                                                                                              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. 1 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.




1
 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. 2

       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 "[u]rine 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)(l) (2019).
The Court holds he did not.

                                              Analysis

        No one disputed that Cherokee Truck was part of Tennessee's DFWP, and Mr.
Isom's drug tests were positive for marijuana. Tennessee Code Annotated section 50-6-
110(c)(l) 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,
20 18). 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 DFWP rules that
govern the process. Likewise, Dr. Sharma's equivocal opinion that the drug tests did not

2
 The Court sustained Cherokee Truck's hearsay objection to statements contained in Mr. Isom's affidavit
allegedly made by Cherokee Truck employees.


                                                   2
confirm intoxication falls short of clear and convmcmg 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.




                                  Workers' Compensation Judge




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                                     APPENDIX

Exhibits:
       1. Form C-20 First Report
       2. Form C-23 Notice of Denial
       3. Form C-41 Wage Statement
      4. Form C-42 Panel
       5. Quest Diagnostics Laboratory Report, July 25, 2019
       6. Medical records of American Family Care
       7. Medical records of Dr. Brett Sanders
       8. Affidavit ofLekh Sharma, PhD, TC (NRCC)
      9. Affidavit of Brenden K. Is om
       10. DFWP documents
       11. Personnel documents


Technical record:
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Request for Expedited Hearing
      4. Cherokee Truck Equipment's Motion to Extend Objection to Request for a
          Decision on the Record Deadline
      5. Objection of Brenden Isom to Cherokee Truck Equipment's Motion to Extend
          Objection to Request for a Decision on the Record Deadline
      6. Order Granting Motion to Extend Objection to Request for a Decision on the
          Record Deadline
      7. Cherokee Truck Equipment's Notice of No Objection to a Decision on the
          Record




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                            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,                               X      maw@wagnerinjury .com
Employee's Attorney
Nick Peterson,                             X      nick.peterson@petersonwhite.com
Employer's Attorney




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                                             PENNY S)C{)URT CLERKU/
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                                                 wc.courtclerk@tn.gov




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