                                                                                     FILED
                                                                                 F ebrua.ry H, 201.7

                                                                                  TN COURfOF
                                                                              WORKERS' Co:\JPENS.ffiON
                                                                                    CL . illiS
                                                                                         .

                                                                                    Time !0:43AM


            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT COOKEVILLE

Linda Green,                                      Docket No.: 2016-04-0085
            Employee,
v.                                                State File No.: 99072-2015
 Rogers Group,
            Employer,                             Judge Robert Durham
And
Liberty Mutual Insurance Co.,
             Carrier.


             EXPEDITED HEARING ORDER GRANTING BENEFITS


       This cause came before the undersigned Workers' Compensation Judge upon the
Board of Appeals' vacation and remand of an Order for Benefits originally issued on
November 3, 2016. The first issue is whether Rogers Group has provided sufficient
evidence to assert an intoxication defense to Ms. Green's claim pursuant to Tennessee
Code Annotated section 50-6-110(c)(1) (2015), and if so, whether Ms. Green is likely to
prove by clear and convincing evidence that her intoxication was not the proximate cause
of her injury on December 11, 2015. Ms. Green also seeks reimbursement for past
medical expenses, additional medical care, and temporary total disability benefits. The
Court holds Ms. Green is likely to prevail at ·a hearing on the merits with regard to the
compensability of her claim; however, she has not established the likelihood of prevailing
at such a hearing with regard to unauthorized medical expenses beyond her initial
emergent care or the extent of her temporary disability following her injury.

                                     History of Claim

        On December 11, 20 15, Ms. Green was working as a dispatcher for Rogers Group,
a rock and gravel provider, when she fell approximately eight feet from a catwalk while
at a ticket printer box. (Ex. 1.) Ms. Green asserted in her affidavit that she fell through a
gap in the platform "that should have had a protection barrier." (Ex. 4.) A co-worker,
Jackie Dale Gregory, corroborated this testimony by affidavit. (Ex. 12.) Ms. Green
suffered serious injuries and was transported by ambulance to Skyline Medical Center,

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where she stayed until December 13. 1 (Ex. 8 at 2.)

       Ms. Green and her husband, Larry Green, testified that immediately following her
discharge from Skyline on the 13th, they received a phone call from Skyline urging her to
return to the hospital as quickly as possible due to tests that revealed a serious oxygen
deficiency. Ms. Green immediately returned by ambulance to Skyline complaining of
"feeling terrible" and suffering from respiratory insufficiency. She was readmitted to the
hospital, where she stayed until December 17. According to the admission report, Ms.
Green suffered "multiple right-sided rib fractures and transverse process fractures of her
lumbar spine." She denied alcohol use or drug abuse. Ms. Green underwent aCT scan
of her chest that revealed a right hydropneumothorax that was not present on the study
taken on December 11. Dr. Benjamin Tourkow also diagnosed Ms. Green with a
pulmonary embolism in her right lung and a partial lung collapse. (Ex. 8 at 1, 2, 7, 24.)

        While Ms. Green was at Skyline on December 11, Quest Diagnostics attempted to
obtain a urine sample for drug testing but had to cancel the initial attempt because she
was in too much pain to give it. (Ex. 6 at 5.) Mr. Green testified that when Quest
arrived, Ms. Green was incoherent due to her pain and the drugs she received, but she did
not refuse the drug screen; rather the emergency room staff advised Quest to return later
when the sample could be obtained from a bedpan. Ms. Green provided a urine sample
later that evening that Quest used to perform a drug screen. !d. at 11.

        Dr. Greg Elam, Medical Review Officer for National Toxicology Specialists,
testified that the first page of the drug screen report provided by Quest only denotes the
cut-off levels for the initial test (twenty nanograms) and the MS confirmation test (five
nanograms) that were requested by Rogers Group and did not reflect the actual drug
levels found in Ms. Green's sample. He explained that the second page of the report
documented the actual level of a specific marijuana metabolite found in Ms. Green's
urine through the MS confirmation test, and it recorded the level at sixteen nanograms.

       Dr. Elam further testified that Quest originally tested Ms. Green's sample for
drugs pursuant to the standards set by the Tennessee Drug-Free Workplace Act (TDFW).
The initial test did not reach the level required for a positive drug screen under the Act,
and so Quest did not conduct a confirmation test. However, he realized that the test was
not performed in accordance with the more stringent standards requested by Rogers
Group, and therefore ordered the sample be retested. Upon retesting, the confirmation
test revealed sixteen nanograms of a specific marijuana metabolite in Ms. Green's
system. Dr. Elam testified he did not know what the "initial test" results on the retest
revealed, since Quest did not provide that data to him. !d. He further admitted that Ms.
Green "passed" the first test pursuant to TDFW standards regarding marijuana.

1
 Neither party produced the emergency room or hospital records from Ms. Green's visit to Skyline on December ll.
The information is gleaned from Ms. Green's readmission to Skyline on December 14.

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Nevertheless, Dr. Elam certified that Ms. Green tested positive for marijuana. (Ex. 6 at
10.) Based on these test results, Rogers Group denied Ms. Green's workers'
compensation claim.

       As recommended by Dr. Mezghebe at Skyline, Ms. Green sought additional
treatment with her personal care physician, Richard Rutherford, at Carthage Family
Practice (CFP), which monitored her Coumadin levels? On January 18, 2016,
Physician's Assistant Peter Alfano recorded Ms. Green was there for "follow-up/recent
evaluation of right rib fractures from a fall on 12/11115. Resulted in secondary
pneumothorax and pulmonary embolus." (Ex. 9 at 15.)

       Ms. Green continued treatment with CFP, noting improvement on February 18,
2016, and stating she was "ready to return to work as a truck dispatcher." !d. at 16. Ms.
Green underwent another urine drug screen on February 23, 2016, as a condition to
returning to work for Rogers Group. (Ex. 6 at 17.) The confirmation test for marijuana
revealed fifteen nanograms of marijuana metabolites. According to Dr. Calvin Channell,
another Medical Review Officer, Ms. Green again tested positive for marijuana. !d. Dr.
Elam also confirmed this result. !d. at 18. Rogers Group then terminated Ms. Green's
employment.

        Ms. Green continued to treat at CFP for pain in her low back and right ribs until
April 24, 2016. She testified that in the spring of 2016, she began working for another
construction company at a wage less than she made at Rogers Group, but she received a
raise in October, so that she now makes more.

       Ms. Green averred in her affidavit that, "she had witnesses that can testify to her
state of mind" on December 11; however, she did not identify them or produce any
testimony from them. (Ex. 4.) She also did not testify as to her sobriety at the time of the
accident, although she contended that the last time she "was around or did marijuana"
prior to the accident was November 25, 2015. !d. She also offered a note from Acute
Surgical Care Specialists stating she was under doctor's care from December 13 through
December 29, 2015, and a note from P.A. Alfano stating she was under his care
beginning on December 21, 2015, and was able to return to work on February 22, 2016.
(Ex. 13, 14.)

       Mr. Thomas Oczkowicz, Risk Management Director for Rogers Group, testified
by affidavit that Rogers Group was an active member of the TDFW on December 11,
2015, and attached a copy of its application and memorandum of acceptance into the
TDFW program to his affidavit. (Ex. 7.)


2
  While Ms. Green primarily saw Physician's Assistant, Peter Alfano, at CFP, Dr. Rutherford reviewed and
approved the records as noted by his electronic signature.

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                        Findings of Fact and Conclusions of Law

       As in all workers' compensation actions, Ms. Green, as the claimant, has the
burden of proof on all essential elements of her claim. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However,
since this is an expedited hearing, she only has the burden to come forward with
sufficient evidence from which the trial court can determine she is likely to prevail at a
hearing on the merits in order to meet her burden. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        Rogers Group does not contest the fact that Ms. Green suffered an injury at work
on December 11, 20 15, but instead asserts the affirmative defense that illegal drug usage
was the proximate cause of her injury, thus rendering it non-compensable pursuant to
Tennessee Code Annotated section 50-6-110(a)(3) (2016). If Rogers Group proves it is
likely to establish at trial that "it has implemented a drug-free workplace" pursuant to
statutory and regulatory guidelines, and Ms. Green has a "positive confirmation of a drug
as defined in § 50-9-103," there is a statutory presumption that the drug was the
"proximate cause of injury." Tenn. Code Ann.§ 50-6-110(c)(1) (2016). The burden then
shifts to Ms. Green to show she is likely to prevail at trial in rebutting the presumption by
"clear and convincing evidence" that the drug use was not the proximate cause of her
injury. !d.

       Rogers Group first asserts that Ms. Green refused to provide a urine sample on
December 11, and her refusal created a presumption that intoxication was the proximate
cause of her injury pursuant to Tennessee Code Annotated section 50-6-110(c)(3) (2016).
However, upon review of the record and the undisputed testimony of Mr. and Ms. Green,
the Court finds that she did not refuse a urine sample upon Quest's first request. Rather,
she was incapable of giving one at the time, and medical personnel requested Quest come
back to obtain the sample from a bedpan, which they did later that evening. Therefore,
the Court holds Rogers' Group assertion that Ms. Green refused to provide a urine
samp'le to be without merit, and the Court must consider the actual test results obtained
by Quest.

      It is undisputed that Rogers Group was a member in good standing with the
Tennessee Drug-Free Workplace program at the time of Ms. Green's injury, and that Dr.
Elam, as the Medical Review Officer, noted the post-accident drug screen was "positive"
for marijuana. However, the drug test must have been performed in compliance with the
law in order to create the presumption that intoxication was the proximate cause of Ms.
Green's injury. Tennessee Code Annotated section 50-9-104(a) (2016) states that "if a
covered employer fails to maintain a drug-free workplace program in accordance with the
standards and procedures established in this section and in applicable rules, the covered
employer shall not be eligible for ... [a] shift in the burden of proof pursuant to §50-6-

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110(c)." (Emphasis added.)

       Tennessee Code Annotated section 50-9-111(a)(4) (2016) requires the creation of
a rule regarding the "minimum cut-off detection levels for alcohol, each drug or
metabolites of the drug for the purpose of determining a positive test result." Rule 0800-
02-12.03(17) (20 16) of the Tennessee Compilation of Rules and Regulations sets out the
"prohibited levels" for various drugs necessary to create a "presumptively positive" drug
test. For marijuana, the 'cut-off level" for an initially screened specimen is fifty
nanograms, and for a confirmation specimen the "cut-off level" is fifteen nanograms. 3
Furthermore, Rule 0800-02-12.07(6) (2016) provides that "[a]ll testing for drugs and
alcohol shall be in accordance with the procedures compiled at 49 C.F .R., Part 40." 49
C.P.R., Part 40 section 40.87, subsections (b) and (c) state as follows:

         (b) On an initial drug test, you must report a result below the cutoff
         concentration as negative. If the result is at or above the cutoff
         concentration, you must conduct a confirmation test.

         (c) On a confirmation test, you must report a result below the cutoff
         concentration as negative a result at or above the cutoff concentration as
         confirmed positive.

       According to the undisputed testimony of Dr. Elam, the first initial drug test
conducted by Quest was below fifty nanograms for marijuana, and thus under the "cut-off
level" as defined by Rule 0800-02-12.03(17). Therefore, pursuant to 49 C.P.R. section
40.87(b), and by reference, Rule 0800-02-12.07(6), this result should have been reported
as a "negative" drug test and no confirmation test was required. Indeed, Dr. Elam
admitted as much when he testified that, pursuant to the Tennessee Drug-Free Workplace
standards, Ms. Green "passed" the first drug test with regard to marijuana.

       Of course, Rogers Group argues that even though a confirmation test was not
required, one was conducted anyway because the first test was not performed according
to the standards set by Rogers Group. The confirmation test, which was more specific
than the initial test, exceeded the standard set by the TDFW for a positive result on a
confirmation test; thus, the test was positive and sufficient to create the presumption of
intoxication.

      The Court knows of no reason why Rogers Group may not require a drug test with
more stringent standards than the TDFW and use the test results in any manner allowed
by law; however, the issue before the Court is whether the application of the test
comports with the requirements of the TDFW. Thus, the question is not whether Ms.

3
 This differs from Rogers Group's internal policy of setting the cut-off levels for the initial test at twenty nanograms
and the MS confirmation test at five nanograms.

                                                           5
Green had marijuana in her system, which is undisputed. The question is whether the
marijuana in her system was sufficient to establish a "positive" drug test in accordance
with the rules and procedures set out under the TDFW, and thus create the presumption
of intoxication as the proximate cause of Ms. Green's injuries. The Court finds the
answer in this case to be "no" because, under 49 C.F .R. section 40.87(b) and, by
extension, Rule 0800-02-12.07, Quest was required to report Ms. Green's initial drug test
as negative.

        Because the Court finds the post-accident drug test is insufficient to establish a
positive result in accordance with the TDFW, Rogers Group appears unlikely to establish
a presumption of intoxication as a proximate cause. Other than its attempt to rely on the
presumption, Rogers Group submitted no evidence that intoxication was the actual
proximate cause of Ms. Green's accident on December 11, 2015. Therefore, Ms. Green
is likely to prevail at trial and is entitled to workers' compensation benefits for any
injuries she sustained from the accident. See Tenn. Code Ann.§ 50-6-110(a)(3) (2016).

        While the Court holds Ms. Green is likely to establish she sustained a
compensable injury on December 11, 2015, the reasonableness and necessity of the
medical expenses she has sustained thus far remains in question. Whether an employee is
justified in seeking payment for unauthorized medical expenses from an employer
depends upon the circumstances of each case. Buchanan v. Mission Ins. Co., 713 S.W.2d
654, 656 (Tenn. 1986). In this instance, the medical records provided establish Ms.
Green suffered multiple rib and lumbar vertebrae fractures as due to her fall on December
11. While the parties did not provide medical records from Ms. Green's initial
emergency room visit, documentation from Quest Diagnostics state the first drug screen
had to be cancelled because her pain was too great to give a urine sample. Furthermore,
both Mr. and Ms. Green testified that she was suffering from intense pain, to the point
that Mr. Green testified Ms. Green was "incoherent" as a result. Therefore, the Court
finds Ms. Green's initial trip to Skyline Hospital and the treatment she received until her
initial discharge on December 13, was reasonable under the circumstances, and Rogers
Group is required to pay the reasonable and necessary costs associated with this care.

        However, with regard to Ms. Green's second trip to Skyline and her readmission
to the hospital on December 13, the Court finds she provided insufficient evidence to
establish her entitlement to those expenses at this time. While she and her husband
testified the hospital called her and insisted she return as soon as possible because of her
oxygen levels, no doctor has provided an explicit opinion to this effect, nor has any
physician addressed the reasonableness and necessity of a four-day stay in the hospital as
a result of her December 11 work-related injury. The same is true for the subsequent care
provided by Carthage Family Practice. Therefore, the Court holds Ms. Green has simply
not provided sufficient evidence to establish her likelihood to succeed at a hearing on the
merits regarding payment for these expenses at this time.


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        In order to receive temporary total disability benefits, Ms. Green must prove (1)
total disability from working as the result of a compensable injury; (2) a causal
connection between the injury and the inability to work; and (3) the duration of the period
of disability. Shepherd v. Haren Canst. Co., Inc., eta/., 2016 TN Wrk. Comp. App. Bd.
LEXIS 15, at *13 (Mar. 30, 2016). Ms. Green failed to provide sufficient evidence to
establish the duration of any temporary total disability she sustained because of her
injury, given that no doctor has provided an opinion in this regard. Again, while she
provided notes from providers documenting the time she was under their respective care,
there is nothing from any doctor to causally link her care to her work injury or to indicate
that she could not work during those timeframes. Therefore, the Court cannot award her
temporary disability benefits at this time.

       Nevertheless, Ms. Green is entitled to a panel of physicians from which she may
choose an authorized treating physician for any additional care she may require for her
December 11 work-related injury. See Tenn. Code Ann. § 50-6-204(a)(1)(A) (2016).
The selected physician may then render and opinon on the reasonableness and necessity
of Ms. Green's past medical care as well as the extent of her temporary disability
following her injury.

       IT IS, THEREFORE, ORDERED:

   1. Rogers Group shall pay the reasonable and necessary medical expenses for Ms.
      Green's medical care from December 11 through December 13, 2015, incurred as
      a result of her work-related fall.

   2. Rogers Group shall provide a panel of physicians from which Ms. Green may
      choose an authorized physician to provide medical treatment for her work-related
      injury ofDecember 11, 2015.

   3. Issues regarding payment of medical expenses incurred subsequent to Ms. Green's
      initial discharge from Skyline Hospital on December 13, 2015, and temporary
      disability benefits are deferred until an authorized physician addresses them.

   4. This matter is set for a Scheduling Hearing on AprillO, 2017, at 1:30 p.m. C.S.T.

   5. 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)
      (2016). The Insurer or Self-Insured Employer must submit confirmation of
      compliance      with     this    Order    to    the    Bureau    by     email     to
      WCCompliance.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

                                             7
       questions regarding compliance, please contact the Workers' Compensation
       Compliance Unit via email WCC mpliance.Program@tn.g v or by calling (615)
       253-1471.

ENTERED THIS THE I 7 th DAY OF FE


                                             urham, Judge
                                  Court of Workers' Compensation Claims




Scheduling Hearing:

      A Scheduling Hearing has been set with Judge Robert Durham, Court of
Workers' Compensation Claims. You must call 615-253-0010 or toll-free at 855-
689-9049 to participate in the hearing.

       Please Note: You must call in on the scheduled date/time to participate.
Failure to call in may result in a determination of the issues without your further
participation. All conferences are set using Central Time (CT).


                                     APPENDIX

Exhibits:

1.    First Report of Injury
2.    Laboratory Report from Quest Diagnostics
3.    Report from National Toxicology Specialists
4.    Affidavit of Linda Green
5.    Wage Statement
6.    Notice of Filing Medical Records
7.    Affidavit of Thomas Oczkowicz
8.    Medical records of Skyline Medical Center
9.    Medical records of Carthage Family Practice
10.   Medical records and tests unsigned by doctors (for I.D.)
11.   Medical Bills (for I.D.)
12.   Drug Screen form dated March 4, 2016 (for I.D.)
13.   Transcript of various texts (for I.D.)
14.   Affidavit of Jackie Dale Gregory
15.   Affidavit ofLinda Green

                                           8
16.    Note from Peter Alfano, P.A.-C
17.    Note from Acute Surgical Care Specialists
18.    Medical bills from Skyline Medical Center and Carthage Family Practice (I.D.
       only)
19.    C.V. of Dr. Greg Elam


Technical Record:

1.     Petition for Benefit Determination
2.     Dispute Certification Notice
3.     Motion to Dismiss
4.     Show Cause Order
5.     Order on Show Cause Hearing
6.     Request for Expedited Hearing
7.     Employer's Response to REH
8.     Employer's Motion for Extension of Time
9.     Employee's Position Statement
10.    Docketing Notice
11.    Employer's Objection to Admissibility ofRecords
12.    Ms. Green's Position Statement
13.    Rogers Group Position Statement
14.    Rogers Group Response to Employee's Request for Expedited Hearing
15.    Ms. Green's Supplemental and Amended Position Statements


                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Benefits was sent to the following recipients by the following methods of
service on this the_
                  17 day of February, 2017.


Name                      Certified   Via        Via    Service sent to:
                           Mail       Fax       Email
Linda Green                  X                   X      P.O. Box 32,
                                                        Riddleton, TN 37151
                                                        cookiei oeg(a?gmail.com
Heather Douglas                                  X      hdouglas@manierherod.com



                                        Penny S 1 urn, Clerk of Court
                                        Court o    orkers' Compensation Claims

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WC.CourtCierk@tn.gov




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