The opinion
FILED
Nov 24, 2020
02:11 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
DEBORAH MORGAN, ) Docket No. 2020-07-0266
Employee, )
v. )
BEALL MANUFACTURING, INC., ) State File No. 29562 2020
Employer, )
And )
TRAVELERS, ) Judge Amber E. Luttrell
Carrier. )
EXPEDITED HEARING ORDER
The Court held an Expedited Hearing on Ms. Morgan’s request for benefits for an
alleged injury to her left hand/wrist. Beall Manufacturing, Inc., denied Ms. Morgan’s claim
for benefits on two grounds.1 First, Beall, a Tennessee Drug Free Workplace, contended
she refused to submit to a post-accident drug screen, which entitles it to a presumption that
the proximate cause of her injury was the influence of drugs. Second, Beall argued Ms.
Morgan did not prove she is likely to establish medical causation at trial. For the reasons
below, the Court holds that Beall is not entitled to the presumption under the drug free
workplace rules and Ms. Morgan did not show she is likely to prevail at trial in proving
medical causation, so the Court denies her request for benefits.
History of Claim
Ms. Morgan alleged an injury to her left hand/wrist on May 5, 2020, while working
on a press. She testified that while working with small parts that traveled down a chute into
a bin, she noticed the parts were overflowing the bin. When she moved the parts to make
room, she felt a “pop” in her left hand/wrist.2 She reported the injury to her supervisor.
1
At the hearing, the parties referred to Ms. Morgan’s employer as CSI, a wholly-owned subsidiary of Beall
Manufacturing. For consistency with the pleadings, the Court refers to the employer as Beall throughout
the Order.
2
Ms. Morgan experienced soreness in her hands the previous week while working with heavy blades and
asked her supervisor to move her to a lighter job.
1
The next morning, Ms. Morgan called the safety manager, Keith Henneberger, and
requested medical treatment. He gave her a verbal panel of physicians, and she selected
McKenzie Medical Center. Upon arrival, the clinic required her to undergo a supervised
post-accident drug screen.
Ms. Morgan’s undisputed testimony was that she produced two urine samples;
however, the nurse disposed of the samples because there was “not enough.” Ms. Morgan
stated she drank water between the two samples. She next saw the provider and after her
exam, she again attempted to produce a sample but was unable. Ms. Morgan stated the
nurse refused to test her again and did not offer any other type of drug screen. She was at
the clinic for over three hours. The provider remarked on a lab note that Ms. Morgan had
a “shy bladder.” The provider referred her to another physician for further evaluation of
her hand/wrist, but Beall denied the claim, alleging she violated its drug free workplace
policy by refusing to submit to a drug screen.
Later, Ms. Morgan spoke to Carol Holt, Beall’s human resources representative, and
advised that she could not return to work until she had treatment for her injury. Ms. Morgan
did not provide Beall an off-work slip, and Ms. Holt subsequently terminated her for
violation of Beall’s attendance policy.
Ms. Holt testified regarding two random drug tests Ms. Morgan underwent one
week before the injury date, which were administered by Jamie Moore, a third-party
staffing specialist. According to Ms. Holt and the affidavit testimony of Ms. Moore, both
samples were marked “no temp.” Ms. Morgan disputed the accuracy of the reports and
stated the notations were added by “someone” after she signed the form. Although the test
results were negative, Ms. Holt terminated Ms. Morgan on May 4 based on the temperature
of the samples. Ms. Morgan appealed the decision and was returned to work on May 5, the
injury date.3
Ms. Holt further testified that, at the time of Ms. Morgan’s injury, Beall was a
member of the Tennessee Drug Free Workplace.
Findings of Fact and Conclusions of Law
At an expedited hearing, Ms. Morgan must provide sufficient evidence that she
would likely prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *7-8, 9 (Mar. 27, 2015).
3
Keith Henneberger, the Safety Manager, also testified on behalf of Beall. His testimony was duplicative
of Ms. Morgan’s testimony regarding the job she performed on the injury date, the verbal panel he offered,
and that she never gave him an off-work slip following the injury.
2
In its defense, Beall cited Tennessee Code Annotated section 50-6-110(c)(2), which
states, “[I]f the injured worker refuses to submit to a drug test, it shall be presumed, in the
absence of clear and convincing evidence to the contrary, that the proximate cause of the
injury was the influence of drugs, as defined in section 50-9-103.” It further cited the
Tennessee Drug Free Workplace Program rules under Tennessee Compilation Rules and
Regulations 0800-02-12-.06(2), which also states the above presumption.
Beall argued that Ms. Morgan’s inability to produce a sufficient urine sample after
three attempts on May 6, 2020, “is the same as refusing to submit to a post-accident drug
test.” Because Beall is a member of the Drug-Free Workplace Program, it further
contended it is entitled to the presumption that the proximate cause of Ms. Morgan’s
hand/wrist injury was the influence of drugs. The Court is not persuaded by Beall’s
argument.
The proof showed Ms. Morgan did, in fact, produce a supervised urine sample, on
two of the three attempts. However, the nurse disposed of the first two samples because
they were “not enough.” Ms. Morgan was then unable to provide a third sample. The
provider’s report remarked Ms. Morgan had a “shy bladder.” Beall contended that because
Ms. Morgan was at the clinic for over three hours and was provided water, she intentionally
refused to produce a sufficient sample for the drug screen. Absent any supporting medical
proof, the Court finds this argument speculative and unpersuasive. Further, the Court finds
the previous random drug screen incident unusual, but it fails to prove Ms. Morgan refused
to submit to the post-accident drug screen on May 6.
Moreover, under Tennessee Compilation Rules and Regulations 0800-02-12-
.06(4), “if the employee is unable to provide a urine specimen when requested, the United
States Department of Health and Human Services mandatory guidelines on fluid
administration and for alternative oral specimen collection shall be followed.” Beall
introduced no proof that these guidelines for alternative oral specimen collection were
followed. For these reasons, the Court holds no statutory presumption applies regarding
the proximate cause of Ms. Morgan’s injury, and there was no proof that Ms. Morgan’s
hand/wrist injury was caused by intoxication or illegal drug use.
The Court next considers causation. Ms. Morgan must show that her alleged injury
arose primarily out of and in the course and scope of her employment. To do so, she must
prove a work-related incident identifiable by time and place of occurrence. Tenn. Code
Ann. § 50-6-102(14)(A). Further, she must show, “to a reasonable degree of medical
certainty that [the incident] contributed more than fifty percent (50%) in causing the . . .
disablement or need for medical treatment, considering all causes.” A “reasonable degree
of medical certainty” means that, in the treating physician’s opinion, it is more likely than
not considering all causes as opposed to speculation or possibility. See Tenn. Code Ann. §
50-6-102(14)(C)-(D).
3
Applying these principles, the Court finds Ms. Morgan credible in her
uncontroverted testimony that she experienced a “pop” in her hand while moving the parts
in the bin. Therefore, the Court holds she is likely to show a specific incident, identifiable
by time and place, at trial.
The question becomes whether Ms. Morgan appears likely to show that her work
primarily caused the injury and need for treatment. The Court cannot find at this time that
she is likely to meet this burden.
Ms. Morgan saw a panel-selected provider at McKenzie Medical Center; however,
she did not introduce that record or any medical record into evidence addressing causation.
Thus, she has not proven “to a reasonable degree of medical certainty” that her work
“contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.” Thus, the Court must deny Ms. Morgan’s
request for benefits at this time. Tina Woods, the Court’s legal assistant, will contact the
parties to set a Status Hearing.
IT IS ORDERED.
ENTERED November 24, 2020.
_____________________________________
JUDGE AMBER LUTTRELL
Court of Workers’ Compensation Claims
APPENDIX
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer’s Witness List
5. Employer’s Expedited Hearing Pre-Trial Brief
6. Employee’s Pre-Hearing Position Statement (email)
7. Employer’s Potential Exhibit List
Exhibits
1. Deborah Morgan’s Affidavit
2. Jamie Moore’s Affidavit
3. McKenzie Medical Center record (May 11, 2020 service date)
4. Notice of Denial
5. Henry County Medical Center Discharge Instructions (3 pages)
6. Photo of a part
4
7. Photo of a press
8. Separation Notice
9. CSI Attendance Policy
10. Petition for Benefit Determination
11. CSI’s Tennessee Drug Free Workplace Program Application
CERTIFICATE OF SERVICE
I certify that copy of this Order was sent as indicated on November 24, 2020.
Name USPS Email Service sent to:
Deborah Morgan, Employee X X djackmorgan13@gmail.com
6579 Highway 436,
McKenzie, TN 38201
Paul Nicks, Employer’s Attorney X pnicks@travelers.com
_________________________________
Penny Shrum, Court Clerk
wc.courtclerk@tn.gov
5
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082