1 TENNESSEE BUREAU OF WOR KERS’ COMPENSATION

W ORKERS’ COMPENSAT ION APPEALS BOARD (HEARD NOVE M BER 27, 2 018 AT KNOXVILLE)

Byron Albright ) Docket No. 2018-01-0109 )

v. ) State File No. 11611-2018 ) Hercules HVAC Pads, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Thomas L. Wyatt, Judge )

Affirmed and Remanded – Filed December 20, 2018

In this interlocutory appeal, the claimant alleges he sustained multiple injuries when he fell from a platform at his place of employment. The defendant denied the claim, asserting the claimant was an independent contractor and not an employee. The trial court determined the claimant was likely to prevail at trial in establishing an employeremployee relationship, and it ordered the payment of certain pa st medical expenses and

the authorization of additional medical treatment. However, th e trial court denied the claimant’s request for temporar y disability benefits. Both par ties appealed. Upon careful consideration of the record, we affirm the trial court’s order and remand the case.

Judge Timothy W. Conner delivere d the opinion of the Appeals Bo ard in which Presiding Judge Marshall L. Davidson, III, a nd Judge David F. Hensley joi ned.

Tim Henshaw, Chattanooga, Tenne ssee, for the employee-appellant /appellee, Byron Albright

L. Blair Cannon, Nashville, Tennessee, for the employer-appelle e/appellant, Hercules HVAC Pads, Inc.

Fact ual and Procedural Background

Byron Albright (“Cla imant”), a 58-year-old resident of Hamilto n County, Tennessee, worked as a construction laborer and maintenance wor ker for Hercules HVAC Pads, Inc. (“Defendant”), a manufacturer of concrete pads for heating and air 

### FILED Dec 20, 2018 11:54 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD2 conditioning units. On November 9, 2017, Claimant was helping reconstruct an elevator

shaft for later installation in D efendant’s owner’s home. When he climbed to a platform to hang a chain hoist, the mechanism moved unexpectedly and he fell to the ground. He reported suffering pain in his hip, foot, and left shoulder. H e was transported by ambulance to a local hospital wher e he was treatedand released . He followed up with his primary care physician, who referred him to Dr. Daniel Doty to treat his shoulder and to Dr. Jesse Doty to treat his foot. 1

Defendant denied the claim for workers’ compensation benefits, asserting Claimant was an independent cont ractor and, therefore, was not entitled to benefits. During the expedited hearing, Defendant’s owner, Phil Lynch, te stified he spoke to Claimant prior to Claimant’s beginning work and urged him on se veral occasions to join the company as an employee, but it was Claimant who insisted he be considered an independent contractor. Accordin g to Mr. Lynch, at Claimant’s request, he was paid as a contract worker, had no taxes withheld from his paycheck, and w as issued a 1099 tax form. Claimant was not given a key to the facility and was not allowed to be in the building unless an employee was present. Claimant did not perf orm any work related to the construction of concrete pads for HVAC units, but instead w as given a list of various projects to be completed that were unrelated or, at most, perip heral to Defendant’s primary business of manufacturin g concrete pads. Mr. Lynch exp lained that the elevator

shaft on which Claimant was work ing on the day of his fall was to be installed in a home he owned in Florida. Another project on the list was to repair part of the metal roof on the building housing Mr. Lynch’s businesses. With respect to t he issue of supervising Claimant’s work, Mr. Lynch testif ied, “the day he was working o n the elevator, I wasn’t aware that that’s what he was doing. I didn’t keep up with wha t he did. As long as he got stuff done, that’s all that m attered to me.” Later in the hearing, he testified, “I wasn’t out there every day telling him what to do.”

Claimant, on the other hand, disputed Mr. Lynch’s testimony. He asserted he wanted to be made an employee. H e claimed Mr. Lynch informed h im that, for the first several weeks, he would be paid as a contract worker, but after that he would be made an employee. Claimant asserted that due to difficulties he had in the past with the Internal Revenue Service, he did not want the financial responsibilities of being an independent contractor, but wanted Defendant to treat him like an employee and withhold appropriate taxes from his paycheck. He further testified, and Defendant a cknowledged, that he was permitted to use the time clock to keep track of his hours and that he was paid at an hourly rate. He was given a list of projects that needed to be completed. Any materials needed for those projects would be purchased by Defendant. Oth er than a few hand tools Claimant kept in his tool belt, a ll other tools and equipment n eeded for the projects were furnished by Defendant. If Clai mant needed help to complete a project, Mr. Lynch

1 The extent and nature of Claimant’s medical treatment is not a t issue in this appeal, and we need not

address it further.3 would assign a company employee to assist him. The following e xchange occurred during Mr. Lynch’s c ross-examination:

Q. Essentially, you paid Mr. Albright to do maintenance work at Hercules, didn’t you?

A. Whatever was needed.

Q. A t a rate of $12 per hour?

A. Y es.

. . . .

Q. Did you have the right t o terminate Mr. Albright?

A . As an independent contractor, I’m sure I did. . . . Again, I have the right to terminate him if he doesn’t do the job properly, but h e was always timely and did his job good.

. . . .

Q. You pro vided the tools?

A. No. He had his own tools. I provided tools that were not [ ]norma l

for him to have as an independent contractor.

Q. But he didn’t have his own tools?

A. H e couldn’t afford them.

Mr. Lynch also acknowledged that, at the time of the accident, Claimant had climbed a ladder provided by the company to hang a chain hoist owned by t he company.

Following the expedited hearing, the trial court concluded Clai mant was likely to prevail at trial in proving he w as an employee instead of an in dependent contractor. Referring to the criteria set forth in Tennessee Code Annotated section 50-6- 102(12)(D)(i) (2018) for determi ning whether an individual is a n employee, the trial court noted that the Tennessee Supreme Court has repeatedly emp hasized the importance of the right to control the con duct of the work, the relevant i nquiry being whether the right existed, not whether it was exercised. The trial court c oncluded, “[Defendant’s] owner maintained the right to control [Claimant’s] work and exe rcised it in several instances, such as designation of his work assignments, the pur chase of materials, the4 authorization for his use of other . . . employees and equipmen t, and authorization to work outside . . . normal working hours.” Moreover, according to the trial court, “[Defendant’s] provision of mater ials, equipment, and helpers . . . makes the work situation appear more like employment.”

As a result, the trial court orde red Defendant to pay certain p ast medical bills, including ambulance charges, emergency room bills, medical expe nses from Claimant’s primary care physician, and medi cal bills incurred for treatmen t with Dr. Danie l Doty and Dr. Jesse Doty. It also ordered Defendant to authorize any fur ther reasonable and necessary medical treatment with Dr. Daniel Doty and Dr. Jesse Doty. However, the trial court denied Claimant’s request for temporary disability benefi ts, determining Claimant had failed to present expert medical proof of such disability. Both parties have appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision pre sumes that the court’s factual findings are correct unless the preponderance o f the evidence is otherwise.

See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the opportunity to observe a witness’s demeanor and to hear in-cour t testimony, we give considerable deference to factual findings made by the trial co urt. Madden v. Holland Grp. of Tenn., Inc. , 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be afforded the trial court’s findings based upo n documentary evidence.” Goodman v. Schwarz Paper Co. , No. W2016-02594-SC-R3-WC , 2018 Tenn. LEXIS 8, at *6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of statutes and regu lations are questions of law th at are reviewed de novo with

no presumption of correctness a fforded the trial court’s conclu sions. See Mansell v. Bridgestone Firestone N. Am. Tire, LLC

, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our obligation to construe the workers’ compens ation statutes “ fairly, impartially, and in accordance wi th basic principles of statuto ry construction” and in a way that does not favor either the employee or the employer. T enn. Code Ann. § 50-6- 116 (2018).

Analysis

Employee versus Independent Contractor

In Smiley v. Four Seasons Coach Leasing, Inc. , No. 2016-06-0104, 2016 TN Wrk. Comp. App. Bd. LEXIS 28 (Tenn. Workers’ Comp. App. Bd. July 15, 2016), we addressed the factors to be considered in analyzing whether the injured worker is an employee or an independent contractor for workers’ compensation purposes. After noting the statutory factors listed in Tennessee Code Annotated section 50-6- 102(12)(D)(i), we explained “[t]hese factors are not absolutes that preclude examination of each work relationship as a w hole and are no more than a mea ns of analysis.” Id. a t5 *10 (citing Masiers v. Arrow Transfer & Storage Co. , 639 S.W.2d 654, 656 ( Tenn. 1982)). We also emphasized, as did the trial court in the pres ent case, that “[w]hile n o single factor is determinative, the Tennessee Supreme Court has repeatedly em phasized

the importance of the right to control [the conduct of the work ].” Id. Finally, we noted that “[t]he fact that a company did not deduct social security or income taxes is not a controlling factor in deciding wh ether an employer-employee rel ationship existed.” Id. at
*11.

In the present case, the trial court determined Claimant was a n employee for workers’ compensation purposes. The court reasoned Mr. Lynch r eserved the right to control the conduct of Claimant’s work and exercised that right on several occasions. Mr. Lynch designated the projects on which Claimant would work, provided tools and equipment Claimant needed to complete those assignments, assign ed an employee to assist Claimant at times, and reserved the right to terminate Claimant if his work was not acceptable. Mr. Lynch acknowledged that Claimant clocked in an d out and was paid by the hour. Finally, the trial c ourt noted Mr. Lynch intended to hire Claimant as an employee and, in effect, treated him as such. Under these circumstances, we conclude the preponderance of the evidenc e supports the trial court’s de termination that Claimant is likely to prevail at trial in proving he was an employee for workers’ compensation

purposes.

Denial of Temporary Disability Benefits

Although the trial court awarded past medical benefits and ord ered Defendant to authorize additional medical treatment, it denied Claimant’s re quest for temporary disability benefits. In doing so, the trial court cited our de cision in Young v. Young

Electric Co. , No. 2015-06-0860, 2016 TN Wrk. Comp. App. Bd. LEXIS 41, at *1 2-13 (Tenn. Workers’ Comp. App. Bd. Sept. 14, 2016), in which we aff irmed a denial of temporary disability benefits because there was no expert medic al evidence the employee in that case had been restricted from working due to a work-related injury.

In the present case, however, Cl aimant asserts there was a sti pulation pertinent to this issue. During the course of the expedited hearing, the following colloquy occurred:

[Counsel for Claimant]: I belie ve they’re willing to stipulate that [Claimant] fell and was injured and is out of work because of those injuries and needed medical treatment for those injuries. It’s just the issue is w hether he’s an employee. And based on that sti pulation, we’re not calling Ms. Day because she would just corrobor ate the medical situation largely. (Emphasis added).

[Trial Court]: All right. Does that stipulation go so far as t o say he fell and was injured at the Hercules HVAC premises?6

[Counsel for Defendant]: Yes. O n their premises on November 9 th , 2017.

Counsel fo r Defendant did not obj ect to the characterization of the stipulation as stated by

counsel for Claimant and agreed with the court’s clarification of that stip ulation. However, Defendant argues that t he stipulation

, which was enter ed into after Claimant’s testimony was complete, was never intended to address the issue of temporary disab ility,

but was instead intended to avo id the necessity of calling a fa ct witness who would testify

to the impact of the alleged injury on Claimant’s physical cond ition

. Defendant further argues that it never agreed Claimant would qualify for temporar y d isab ility ben efits if the

trial court found he was an empl oyee instead of an ind ependent contractor.

As we have noted previously, “[p]arties are b ound by the oral s tatements and
agreements made b y their a ttorneys in open court.” Demotte v. United Parcel S ervice

, No. 20 17 -06-1778, 20 18 TN Wrk. Comp. App. Bd. LEXIS 38, at *8 ( Tenn. Wo rkers’ Comp. App. Bd. Aug. 13, 2018) (citing Prater v. Louisv ille & N. R. Co.

, 462 S.W.2d 5 14,

5 19 (Tenn. Ct. App. 19 70)). Unde r such circumstances, a stip ul ation is binding and “obviate[s] the need

for [the pa rties] to present expert medica l proof on that issue. ” Id. at
*9-1 0. However, if a stipulation is ambiguous and uncertain in its terms, it shou ld be disregarded. See, e.g.

, Stumpen horst v. Blu rton

, No. W2000-02977 -COA-R3-CV, 2002

Tenn. App. LEXIS 16 1, at * 11 (Tenn. Ct. App. Feb. 27, 2002) (a s tipulation must
be “definite and certain in o rder to afford a prope r basis for jud icial decision”).

Moreover, in Simp son v. Satterfield

, 5 64 S.W.2d 9 53 (Tenn. 1978), the Tennessee Supreme Court addressed an emplo yee’s burden with respect to a claim for temporary
d isability benefits:

[T]o make out a prima facie case of entitlement to temporary to tal disability, an employee must prove that he was (1) totally disa bled to work by a compensable injur y; (2) that there wa s a causal connection between the injury and his inability to work ; and (3) the duration of that period of disability. Temporary disability b enefits are terminated either by the ability

to return to work or attain ment of maximum recovery.

Id. at 955. As a result, the ques tion we must address is whether the parties entered into a stipulation regarding Claimant’s entitlement to temporary disab ility benefits in the event the trial court determined he was an employee and, if not, whet her Claimant has satisfied the elements necessary to show he is likely to prevail on this issue at trial.

Claimant argues that even if the stipulation did not obviate t he need for expert medical proof of causation, this case falls in a category of ca ses recognized by the Tennessee Supreme Court as so “obvious, simple and routine” tha t expert medical proof of causation is unnecessary. See Orman v. Williams Sonoma, Inc. , 803 S.W.2d 672, 676 (Tenn. 1991) (“Except in the most obvious, simple and routine c ases, the claimant in a7 workers’ compensation action must establish by expert medical e vidence the causal relationship . . . between the claimant’s injury (and disabilit y) and the employment activity.”).

We previously addressed this issue in Willis v. All Staff , No. 2014-05-0005, 2015 TN Wrk. Comp. App. Bd. LEXIS 42 (Tenn. Workers’ Comp. App. Bd. Nov. 9, 2015), where we noted that, given the substantial amendments to the Wo rkers’ Compensation Law that took effect in 2014, “it is unclear whether expert med ical testimony is now required in cases deemed to be ‘obvious, simple and routine.’” 2 Id. at *27. On appeal, the Tennessee Supreme Court’s Special Workers’ Compensation App eals Panel agreed with our conclusion that the causal relationship between the al leged accident and the employee’s medical condition in t hat case was not “obvious.” Willis v. All Staff , No. 2014-05-0005, 2017 Tenn. LEXIS 455, at *13 (Tenn. Workers’ Comp . Panel Aug. 3, 2017). In the present case, Clai mant asserts that the Panel’s discussion of “obvious”

cases of medical causation in Willis is an implicit acknowledgment that the principle espoused in Orman , that an employee need not present expert medical proof of cau sation in “obvious, simple and routine” cases, survived the recent ame ndments to the law. However, we do not interpret the Panel’s decision in Willis as broadly as is suggested by Claimant. Instead, we conclude that Willis does not directly address whether an employee must present expert med ical proof of causation in case s deemed to be “obvious, simple and routine.”

In the present case, we conclude that the terms of the stipulat ion were ambiguous or incomplete as they may have pertained to the issue of tempor ary disability. Moreover,

even if we were to conclude the parties’ stipulation in the pre sent case had obviated the need for expert medical evidence on the issue of temporary disa bility and medical causation, Claimant did not pres ent sufficient ev idence of the duration of any such temporary disability, which is a n ecessary component of an empl oyee’s prima facie claim for temporary benefits. Therefo re, we affirm the trial court’s denial of Claimant’s claim for temporary disability benefits.

Conclusion

Based on the foregoing, we affi rm trial court’s order and rema nd the case.

2 The 2013 Workers’ Compensation Reform Act amended the definiti on of “injury” to state that “an injury causes death, disablement o r the need for medical treatm ent only if it has been shown to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the death, disablement or need for medical treatment, considering a ll causes.” Tenn. Code Ann. § 50-6- 102(14)(C) (2018).TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Byron Albright ) Docket No. 2018-01-0109 )

v. ) State File No. 11611-2018 ) Hercules HVAC Pads, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Thomas L. Wyatt, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Bo ard’s decision in the referenced case was sent to the following recipients by the following methods of service

on this the 20th da y of December, 2018.

Name Certified

Mail First Class

Mail Via

Fax Fax

Number Via

Email Sent to:

Tim Henshaw X tim@mcmahanlawfirm.com

G. Brent Burks X brentburks@mcmahanlawfirm.com

L. Blair Cannon X blair.cannon@thehartford.com Thomas L. Wyatt

, Judge X Via Electronic Mail

Kenneth M. Switzer

, Chief Judge X Via Electronic Mail Penny Shrum, Clerk, Court of Workers’ Compensation Claims X Penny.Patterson-Shrum@tn.gov

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