CLEAR AND CONVINCING DRUG TESTS PRESUMPTION

On July 1, 2011, Tennessee’s workers’ compensation drug-free workplace presumption was amended, strengthening the authority of drug testing when denying the compensability of a workers’ compensation claim.

The Tennessee Workers’ Compensation Act creates a presumption that drugs or alcohol use is the proximate cause of the injury if the injured employee has, at the time of the injury, blood alcohol concentration levels or a positive confirmed drug test as prescribed in the statute. The law originally provided that this presumption could be rebutted by a preponderance of the evidence that the drug or alcohol was not the proximate cause of the injury. On July 1, 2011, an amendment took effect, changing the language requiring “clear and convincing evidence” to rebut the presumption that the intoxication or drug was not the proximate cause of the injury.

What does this mean for Tennessee employers? In other areas of the law where the clear and convincing evidence standard of proof is required, the standard “eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence.” See O’Danielv. Messier, 905 S.W.2 182, 188 (Tenn. Ct. App. 1995). Clear and convincing evidence “produce[s] in the fact finder’s mind a firm belief or conviction with regard to the truth of the allegations sought to be established.” Id. See also Rettenbach Eng’g Co. v. Gen. Realty, Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985).

For example, in Teter v. Republic Parking System, Inc., 181 S.W.3d 330, 341 (Tenn. 2005), the Supreme Court of Tennessee compared and contrasted the clear and convincing evidence standard with the preponderance of the evidence standard. Id. at 333. The case involved a breach of contract suit against a former employer for severance pay allegedly owed under an employment contract. The employer had found after the employee’s termination that he had been guilty of gross misconduct while on the job. The trial court granted summary judgment in favor of the plaintiff employee, stating that there was no “clear and convincing evidence” that the employer would have fired him had it known of the alleged misconduct before his termination. The Court of Appeals affirmed. The Tennessee Supreme Court remanded the case for trial, holding that after-acquired evidence of employee misconduct need only be shown by a preponderance of the evidence. In applying the lower standard, the Supreme Court determined there was an issue of material fact as to whether the company would have fired Teter. The Court stated, “Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions to be shown.” Id. at 341. The Court found no reason to implement a higher standard of evidence which was only implemented to “promote important public policy and preserve prior judicial orders.” Id. at 341.

Moreover, the application of the standard in Walton v. Young, 950 S.W.2d at 960 (Tenn. 1997), involved a blood test confirming that plaintiff, an alleged heir of a decedent in an estate matter, was not the biological child of the decedent. Even though testimony was brought forth to the extent that the plaintiff was told by her mother and her mother’s husband, who had been her assumed father, that the decedent was her biological father, the Court found that the clear and convincing evidence required for proof of the biological relationship had not been reached in light of the blood test.

It is clear from this analysis, and the analysis in additional cases where the standard is discussed, that the use of the clear and convincing standard to rebut the authority of a drug test in the context of the presumption in workers’ compensation law will require more than the employee bringing forth a few witnesses to say that he was not impaired, or other testimonial evidence to that effect.

The strength of the standard will, as contemplated in Teter, be important in the event of an appeal by an employee whose workers’ compensation claims were denied on the authority of this statute, since the clear and convincing standard gives greater weight and strength to the trial court’s ultimate decision.

For additional information on this Employment article, please contact:

Greg Jordan

(731) 423-2414

gjordan@raineykizer.com

Source: Rainey, Kizer, Reviere & Bell

Welcome

Tags: employment