his drug use did not cause his injury and that it is highly probable it did not.”

                                            8
Thereafter, the trial court noted the machine was equipped with two primary safety
mechanisms pertinent to this case, the “e-stop” and the hood lift, either of which should
have shut down or otherwise disengaged the machine. The trial court acknowledged
conflicting testimony regarding whether Employee engaged the e-stop prior to lifting the
hood and reaching his hand in. Employee testified he engaged the e-stop, but Mr. Miller,
who examined the machine soon after the accident, testified he found the e-stop had not
been engaged and further found the e-stop was functioning properly after the accident.

        Even assuming the hood lift malfunctioned and did not disengage the machine as
it was designed to do, we find no explanation in this record regarding whether Employee
hit the e-stop before approaching the hood lift, whether the e-stop failed to properly shut
down the machine if Employee pushed it, whether Employee forgot or elected not to hit
the e-stop, and/or whether Employee’s drug use had any causal connection to the use or
non-use of the e-stop. The posture of this case at the expedited hearing requires us to
presume his drug use was the proximate cause of his injury; thus, it was Employee’s
burden to prove, by clear and convincing evidence, that his drug use had no causal
connection to the use or non-use of the e-stop. Based on the record before us, we
conclude Employee failed to show he is likely to prevail in proving by clear and
convincing evidence that his drug use was not the proximate cause of his injury.

                                       Conclusion

        For the foregoing reasons, we reverse the trial court’s order and remand this case
for further proceedings.




                                            9
              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                 WORKERS’ COMPENSATION APPEALS BOARD

Jared Kizer                                     ) Docket No. 2017-07-0073
                                                )
v.                                              ) State File No. 81955-2016
                                                )
Express Services, Inc., et al.                  )
                                                )
                                                )
Appeal from the Court of Workers’               )
Compensation Claims                             )
Allen Phillips, Judge                           )

                                 Dissent - Filed April 20, 2018

David F. Hensley, J., dissenting.

       Respectfully, I disagree with my colleagues’ determination that the employee
failed to satisfy his burden of proof at the expedited hearing. In my opinion, the
combination of the employee’s testimony, the testimony of Pinnacle’s lead technician
considered with Pinnacle’s investigative report and the TOSHA report, and the testimony
of Dr. Ferslew and Dr. Figueroa, rebutted by clear and convincing evidence the statutory
presumption that the employee’s marijuana use was the proximate cause of his injury.

                                      The TOSHA Report

        In my opinion, the TOSHA report, excluded by the majority based on Rule 702 of
the Tennessee Rules of Evidence, was properly considered by the trial court. The
employer did not object to its admission into evidence based on Rule 702. That issue was
neither presented to nor decided by the trial court. Moreover, the employer does not raise
an issue on appeal involving Rule 702. It is not the role of the Appeals Board to address
the issue in the first instance. See Buckner v. Eaton Corp., No. 2016-01-0303, 2016 TN
Wrk. Comp. App. Bd. LEXIS 84, at *12 (Tenn. Workers’ Comp. App. Bd. Nov. 9, 2016)
(“[I]t is not our place to address . . . issues [not resolved by the trial court] in the first
instance on appeal.”).

      In its brief, the employer identified four issues for review, including “[w]hether
the TOSHA report should have been admitted, and considered, as evidence under the
hearsay rules and public records exception, pursuant to Tennessee Rules of Evidence
801-806, and 901-902.” (Underline in original.) In the trial court, the employer’s

                                               1
objection to the report’s admissibility was based upon the report’s alleged
untrustworthiness as a public record or report as contemplated in Rule 803(8). The
employer presented several arguments to the trial court as to why the report lacked
sufficient trustworthiness to be admitted into evidence, none of which addressed Article
VII of the Rules of Evidence concerning opinions and expert testimony. In its brief on
appeal, the employer presents the same arguments, asserting “it is the Employer’s
position that this should have been excluded under the hearsay rules, Tennessee Rules of
Evidence 801-806, 90[1]-902.” In my opinion, the majority should have limited its
analysis of the admissibility of the report to the arguments presented to the trial court and
raised on appeal.

       Based upon the objections to the TOSHA report’s admissibility, the trial court
properly admitted the report and accepted “what the Court considers to be relevant.” In
presenting its arguments to the report’s admissibility on appeal, the employer presents, in
essence, four arguments, none of which, in my view, have merit. The employer asserts
that (1) the report was not a certified public record and, therefore, cannot be
self-authenticating as determined by the trial court; (2) the employer was not “part of
this investigation and could not participate”; (3) the lack of information identifying
witnesses and the injured employees and the hearsay within hearsay indicate
a lack of trustworthiness of the information in the report; and (4) allowing the report
in evidence is more prejudicial than probative.

       Initially, it is to be noted that a trial court’s decision regarding the admission or
exclusion of evidence is entrusted to the court’s discretion and will not be disturbed on
appeal unless the trial court abused its discretion. State v. Banks, 271 S.W.3d 90, 116
(Tenn. 2008). As the Tennessee Court of Appeals has stated:

       Generally in Tennessee, a trial court’s ruling on the admissibility of
       evidence is within the sound discretion of the trial judge. Further, trial
       courts are accorded a wide degree of latitude in their determination of
       whether to admit or exclude evidence, even if such evidence would be
       relevant. A trial court’s evidentiary ruling will only be overturned on
       appeal upon a showing of abuse of discretion.

Green v. Smith, No. M2006-01729-COA-R3-CV, 2008 Tenn. App. LEXIS 261, at *10
(Tenn. Ct. App. Apr. 30, 2008). Here, the employer does not allege or explain how or in
what manner the trial court abused its discretion in admitting the report.

        The trial court admitted the TOSHA report pursuant to Rule 803(8), Tennessee
Rules of Evidence, which provides that “[u]nless the source of information or the method
or circumstances of preparation indicate lack of trustworthiness, records, reports,
statements, or data compilations in any form of public offices or agencies setting forth the
activities of the office or agency or matters observed pursuant to a duty imposed by law

                                             2
as to which matters there was a duty to report” are not excluded by the hearsay rule. The
trial court determined the “stamped document is a self-authenticating document” as
contemplated in Rule 901 of the Tennessee Rules of Evidence, specifically referencing
the illustration in Rule 901(b)(7) of a public record or report. The employer asserts the
report “was not a certified public record to make it a ‘self-authenticating’ document as
the trial court deemed to be at the Expedited Hearing.” However, the employer fails to
cite any authority in support of its assertion that the report must be “certified,” or that the
report was not “certified.”

        Employer asserts it “was not a part of this [TOSHA] investigation and could not
participate, as [the investigation] was against Pinnacle.” However, the employer fails to
cite any authority, nor are we aware of such authority, indicating an employer’s failure or
inability to participate in such an inspection is a basis for denying the admissibility into
evidence of the report of such investigation. Accordingly, I find no merit in the
employer’s argument.

       The employer next contests the report’s admission into evidence based upon the
report’s alleged untrustworthiness as contemplated in Rule 803(8). The employer asserts
the report includes “hearsay within hearsay statements,” as well as “numerous statements
that do not identify the witnesses by name pursuant to [Tennessee Code Annotated
section] 50-3-302(d).” The employer additionally asserts there were numerous
photographs throughout the report “that could not be authenticated to correspond to
whether it was the machine that caused the injury.” Finally, in regard to the report’s
alleged untrustworthiness, the employer asserts “because there is no witness identifiable
information in the report, [the report] also does not indicate that any of these incidents
[addressed in the report] involve [the employee] as he is not identifiable by name.” I find
no merit in the employer’s assertion that the untrustworthiness of the report justifies its
exclusion from evidence.

        Based upon the Tennessee General Assembly’s findings in the Occupational
Safety and Health Act of 1972 that the “burden on employers and employees . . .
resulting from personal injuries . . . arising out of work situations is substantial,” the
General Assembly established policies “to assure so far as possible” that workers have
“safe and healthful working conditions.” Tenn. Code Ann. § 50-3-102(a)-(b) (2017).
The legislation authorized the Commissioner of the Department of Labor and Workforce
Development (“Commissioner”) to “[i]nspect and investigate . . . the places of
employment, and question privately any employer, owner, operator, agent or employee.”
Tenn. Code Ann. § 50-3-301(2) (2017). Section 50-3-305 authorizes the Commissioner
“to compile, analyze and publish . . . all reports or information obtained.” Tenn. Code
Ann. § 50-3-305 (2017). The TOSHA report in question includes numerous redactions
marked “Witness Identifiable Information T.C.A. 50-3-302(d).” That code section
provides that “[t]he name, job title and other information that may be used to identify a
witness who is interviewed during the course of an investigation shall be considered

                                              3
confidential and shall not be a public record pursuant to title 10, chapter 7.” In my
opinion, the redactions do not render the report untrustworthy.

       The TOSHA report identifies Pinnacle as the company where it conducted its
investigation. It identifies an accident “on 10/20/16 where an employee suffered an
amputation of three fingers,” and it notes “the interlock was tested” and “found to be
inoperable on the filler box.” This information, as well as the report’s notation of
“limited” employee training, is corroborated by the testimony of the employee, Mr.
Phillips, and Pinnacle’s report of its investigation. The TOSHA report notes that
representatives of both the employer and Pinnacle “reported an amputation,” and that the
employer’s report stated the “amputation . . . occurred on 10/20/16 at [Pinnacle].” The
TOSHA report describes the event in details consistent with the testimony at the
expedited hearing and Pinnacle’s investigative report. Indeed, it describes Pinnacle’s
“Maintenance Technician” as having “tested the limit switch by raising the top and the
machine cycled while the top was raised.” Accordingly, in my opinion, neither the
sources of the information in the TOSHA report nor the method or circumstances of
preparation are indicative of a lack of trustworthiness sufficient to exclude report’s
admission into evidence.

        Finally, the employer asserts that admitting the TOSHA report into evidence “is
more prejudicial than probative as the information Employee sought to introduce was
available via other means at the Expedited Hearing.” I find no merit in this assertion, and
the employer cites no authority or argument to support the assertion. While Rule 403 of
the Tennessee Rules of Evidence allows relevant evidence to be excluded “if its probative
value is substantially outweighed by the danger of unfair prejudice,” the employer fails to
articulate the manner in which the probative value of the evidence is alleged to be
prejudicial or in which its probative value is outweighed by the danger of unfair
prejudice. Moreover, the trial court limited its consideration of the report to “what the
Court considers to be relevant.” Accordingly, I do not believe the trial court erred by
considering the relevant parts of the TOSHA report.

                         Additional Background and Testimony

      The record includes relevant evidence that, in my opinion, was not adequately
addressed or was not addressed at all in the majority opinion. In determining whether the
employee presented sufficient evidence to overcome the applicable presumption, I am
compelled to address this evidence.

       As an initial matter, a more detailed description of the operation of the “splitter”
machine is appropriate. Several sixteen pound blocks of frozen fish are fed into a “filler
box,” and a hydraulic “pusher” forces one block of fish at a time into the cutting heads,
where the blocks are cut into smaller pieces. The machine frequently jammed as pieces
of fish broke off the frozen blocks or the blocks became misaligned, which required the

                                            4
operator to open the gate or door on the filler box. The evidence differed in terms of the
frequency of the jams, with the employee testifying it occurred every day, several times
on his shift. The TOSHA report indicated the employee reported having to clean out the
filler box “on average of 3-4 times every [half] hour.” Additionally, the report noted that
employees working in this department rotate between machines, operating the different
pieces of equipment in 30 minute intervals. It noted that other operators reported having
to clean out broken pieces or realign the blocks “5-6 [times] during each 30 minutes” of
operation. In addition, it noted that, due to the frequency of having to clean out the filler
box, the task was considered “routine, repetitive and integral,” such that “lockout would
not apply.”

        The employee explained the process of clearing the machine as requiring “two
hands to pick . . . one block of fish up, because it’s . . . heavy.” He testified that when the
splitter jammed just before his injury, there were eight blocks of fish in the filler box.
After removing the frozen blocks, he cleaned out pieces that had broken off the frozen
blocks to allow the machine to continue its cycle. As he began putting the blocks of fish
back in the filler box he “noticed one block was still sitting crooked,” which he said
would cause the block to break into pieces requiring him to “have to get back inside of it
and unjam it again.” He took the block out, then cleaned “the side wall” because he
“noticed the wall was gunked up,” and then he put the block back in the filler box. In
doing so, he noticed it was still “a little crooked,” and said “that’s fine . . . you can throw
a block on it and it will make it go down the rest of the way.” He testified he “threw
another one back on top of it – another block or two . . . and it – they were all still sitting
crooked.” He stated he pulled two of the blocks back out of the machine “[a]nd about the
time I stuck my hand back down there, the machine had cut on and it pulled my hand
inside the machine.” The employee’s hand was not drawn into the cutter head; rather, the
hydraulic pusher caught his right hand between a frozen block of fish and the frame of
the filler box, amputating three of his fingers and causing severe injury to his right little
finger.

        Turning to the employee’s drug use, his testimony regarding how often he smoked
marijuana was somewhat unclear and inconsistent. The majority notes that although he
testified in his deposition that he did not smoke marijuana on the day of the accident, “he
testified at the expedited hearing that he had smoked a joint the morning of his injury.”
The majority also notes that he “was unable to testify with any certainty regarding how
much he smoked.” However, there is no evidence or suggestion that, on the day of the
accident, the employee smoked more than “one joint” at about 7:15 in the morning. He
testified he had to be at the farm where he worked a second job at 8:00 o’clock on the
morning of the accident, that he usually got up at about 7:00 o’clock, and that he had time
to eat breakfast “and then I’d smoke, and then on off to work an hour later.” When asked
whether he was feeling the effects of having smoked marijuana when he started his shift
at Pinnacle at 4:00 o’clock that afternoon, he stated “not after working at the farm and
coming home and taking a shower and taking a nap, taking a short nap, no, sir.” He

                                              5
testified he did not feel like it affected his job performance in any way that evening, and
that he was not impaired in any way when the accident occurred.

       The majority also fails to include significant testimony of Phillip Miller, the lead
maintenance technician for Pinnacle. In addition to the testimony identified in the
majority opinion, Mr. Miller testified,

       Q:    After his injury, were there any modifications made to the machine
       on which he was injured?

       A:     Yes, sir, it was.

       Q:     What modifications were made?

       A:     Prior – just the same night in which he was injured, they had us bolt
       down the hood of the – both splitters, and actually all splitters in the facility
       so that you couldn’t, by hand, just lift the hood of the splitter without
       removing the bolt due to the positioning of the interlock switch where it
       was – where it was mounted was improper location. But that’s how it was
       designed.

Mr. Miller testified the interlock switch “kills the circuit,” which shuts the machine
down. He testified the “door” on the machine can be raised to gain entry to where the
blocks of fish are located and when the door is raised to a certain point the interlock kills
the circuit. When asked whether he was saying it was a poor design, he testified,
“[c]orrect.” When asked “what would it allow employees to do,” he responded, “[t]hat
switch, from the original design point, would allow employees to access the entry in
which product was and the machine still run.” He was asked whether that was something
employees did and said, “[y]es. That was a common thing.” He agreed that was
something employees did on a regular basis and that the manner in which he thought the
employee raised the door with one hand while reaching in with the other hand “was
routinely done by other employees.”

       The majority includes Mr. Miller’s cross-examination testimony concerning how
he thought the accident occurred; however, it excludes the question and Mr. Miller’s
response concerning whether the interlock switch allowed the machine to cycle on when
the hood was only partially raised.

       Q:     Tell me how, based upon your investigation, your review of these
       working parts of this machinery, how this machine – how this accident had
       to have occurred?



                                              6
      A:    Okay. Well, when I first approached the machine to inspect, the first
      thing was we checked the E-Stop. Killed – hit the E-Stop and killed the
      machine and pulled the E-Stop. Started it back up. And the next thing we
      was [sic] checking was the interlock switch on the hood. We found that
      you could actually – due to the distance, which were [sic] the hood and the
      main contact with the secondary device on – to kill the complete interlock,
      you could actually hold the hood in between point and reach in. And by
      holding it in between, the machine still would cycle.

      Q:    Okay. And it’s my understanding that machine is probably not
      supposed to do that, is that correct?

      A:     Correct.

This testimony is consistent with the findings in the TOSHA report. “The filler box top
was equipped with a limit switch that if the top is opened even slightly; it is supposed to
keep the machine from operating. When the [Compliance Safety and Health Officer] had
the limit switch tested the day of the inspection [October 24, 2016]; it was found to be
inoperable.” Furthermore, the report noted that during the inspection “[t]he Maintenance
Technician tested the limit switch by raising the top and the machine cycled while the top
was raised.”

      Mr. Miller further testified that, because the second shift was inadequately staffed
with Pinnacle employees, there were a number of temporary employees working the
machines, and that Pinnacle did not provide adequate training to those employees.

      Q:     Okay. Were there any real procedures shown to temp workers how
      to correct such an issue [as the machine becoming jammed] at the time of
      Mr. Kizer’s injury?

      A:     No, sir.

      Q:   Were they essentially just kind of put in front of a machine and
      maybe shown how to operate it and handle whatever comes?

      A:     Yes, sir.

      Q:     In your opinion, you don’t think Mr. Kizer violated any kind of
      safety protocols or policies at the time of his injury?

       A:     No, sir. As I indicated, I think he was basically doing what he’s
       seen, whoever may have given him a brief period of training or whatever.
       He’s seen what he’s seen done before on a routine basis.

                                            7
        The employee’s testimony concerning the training he received to operate the
splitter machine likewise indicated the training was very limited.

      Q:    Okay. Tell us, if you will, about any training that you received when
      you – not in pizza but when you moved into the fish station at Pinnacle,
      what kind of training did you receive to operate those machines?

      A:      The only training I received was they just showed me basically how
      to run the machine, how to load it, how to stop it.

      ....

      Q:     In rearranging these blocks of fish product, were you taught to do it
      that way, so to speak?

      A:     Yes, sir. That’s the way they taught me the first day.

      Q:     And is this something you saw other employees do-

      A:     Yes, sir.

      Q:     -to address that problem?

      A:     Yes, sir.

      Q:      Okay. And this is something – had you done this before to address
      that issue?

      A:     Yes, sir. A million times.

      Q:    Okay. And when you had done that before, had you been
      reprimanded or corrected in any way?

      A:     No, sir.

                                   Expert Testimony

       I also believe additional deposition testimony given by Dr. Ferslew, the
pharmacologist and forensic toxicologist, and additional deposition testimony and an
affidavit from Dr. Figueroa, the treating emergency room physician, were material and
relevant to the issues.



                                            8
       In addition to testifying that the presence of THC in the employee’s urine only
confirmed his prior use of marijuana and did not prove he was or was not under the
influence at the time of the injury, Dr. Ferslew was asked about his research concerning
the effects marijuana might have on different individuals and the length of time or
duration of its effects. He testified about the pharmacodynamic response in relation to
the concentration of THC, stating a response “can occur with standard dosage up to four
– two to four hours, depending on dose – and that’s a dose dependent measure, can be
impaired for up to two to four hours after smoking.” He added,

      [n]ow, with higher concentrations that are available today, with the advent
      of the legalization and other issues in this country, we have even higher
      concentrations of THC containing marijuana. That period probably could
      be extended. But most toxicologists, at least the ones I work with in my
      discipline, will agree that impairment occurs for a period of two to four,
      maybe up to six hours, after use.

       When Dr. Ferslew was deposed, the employee had already been deposed. Based
upon the employee’s deposition testimony stating he last smoked marijuana the day
before his injury, Dr. Ferslew was asked to assume that the employee had not smoked
marijuana on the day of his accident, but had smoked marijuana the day before, and
whether he would expect the employee would “still have any lasting effects on him the
day after he did it.” Dr. Ferslew replied, “[t]he period of time is too long. No, he would
not be under the influence of THC at the time of the incident.” Based upon Dr. Ferslew’s
testimony as to the period of time impairment can continue following marijuana use, it is
reasonable to conclude the period of impairment following the employee’s smoking
marijuana on the morning of the accident would not have extended to the time the
employee began his shift at 4:00 o’clock that afternoon, or to 9:00 o’clock that evening
when the accident occurred.

       The majority gives little mention to the testimony of Dr. Figueroa, the emergency
room doctor who treated the employee immediately following the accident. The majority
notes that he “stated he did not observe any outward signs of intoxication,” and that he
“admitted he could not state whether Employee was impaired ‘in another way.’” In my
opinion, Dr. Figueroa’s deposition testimony and his affidavit are significant. No fewer
than four times he stated the employee was not impaired. His affidavit stated “[a]t no
time during my evaluation and examination of Mr. Kizer did I find him to be intoxicated
or cognitively impaired in any way.” He testified similarly in his deposition.

      Q:     Did he seem to you to be impaired in any way whatsoever?

      A:     Not to me.

      ....

                                            9
       Q:     Okay. And again, when you saw him within 30 minutes of that
       injury or accident, he in no way appeared to be impaired to you?

       A:     No, he did not.

       Q:    And you feel comfortable that you can recognize when a patient is
       impaired, correct?

       A:     That is correct.

       ....

       Q:    Okay. And so even through reading these records and through your
       memory of treating Mr. Kizer, you don’t remember any indication of being
       – him being impaired within 30 minutes of his injury; is that correct?

       A:     I don’t think he was impaired.

                                 Employee’s Burden of Proof

       Having a positive confirmation of the urine drug screen, Tennessee Code
Annotated section 50-6-110(c)(1) (2017) required the employee to present “clear and
convincing evidence that the drug . . . was not the proximate cause of the injury” in order
to rebut the statutory presumption to the contrary. “Clear and convincing evidence” has
been defined as “evidence in which there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Claiborne v. ABC Grp. Fuel
Sys., No. M2008-02292-WC-R3-WC, 2009 Tenn. LEXIS 734, at *13 (Tenn. Workers’
Comp. Panel Nov. 20, 2009). Stated another way,

       [t]he clear and convincing evidence standard requires that the truth of the
       proposition sought to be established by the evidence be highly probable.
       Clear and convincing evidence leaves no serious or substantial doubt about
       the correctness of the conclusions to be drawn from the evidence. Thus,
       clear and convincing evidence produces in the fact-finder’s mind a firm
       belief or conviction regarding the truth of the facts sought to be established.

Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 555 (Tenn. 2008) (superseded by
statute on other grounds) (citations omitted).

      The analysis of the evidence here begins with the presumption that the employee’s
marijuana use was the proximate cause of his injury. The “proximate cause” of an injury
has been defined in various ways, including “the act or omission which immediately
causes or fails to prevent injury which would not have been inflicted in the absence of

                                             10
such an act or omission occurring or concurring with another.” Solomon v. Hall, 767
S.W.2d 158, 161 (Tenn. Ct. App. 1988). Stated another way, “[a] proximate cause of an
injury is a cause that produced the result in continuous sequence and without which it
would not have occurred.” Id. Moreover, “[t]here is no requirement that a cause, to be
regarded as the proximate cause of an injury, be the sole cause, the last act, or the one
nearest to the injury, provided it is a substantial factor in producing the end result.”
McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991) (reversed on other grounds).
Thus, the analysis begins with a presumption that the employee’s marijuana use was a
substantial factor in producing his injury.

        It is undisputed that the employee regularly smoked marijuana, and he was unable
to describe with accuracy how often he smoked. However, there is no proof that he
smoked marijuana less than thirteen hours before his injury, and he denied doing so. Dr.
Ferslew testified the effects of marijuana generally wear off within 2 to 4 hours, “maybe
up to six hours, after use.” The employee testified that he was not feeling any effects of
marijuana usage when he started his shift at 4:00 o’clock in the afternoon on the day of
his injury and that he did not think it affected his job performance that evening. He
testified he did not feel like he was impaired in any way when the injury occurred and
pointed out that he had performed his job for five hours before the injury occurred.

       The trial court noted the employee’s testimony that he operated the machine on the
day of his injury in the same way he operated it “a million times.” The employee said he
was “taught” to operate the machine the way he did. The trial court emphasized that “Mr.
Miller corroborated that employees on Mr. Kizer’s shift ‘routinely’ performed the same
action as Mr. Kizer.” The trial court found “highly probative” Mr. Miller’s testimony
that he “did not believe Mr. Kizer violated any safety protocols and noted that virtually
all second shift employees were ‘temps,’ lacking proper training in the splitter machine’s
operation.”

       Although there was evidence that had the employee engaged the E-Stop, the
machine would not have cycled on, the trial court nonetheless found that the machine’s
safety devices did not function properly. The TOSHA report corroborated the finding in
Pinnacle’s incident investigation report that the interlock adjustment “allowed the guard
to travel some distance prior to it activating and shutting off equipment thus allowing [the
employee] access to the product area.” As noted in the TOSHA report, “[t]he filler box
top was equipped with a limit switch that if the top is opened even slightly; it is supposed
to keep the machine from operating.” The trial court determined that, “even without the
TOSHA report, the Court still concludes the machine’s safety devices failed to protect
Mr. Kizer based upon Mr. Miller’s testimony.” The trial court found that the machine
should not have cycled when it did, “irrespective of Mr. Kizer’s earlier marijuana usage.”
The trial court’s factual findings are presumed to be correct, and I conclude from my
review of the evidence that the preponderance of the evidence supports the court’s factual
findings.

                                            11
        But that does not end the inquiry. While it is presumed that the trial court’s
findings of fact are correct, unless the evidence preponderates otherwise, whether the
facts establish clear and convincing evidence to overcome the statutory presumption that
the proximate cause of the employee’s injury was his marijuana use is a question of law
that is reviewed de novo with no presumption of correctness. See Mansell v. Bridgestone
Firestone N. Am. Tire, 417 S.W.3d 393, 410 (Tenn. 2013). In so doing, the focus is on
the evidence offered to rebut the presumption, which must address the cause of the injury.

       As heretofore stated, in my opinion, the combination of the employee’s testimony,
the testimony of Pinnacle’s lead technician considered with Pinnacle’s investigative
report and the TOSHA report, and the testimony of Dr. Ferslew and Dr. Figueroa,
overcomes the presumption that the employee’s marijuana use proximately caused the
injury. In my view, and considering the factual findings made by the trial court, there is
no serious or substantial doubt as to the correctness of the conclusion to be drawn from
the evidence. It is not necessary to conclude whether the proximate cause of the
employee’s injury was the failure of the interlock safety switch to operate properly,
allowing the machine to cycle on when the door was partially opened and the employee’s
hand was inside, or the failure of Pinnacle and/or the employer to train the employee in
the appropriate manner in which to safely operate the machine, or some combination of
the two. However, to affirm the trial court’s determination to award the employee
benefits at this stage of the litigation, it is necessary to conclude that the employee
rebutted by clear and convincing evidence the presumption that his marijuana use was the
proximate cause of his injury. In my opinion, he did so. I would affirm the trial court’s
decision.




                                           12
                         TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                           WORKERS’ COMPENSATION APPEALS BOARD

Jared Kizer                                                  )   Docket No. 2017-07-0073
                                                             )
v.                                                           )    State File No. 81955-2016
                                                             )
Express Services, Inc., et al.                               )
                                                             )
                                                             )
Appeal from the Court of Workers’                            )
Compensation Claims                                          )
Allen Phillips, Judge                                        )

                                       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 20th day of April, 2018.
 Name                      Certified   First   Class   Via   Fax       Via     Sent to:
                           Mail        Mail            Fax   Number    Email

 Spencer R. Barnes                                                       X     spence@morrisonandbarnes.com
 Gregory H. Fuller                                                       X     ghfuller@mijs.com
 Allen Phillips, Judge                                                   X     Via Electronic Mail
 Kenneth M. Switzer,                                                     X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                     X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
