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                                                                                   :Septoi.be.18,.10.1 '7
            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS                             '.fN COllR'I' O F
                            AT JACKSON                                                WOlUl.'.E.RS'
                                                                                   COl.il"ENSATION
                                                                                        CI..Anffi
NICOLE D. BOWLIN,                             )       Docket No. 2017-07-0224
          Employee,                           )                                      'I'imt 8:15 A .M .
v.                                            )
SERVALL PEST CONTROL,                         )       State File No. 76010-2016
         Employer,                            )
and                                           )
ACCIDENT FUND INS. CO.,                       )       Judge Allen Phillips
         Insurance Carrier.                   )


              EXPEDITED HEARING ORDER GRANTING MEDICAL AND
                   TEMPORARY DISABILITY BENEFITS


        This case came before the undersigned Workers' Compensation Judge on August
31, 2017, on Nicole Bowlin's Request for Expedited Hearing. Ms. Bowlin requested
medical and temporary disability benefits for injuries from an automobile accident;
Servall denied benefits because of Ms. Bowlin's alleged willful misconduct, namely
illegal drug use. The case turns on the merits of Servall's defense in the context of its
alleged participation in the Tennessee Drug Free Workplace Program (DFWP). For the
following reasons, the Court rejects Servall's defense and holds Ms. Bowlin is entitled to
the requested benefits.

                                    History of Claim

       Ms. Bowlin worked for Servall as a pest control technician, which required travel
to customers' homes. On September 29, 2016, she had an accident while driving a Servall
truck. She requested workers' compensation benefits for injuries from that accident.

        Ms. Bowlin explained she began September 29 by driving her two children to
school. She reported to Servall at 7:15 a.m. and prepared for the day's work by mixing
chemicals and loading them on the truck. While she was doing so, a co-worker, Jane
Armstrong, asked Ms. Bowlin to drive her to a local auto dealership to retrieve Ms.

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Armstrong's truck that had undergone repairs. The two left Servall in Ms. Bowlin's truck,
with Ms. Bowlin driving. According to Ms. Armstrong, the two were together for "about
eight minutes" when their supervisor, Tracy Hagye, called Ms. Armstrong and informed
them to return because Ms. Hagye had arranged for Ms. Armstrong to use another
vehicle.

        Upon return Ms. Bowlin left to begin service calls. She stopped to wash the truck
and then to get something to drink. She reentered the roadway and approached an
intersection. She did not recall what happened next but may have "turned [her] head for a
second." Regardless, her truck struck the rear of another vehicle stopped at the
intersection.

       At a local hospital, the police officer who investigated the accident obtained Ms.
Bowlin's consent for a blood test that showed the presence of marijuana. The parties
agreed to admission of these test results, but neither party elaborated on them.
Additionally, the parties stipulated that the investigating officer found Ms. Bowlin at fault
for the accident due to her "failure to keep in [her] proper lane." However, Ms. Bowlin
recalled he cited her for lack of "due care," and added he did not cite her for driving
under the influence. Further, the officer found no drugs in the vehicle and noted she
"appeared normal."

       Due to the severity of Ms. Bowlin's mJunes, a physician at the local hospital
recommended she be airlifted to Regional One Medical Center in Memphis. Providers
there diagnosed her with multiple fractures of her cervical spine and recommended
continued care with Dr. Francis Camillo, an orthopedic surgeon. Dr. Camillo noted Ms.
Bowlin might require a cervical fusion.

       Servall denied Ms. Bowlin's claim after a post-accident drug test revealed the
presence of marijuana. Ms. Bowlin admitted smoking marijuana "a couple of days"
before the accident, but she denied either smoking it or being under the influence of it at
the time of the accident.

       Ms. Armstrong testified she "couldn't tell" Ms. Bowlin was under the influence
when riding with her. She admitted not knowing when Ms. Bowlin arrived at Servall that
day or what she did before she asked for a ride.

       Karen Cobb, Servall's office manager, testified Ms. Bowlin not only falsified a
previous post-accident drug screen by submitting a false sample but also tested positive
on a repeat screen. Nevertheless, Servall continued Ms. Bowlin's employment under the
company's "second chance" policy. Ms. Cobb did not know whether Ms. Bowlin used
drugs on the job or worked under the influence of drugs before the date of the accident.
Also, she did not observe Ms. Bo~lin on the morning of September 29.


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       In an effort to prove DFWP certification, Ms. Cobb identified Servall's DFWP
applications filed every year since 2004 with the exception of the year of the date of this
accident. Servall offered an application dated October 24, 2016, and a form dated August
20, 2015, with handwriting stating: "They never received app@ state."

       Servall argued it was part of the DFWP, and therefore the presence of marijuana in
Ms. Bowlin's blood was the presumed proximate cause of the accident. However, Servall
admitted the Bureau did not have its DFWP application for the period that included the
date of injury. Nevertheless, it argued that its many years of participation in the DFWP
indicated it complied with the "spirit" of the program and should receive the benefit of
the presumption. In the alternative, Servall argued Ms. Bowlin's drug usage was the
proximate cause of the accident.

       Ms. Bowlin countered the DFWP presumption did not apply in the absence of an
application encompassing the date of injury. Thus, she argued Servall must prove drug
usage caused the accident and it failed to do so. Alternatively, Ms. Bowlin argued
Servall's defense must fail because it knew Ms. Bowlin used marijuana in the past and
"acquiesced" to her usage by continuing her employment.

       Ms. Bowlin requested payment of all medical bills incurred for treatment of her
injury to date and temporary disability benefits from the date of injury through April 23,
2017, when she returned to work at another employer. Her attorney requested a fee under
Tennessee Code Annotated section 50-6-226(d)(l)(b) asserting Servall wrongfully denied
Ms. Bowlin's claim.

                       Findings of Fact and Conclusions of Law

                                    Standard applied

       Ms. Bowlin must come forward with sufficient evidence from which the Court
may determine she is likely to prevail at a hearing on the merits regarding her entitlement
to the requested benefits. Servall must do the same regarding its affirmative defense.
Tenn. Code Ann.§ 50-6-239(d)(l) (2016).

                                         Analysis

      Servall contended her injury was not compensable because it resulted from illegal
drug use. Tennessee Code Annotated section 50-6-110(a)(3) provides that "no
compensation shall be allowed for an injury ... due to the employee's ... illegal drug
use." When an employer asserts this defense, it bears the burden of establishing that the
employee's drug use was the proximate cause of the accident. Tenn. Code Ann. § 50-6-


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11 O(b ). However, if the employer has implemented a drug free workplace program, then
the proximate cause of the injury is presumed to be the drug use, and the employee must
rebut that presumption by clear and convincing evidence. Tenn. Code Ann. § 50-6-
llO(c).

       Servall contended it is entitled to the DFWP presumption. The Court disagrees.
Instead, the Court finds Servall was not a member of the DFWP on the date of the
accident and is not entitled to the presumption.

       The Court considered the absence of a "Memorandum" from the Bureau
confirming receipt and acceptance of Servall's DFWP application for the period in
question. The evidence included an application from every year beginning in 2004 and
ending with an application dated October 24, 2016. Conspicuously absent is a
memorandum for the period encompassing September 29, 2016, the date of the accident.
The absence of that memorandum is fatal to Servall's reliance upon the DFWP
presumption. See Tenn. Comp. R. & Regs. 0800-02-12-.lS(l)(an employer shall file with
the Bureau a form promulgated for seeking benefits of the DFWP and upon receipt of the
form, the employer shall be rebuttably presumed entitled to the benefits of the DFWP).
Thus, the Court holds Servall retained the burden of proving Ms. Bowlin's marijuana use
was the proximate cause of the accident.

        The Court finds Servall did not satisfy its burden to prove Ms. Bowlin's marijuana
usage was the proximate cause of the accident. Specifically, Ms. Bowlin admitted
smoking marijuana two days earlier but denied being under the influence on the morning
of the accident. Further, no one who observed Ms. Bowlin on the date of the accident
perceived she was under the influence of drugs. Ms. Armstrong, who rode in a vehicle
with her before the accident, replied, "I couldn't tell" when asked if Ms. Bowlin appeared
impaired. The investigating police officer noted Ms. Bowlin "appeared normal" and did
not cite her for driving under the influence. Moreover, Servall introduced no expert proof
of the possible effect the marijuana would have had on Ms. Bowlin's actions. See
Campbell v. PML, Inc., No. W2008-01539-WC-R3-WC, 2009 Tenn. LEXIS 68, at *11
(Tenn. Workers' Comp. Panel Jan. 12, 2009)(employer offered no medical evidence as to
the effect of marijuana on the employee at time of injury).

       The Court holds Servall did not establish that it would prevail at a hearing on the
merits that Ms. Bowlin's drug usage was the proximate cause of the accident and its
affirmative defense pursuant to Tennessee Code Annotated section 50-6-110(a)(3) must
fail.

                                    Medical Benefits




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       At this interlocutory stage, the Court holds Ms. Bowlin would likely prevail at a
hearing on the merits in proving she suffered a compensable injury. The medical records
contain a diagnosis of cervical fractures, the specific treatments rendered for those
fractures, and recommendations for possible further treatment. Thus, Servall shall pay
Ms. Bowlin's outstanding medical bills.

        Further, Ms. Bowlin is entitled to ongoing medical benefits. Servall argued the
Court, if it ordered medical benefits, should order that it provide a panel of physicians.
However, Servall denied the claim, and Ms. Bowlin was forced to seek treatment on her
own. Servall never complied with the requirement that an "employer shall designate a
group of three (3) or more independent reputable physicians . . . from which the
employee shall select one (1) to be the treating physician." Tenn. Code Ann. § 50-6-
204(a)(3)(A)(i). It would be unfair to require Ms. Bowlin to change providers at this
stage, and the Court finds it appropriate to designate Dr. Camillo as the authorized
treating physician.

                                   Temporary Total Benefits

        To establish entitlement to temporary benefits, Ms. Bowlin must show she (1)
became disabled from working due to a compensable injury, (2) a causal connection
between the injury and her inability to work, and (3) the duration of the period of
disability. Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at
*7 (Dec. 11, 2015).

       Here, Dr. Camillo's notes indicated Ms. Bowlin continued to treat with him from
October 3, 2016, through March 6, 2017. In all of those notes, the Court found no
reference to work restrictions or off-work slips. The Court believes Ms. Bowlin's
testimony that she missed work but cannot infer a causal connection to her accident and
an inability to work without medical proof Thus, the Court denies her request for
temporary disability at this time.

                                     Attorney's fees

      Ms. Bowlin's counsel requests attorney's fees pursuant to Tennessee Code
Annotated section 50-6-226(d)(l)(B), which allows them when an attorney pursues a
"wrongfully" denied claim. The Court denies the request. In Andrews v. Yates Servs.,
2017 TN Wrk. Comp. App. Bd. LEXIS 35, at *7-8 (May 23, 2017), the Appeals Board
held:

      We find no authority ... requiring that determinations regarding attorney's
      fees and expenses [under section 50-6-226(d)(l)(B)] be made at an
      interlocutory stage of the case. Given the twists and turns inherent in


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       litigation, it seems the better practice is to resolve such issues after the
       litigation has run its course and the parties and the court no longer face
       uncertainties over future developments, as opposed to adjudicating disputes
       concerning attorney's fees and expenses in piecemeal fashion as the case
       winds its way through the litigation process.

The Court finds no reason to deviate from this standard at this interlocutory stage but
reserves consideration of any further application until after final resolution of the case.

IT IS, THEREFORE, ORDERED as follows:

   1. Servall shall provide Ms. Bowlin medical treatment under Tennessee Code
      Annotated section 50-6-204(a)(3) with Dr. Camillo. Ms. Bowlin or Dr. Camillo
      shall provide the medical bills to Servall.

   2. Servan shall pay Ms. Bowlin's bills for medical treatment m the following
      amounts:
           • Tennova Healthcare Volunteer--$4,620.82
           • Campbell Clinic--$379.78
           • Regional One Health--$36,201.61
           • Air Evac Lifeteam--$48,175.16.
      Ms. Bowlin's counsel is entitled to a twenty percent attorney fee on the award of
      medical benefits under Tennessee Code Annotated section 50-6-226(a)(l).

   3. Ms. Bowlin's request for temporary total disability is denied at this time.

   4. Ms. Bowlin's counsel's request for an attorney fee under Tennessee Code
      Annotated section 50-6-226(d)(l)(B) is denied at this time.

   5. This matter is set for a Scheduling (Status) Hearing on **** 2017, at *** a.m.
      Central time. You must call 731-422-5263 or toll-free 855-543-5038 to
      participate in the Hearing.

   6. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
      The Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to the Bureau by email to WCCompl.iance.Program@tn.gov no
      later than the seventh business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance may result in a penalty
      assessment for non-compliance. For questions regarding compliance, please



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      contact the Workers'    Compensation    Compliance   Unit   via   email
      WCCompliance.Program@tn.go .

ENTERED this the 28th day of September,
                                     r


                                                           nsation Claims




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                                      APPENDIX

Exhibits:

   1.   Tennessee Electronic Traffic Crash Report
   2.   Wage Statement
   3.   Employee Handbook
   4.   Toxicology Report
   5.   Servall Records regarding prior 2015 accident
   6.   Memorandums acknowledging DFWP applications
   7.   Medical Bills
   8.   Medical Records of Dr. Camillo

Technical record:

   I. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Motion to Amend Request for Expedited Hearing to Include Witness
   5. Response to Motion to Amend Request for Expedited Hearing
   6. Employee's Pre-Hearing Brief
   7. Employer's Witness List
   8. Employer's Exhibit List
   9. Employer's Pre-Hearing Brief
   10. Order Allowing Amendment of Request for Expedited Hearing




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                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Expedited Hearing Order was sent
to the following recipients by the fo llowing methods of service on this the 28th day of
September, 2017.

 Name                                      Via Email      Service Sent To:

 Monica R. Rejaei, Esq.,                       x        mrejaei@nstlaw.com
 Attorney for Employee
 Gordon C. Aulgur, Esq.,                       x        Gordon.Aulgur@accidentfund.com
 Attorney for Employer



                                             /2~ )Ju~ ~
                                            ~hrum, Clerk of Court
                                            Court of Workers' Compensation Claims
                                            WC.CourtClerk@tn.gov




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