            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


Willie Guinn and Judy Guinn,                ) Docket No. 2017-02-0207
as representatives of the Estate of         )
Shannon Scott Guinn, Decedent               ) State File No. 97502-2016
                                            )
v.                                          )
                                            )
Barnard Roofing Company, Inc., et al.       )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Brian K. Addington, Judge                   )


                   Affirmed and Remanded – Filed October 5, 2017

In this interlocutory appeal, the employer asserts the trial court erred in denying its
motion for an order compelling the representatives of the employee’s estate to sign a
medical release allowing a second toxicology screening of the decedent’s blood sample.
Following a hearing, the trial court concluded the employer had not shown “good cause”
supporting its motion because it offered no evidence that the laboratory holding the
sample required a medical release or a court order to perform a second toxicology
screening. Finding the trial court did not abuse its discretion in denying the employer’s
motion, we affirm the trial court’s determination and remand the case for additional
proceedings.

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

Jeffery Foster, Jackson, Tennessee, for the employer-appellant, Barnard Roofing
Company, Inc.

Gregory Haden, Jackson, Tennessee, for the appellees, Willie Guinn and Judy Guinn,
as representatives of the Estate of Shannon Scott Guinn, Decedent




                                           1
                            Factual and Procedural Background

       On December 15, 2016, Shannon Guinn (“Employee”) suffered a tragic fall while
working for Barnard Roofing Co., Inc. (“Employer”). He had been assisting co-workers
on a roof when he stepped through a skylight hole and fell approximately 25-30 feet onto
concrete. He was hospitalized and underwent emergency surgery to treat a traumatic
brain injury, but he was unable to recover. He passed away on December 24, 2016.

        During Employee’s hospital stay, medical personnel obtained a sample of his
blood. On December 28, 2016, four days after Employee’s death, the sample was
received by Aegis Sciences Corporation (“Aegis”), which performed a toxicology
screening.1 In a January 3, 2017 report, Aegis indicated the result was positive for
“Carboxy-THC” at an amount of “24 ng/ml.” Employer then sought to have the sample
re-tested due to its belief that Employee must have used marijuana prior to the accident
because “Carboxy-THC” is an inactive ingredient in marijuana. Representatives of
Employee’s estate declined to sign a release presented by Employer for a second
toxicology screening for a number of reasons, including that the initial toxicology report
noted the specimen’s “security seal [was] missing” and the level of “Carboxy-THC”
noted on the result was below threshold minimums supporting a “confirmation test” as
set forth in Tenn. Comp. R. & Regs. 0800-20-12-.03(17) (2012).

       Thereafter, Employer filed a motion asking the trial court for an order compelling
the representatives of Employee’s estate to sign a medical release allowing a subsequent
toxicology screening of Employee’s blood sample. Following an expedited hearing, the
trial court denied the motion, concluding Employer had not shown “good cause”
supporting its motion because it offered no evidence that the laboratory holding the
sample required a release or court order to conduct additional testing. 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) (2016) (“There shall be a presumption that the
findings and conclusions of the workers’ compensation judge are correct, unless the
preponderance of the evidence is otherwise.”). However, we review questions of law de
novo with no presumption of correctness. See Am. Mining Ins. Co. v. Campbell, No.
M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at *18 (Tenn. Workers’ Comp. Panel
Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de novo upon the record
with no presumption of correctness.”). Moreover, the interpretation and application of

1
  The record is unclear as to who ordered this first toxicology screening, although the Aegis report
indicates it was a “post-accident” test.

                                                 2
statutes and regulations concerns issues of law, which we review de novo with no
presumption of correctness afforded to the trial court’s findings. See Seiber v. Reeves
Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No. 2014-02-
0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp. App. Bd.
May 18, 2015).

       A trial court’s decision to grant or deny a discovery motion is reviewed under an
abuse of discretion standard. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604
(Tenn. Ct. App. 2004). This standard “contemplates that before reversal the record must
show that a judge ‘applied an incorrect legal standard, or reached a decision which is
against logic or reasoning that caused an injustice to the party complaining.’” Hubbard v.
Sherman-Dixie Concrete, Indus., No. E2010-02219-WC-R3-WC, 2011 Tenn. LEXIS
965, at *11 (Tenn. Workers' Comp. Panel Oct. 18, 2011) (quoting State v. Farrell, 277
S.W.3d 372, 378 (Tenn. 2009)).

                                                Analysis

        The issue as stated by Employer is “whether the [trial court] erred in denying
Defendants’ Motion to Compel a drug screen on the blood sample of the Employee.” In
its brief, Employer correctly notes that it has the burden of proving its defense based on
the alleged intoxication of Employee. Tenn. Code Ann. § 50-6-110(a)(3) (2016).2

        In considering the issue raised by Employer, we must turn to the statutes and rules
governing drug testing and the Tennessee Drug-Free Workplace Program. First, the
record in this case is unclear as to whether the trial court considered Employer to be a
certified drug-free workplace. In the initial dispute certification notice, Employer
asserted it was not a certified drug-free workplace. In a subsequent brief, Employer
argued that the rules governing drug testing in the Tennessee Drug-Free Workplace
Program were inapplicable in this case, since it has “made no assertion [it] was qualified
for the drug-free workplace program.” Thereafter, Employee filed copies of a
“Tennessee Drug-Free Workplace Application,” purportedly submitted by Employer to
the state, along with a Memorandum from the Tennessee Drug-Free Workplace Program
accepting Employer’s application for participation in the program. Thus, it remains


2
  Employer also cites certain statutes peripheral to the issue at hand. First, an injured worker must submit
to a physical examination at the request of the employer at “all reasonable times.” Tenn. Code Ann. § 50-
6-204(d)(1). Second, an employer may, under certain circumstances, demand an autopsy of a worker
when the cause of death is “obscure or [] disputed.” Tenn. Code Ann. § 50-6-204(e). Third, an employer
has reasonable access to the medical records of an employee who seeks workers’ compensation benefits.
Tenn. Code Ann. § 50-6-204(a)(2)(A). However, Employer in this case has not demanded a physical
examination of the deceased worker, has not sought an autopsy, and is not seeking access to medical
records. Thus, none of the statutes cited by Employer addresses its purported right to demand estate
representatives to sign a release for medical testing of a blood sample of the deceased employee.

                                                     3
unclear whether Employer is a “covered employer” as that term is defined in the statutes
governing the Drug-Free Workplace Program.

       Consequently, before considering the drug-testing procedures as set forth in the
Drug-Free Workplace Program, we must look to other statutes or rules that could support
Employer’s motion. In general, “[d]iscovery rules are accorded broad and liberal
treatment [as] mutual knowledge of all the relevant facts gathered by both parties is
essential to proper litigation.” Johnson, 146 S.W.3d at 605 (citing Hickman v. Taylor,
329 U.S. 495, 507 (1947)). A request for discovery need only show “that the information
sought would lead to admissible evidence.” Id. “The first, and perhaps most important,
policy is that discovery should enable the parties and the courts to seek the truth so that
disputes will be decided by facts rather than by legal maneuvering.” White v. Vanderbilt
Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999).

       Rule 35 of the Tennessee Rules of Civil Procedure governs requests for a physical
or mental examination of a person. In general “[w]hen the mental or physical condition
(including the blood group) of a party, or of a person in custody or under the legal control
of a party, is in controversy, the court in which the action is pending may order the party
to submit to a physical examination by a suitably licensed or certified examiner.” Tenn.
R. Civ. P. 35 (emphasis added). Rule 35 contemplates at least one form of blood testing
as coming within the rule governing physical examinations. Therefore, if a trial court
determines that the physical condition of an injured worker is “in controversy,” it has the
discretion to order blood testing as part of a Rule 35 physical examination.

        Moreover, assuming for purposes of this discussion that Employer and Employee
are subject to the statutes and rules governing Tennessee’s Drug-Free Workplace
Program, we must consider statutory and regulatory language pertinent to that program.
The statute governing Tennessee’s Drug-Free Workplace Program defines “confirmation
test” as follows:

       “Confirmation test,” “confirmed test” or “confirmed drug or alcohol test”
       means a second analytical procedure used to identify the presence of a
       specific drug or alcohol or metabolite in a specimen, which test must be
       different in scientific principle from that of the initial test procedure and
       must be capable of providing requisite specificity, sensitivity and
       quantitative accuracy.”

Tenn. Code Ann. § 50-9-103(4) (2016). Section 50-9-104 provides that a “covered
employer may test an employee for any drug defined in § 50-9-103, and at any time set
out in § 50-9-106.” Tenn. Code Ann. § 50-9-104(a) (2016). Thereafter, the statute
authorizes a covered employer to conduct “post-accident testing” “after an accident that
results in an injury.” Tenn. Code Ann. § 50-9-106(a)(5) (2016). Finally, the law requires
a covered employer to “use chain-of-custody procedures established by regulations of the

                                             4
United States department of transportation or such other recognized authority approved
by rule . . . governing drug testing.” Tenn. Code Ann. § 50-9-107(c) (2016).

       The rules pertaining to Tennessee’s Drug-Free Workplace Program also contain
relevant provisions. First, “nothing in these rules shall be construed as authorizing any
employer to test any employee or applicant for alcohol or drugs in any manner
inconsistent with federal constitutional or statutory requirements.” Tenn. Comp. R. &
Regs. 0800-02-12-.02(4) (2012).

        Second, a covered employer is required to conduct post-accident drug testing.
Tenn. Comp. R. & Regs. 0800-02-12-.05(5). Moreover, “[s]pecimens shall be obtained
at the treating facility or a designated collection site under the procedures set forth in
these rules and transported to an approved testing laboratory.” Tenn. Comp. R. & Regs.
0800-02-12-.05(5)(a). The post-accident drug test must be comprised of an “initial
screen,” which is an “immunoassay,” and, if “identified as positive on the initial test,” a
“confirmation test,” which is to use “gas chromatography/mass spectrometry (GC/MS).”
Tenn. Comp. R. & Regs. 0800-02-12-.07(2) & (3). A confirmation test is called for if the
initial screening is “positive,” but the regulations are silent as to the meaning of
“positive.” A test result is considered “presumptively positive” if the detected levels of a
particular drug exceed the prohibited levels identified in Tenn. Comp. R. & Regs. 0800-
02-12-.03(17). For marijuana, the “presumptively positive” level for an initial screening
is 50 ng/ml and the “presumptively positive” level for a confirmation screening is 15
ng/ml. Id.

       In the present case, a blood specimen of the injured worker was received by Aegis
Corporation on December 28, 2016, thirteen days after the work accident. The record
contains no evidence that the testing facility required a medical release from the injured
worker or his representative prior to conducting the initial screening. The January 3,
2017 lab report does not indicate the date the blood sample was collected from the
injured worker. The “result” indicates that the test for “Carboxy-THC” was “positive” at
a level of 24 ng/ml. This result is below the threshold set by regulation to be considered
“presumptively positive” if the result was from an “initial” immunoassay. Moreover, the
lab report indicates that the “specimen security seal is missing.”

        The trial court concluded that Employer had failed to show good cause as to why
its motion to compel should be granted. We agree. Based on our review of the record,
the trial court was not presented with evidence that the January 3, 2017 laboratory report
constituted a properly conducted “initial screen” as described in Tenn. Comp. R. & Regs.
0800-02-12-07(2). Employer presented no evidence that chain-of-custody procedures
were followed in accordance with Tennessee Code Annotated section 50-6-107(c),
especially in light of the fact that the laboratory report on which it relies stated that the
specimen’s security seal was missing. Employer presented no evidence as to when the
blood sample was collected from Employee.

                                             5
       Moreover, although the laboratory identified a “positive” result for “Carboxy-
THC,” which Employer asserted was an inactive ingredient in marijuana, Employer
presented no evidence that the test result was “positive” for purposes of obtaining a
confirmation test, especially since the result was below the threshold to be considered
“presumptively positive” in accordance with Tenn. Comp. R. & Regs. 0800-02-12-
.03(17). In addition, the record contains conflicting evidence concerning whether
Employer is a certified drug-free workplace under Tennessee law and/or is a “covered
employer” for purposes of the statutes and rules governing drug testing under this
program.

       Finally, Employer presented no evidence that a medical release or court order is
needed for the type of confirmation test it is seeking. If Employer is not a certified drug-
free workplace, then it is not subject to the rules governing initial screens and
confirmation tests. If it is a certified drug-free workplace, we find nothing in the rules
that requires an injured worker or the worker’s representative to sign a medical release in
order for a confirmation test to occur. In fact, a confirmation test is required by the rules
whenever the initial test is positive. See Tenn. Comp. R. & Regs. 0800-02-12-.07(3).
Employer offered no affidavit or other evidence from a representative of the laboratory
currently in possession of the blood specimen indicating it would not conduct a
confirmation test without a medical release or court order.

       Thus, while we conclude that discovery in Tennessee is generally broad and the
rules governing discovery are to be liberally construed, a party must still present evidence
in support of a motion to compel sufficient to show “good cause” as to why a court order
is necessary. We find nothing in the record supporting a conclusion that the trial court
abused its discretion in denying Employer’s motion under these circumstances.

                                        Conclusion

       Based on the foregoing, we affirm the decision of the trial court and remand this
case for any further proceedings that may be necessary.




                                             6
                      TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                        WORKERS’ COMPENSATION APPEALS BOARD


Willie Guinn and Judy Guinn,                ) Docket No. 2017-02-0207
as representatives of the Estate of Shannon )
Scott Guinn, Decedent                       ) State File No. 97502-2016
                                                             )
v.                                                           )
                                                             )
Barnard Roofing Company, Inc., et al.                        )


                                         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 5th day of October, 2017.
 Name                        Certified   First Class   Via   Fax      Via     Email Address
                             Mail        Mail          Fax   Number   Email

 Jeffery Foster                                                         X     jfoster@morganakins.com
 Gregory Haden                                                          X     ghaden@hsdlaw.com
 Brian K. Addington, 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




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
