1 

TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

WORKERS’ COMPENSATION APPEALS BOARD 

David Carpenter ) Docket Nos. 2017-08-0232 

) 2017-08-0233 

v. ) 

) State File Nos. 4008-2017 

Southern Transit, et al. ) 14688-2017 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Deana C. Seymour, Judge )

Affirmed and Remanded – Filed March 1, 2018 

In this interlocutory appeal, the employee alleged an injury to his low back while driving 

a truck owned by one of several employers named as defendants. During the expedited 

hearing, the trial court was asked to address whether the employee came forward with 

sufficient evidence to establish a likelihood of prevailing at trial with respect to the issue 

of medical causation and, if so, which employer is responsible for the claim. The trial 

court concluded the employee established he would likely prevail at trial on the issue of 

medical causation and placed responsibility on the company that owned the truck the 

employee was driving, controlled the conduct of the employee’s work, and paid his 

wages on the date of the injury. We affirm the trial court’s decision and remand the case. 

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding 

Judge Marshall L. Davidson, III, joined. Judge David F. Hensley filed a separate opinion 

concurring in part and dissenting in part. 

Michael W. Jones, Nashville, Tennessee, for the employers-appellants, P&M Logistics 

and Carter O’Neal Logistics 

Monica Rejaei, Memphis, Tennessee, for the employee-appellee, David Carpenter 

J. Allen Brown, Nashville, Tennessee, for the employer-appellee, Southern Transit
2 

Factual and Procedural Background 

 David Carpenter (“Employee”), a sixty-six year old resident of Shelby County, 

Tennessee, worked as a truck driver and typically completed a FedEx route from 

Memphis, Tennessee to Greenville, Mississippi several times a week. Pursuant to a 

program put in place by FedEx, multiple independent trucking companies contracted to 

cover various FedEx delivery routes. To be eligible to cover FedEx routes, trucking 

companies and drivers were required to be pre-approved by FedEx. 

 In the present case, Carter O’Neal Logistics (“Carter”) and P&M Logistics 

(“P&M”) were two trucking companies owned and operated by Boris Penchion 

(“Penchion”).1

 A third company, Southern Transit, was owned by Penchion’s friend, 

Macilyn Harper (“Harper”). FedEx pre-approved these three companies to cover certain 

delivery routes. In an effort to assist Harper with the operation of her company, Penchion 

instructed his Operations Manager, Mike Mathias (“Mathias”), to run the day-to-day 

operations of Southern Transit as well as his companies.2

 Mathias hired and supervised 

truck drivers, assigned drivers to various routes, and, according to Penchion, was 

authorized to “run the operation on my businesses.” Penchion further explained that 

Mathias “deals with the drivers and the trucks and makes sure everybody is where they 

need to be.” 

 Although Penchion was responsible for FedEx’s Memphis-to-Greenville route, he 

allowed Harper’s company to run that route to give her a “consistent income every 

week.” Harper did not hire Employee personally to drive her truck and, in fact, never 

met Employee prior to the expedited hearing. Instead, Mathias hired Employee and 

assigned him to Southern Transit’s truck. 

 Employee operated the Memphis-to-Greenville route in Southern Transit’s truck 

until November 2016. At some point that month, Southern Transit’s truck became 

inoperable. As a result, Mathias instructed Employee to run the route with one of 

Carter’s trucks. During the weeks Employee was operating Carter’s truck, his wages 

were paid by Carter. He received no wages from Southern Transit when he was not 

operating the Southern Transit truck. 

 As Employee was operating Carter’s truck, he began to experience pain and other 

symptoms in his low back. He asserted that the driver’s seat in the Carter truck was not 

adjusting properly and caused his low back symptoms that manifested on or about 

 

1 For purposes of a previously-filed motion for summary judgment and the expedited hearing, the trial 

court treated Carter and P&M as “related entities considered one employer for purposes of this litigation.” 

No party objected to this characterization and the issue has not been raised in this appeal. Therefore, like 

the trial court, we treat Carter and P&M as one employer for purposes of this appeal. 

2

 Mathias was paid by one of Penchion’s companies and never appeared on Southern Transit’s payroll. 
3 

November 29, 2016. Thereafter, on or about December 8, 2016, he experienced 

increased pain while exiting the Carter truck. He reported these incidents to Mathias. 

 When Employee received no response from Mathias, Penchion, or Harper, he 

contacted Southern Transit’s workers’ compensation insurer directly. The insurer 

provided a panel of physicians, from which Employee selected Dr. Samuel Schroerlucke. 

After several visits, however, Southern Transit’s insurer denied Employee’s claim and 

declined to authorize any further medical treatment. The insurer also terminated 

temporary disability benefits. Employee did not return to work for Carter, P&M, or 

Southern Transit. 

 At the expedited hearing, Employee, Penchion, and Harper testified in person. In 

addition, the trial court considered the deposition testimony of Dr. Schroerlucke and other 

exhibits admitted into evidence. Thereafter, the trial court concluded that although 

Employee was originally hired and paid by Southern Transit, at the time of his work 

injury, he was working under an implied contract of employment with P&M or, in the 

alternative, P&M was his “special employer” as of the date of the work injury.3

 The trial 

court further concluded Employee satisfied his burden of proof on the medical causation 

issue through the testimony of Dr. Schroerlucke, who opined Employee’s condition was 

“fifty-one percent or more related to his employment.” Carter and P&M have 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) (2017). When the trial judge has had the 

opportunity to observe a witness’s demeanor and to hear in-court testimony, we give 

considerable deference to factual findings made by the trial court. 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 upon 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 regulations are questions of law that are reviewed de novo with 

no presumption of correctness afforded the trial court’s conclusions. 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’ compensation statutes “fairly, 

impartially, and in accordance with basic principles of statutory construction” and in a 

way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-

116 (2017). 

 

3 Because the trial court considered Carter and P&M to be “related entities,” it collectively referred to 

those two companies as “P&M.” 
4 

Analysis 

Implied Contract of Hire/Loaned Servant Doctrine 

 On appeal, Carter and P&M assert the trial court erred with respect to the 

“contract of hire and employment status of . . . Employee.” Specifically, they argue “the 

weight of the evidence reveals neither P&M nor any related entity was the actual 

employer of [Employee] during any period [in] which he alleged to have been injured.” 

Instead, Carter and P&M argue that Penchion merely “lent his truck to Southern and 

never hired Mr. Carpenter.” 

 Tennessee Code Annotated section 50-6-102(12)(A) (2017) defines “employee” to 

mean “every person . . . in the service of an employer . . . under any contract of hire or 

apprenticeship, written or implied.” In Black v. Dance, 643 S.W.2d 654 (Tenn. 1982), 

the Tennessee Supreme Court addressed the employment relationship as follows: 

In order for one to be an employee of another for purposes of our 

Workers[’] Compensation Law, it is . . . required that there be an express or 

implied agreement for the alleged employer to remunerate the alleged 

employee for his services in behalf of the former. 

Id. at 657 (emphasis added). Thereafter, the Tennessee Court of Appeals concluded the 

Supreme Court’s opinion in Black “unequivocally enunciates the rule that there must be 

an express or implied contract for compensation for services in order to support a status 

of employee under the Workers[’] Compensation Act.” Hill v. King, 663 S.W.2d 435, 

439 (Tenn. Ct. App. 1983) (emphasis added). 

 In Federal Ins. Co. v. Pennsylvania National Mutual Casualty, No. M1999-01917-

WC-R3-CV, 2000 Tenn. LEXIS 449 (Tenn. Workers’ Comp. Panel Aug. 17, 2000), the 

deceased worker had worked as a concrete finisher for a construction company for nine 

years. Id. at *2. On the day of the accident, the decedent had been asked to work for 

another construction company because that company “needed a person to assist his 

regular employees with concrete finishing work.” Id. During the course of his work for 

the second company, the decedent was electrocuted. Id. at *4. 

 

 In analyzing whether the circumstances of the case were covered by the “loaned 

servant” doctrine, the Court in Federal Ins. Co. explained, 

When a general employer loans an employee to a special employer, the 

special employer becomes liable for work[ers’] compensation only if (a) the 

employee has made a contract of hire, express or implied, with the special 

employer; (b) the work being done is essentially that of the special 
5 

employer; and (c) the special employer has the right to control the details of 

the work. 

Id. at *6. Thereafter, the court considered whether an implied contract of hire existed, 

which “require[d] an express or implied agreement for the alleged employer to pay the 

alleged employee.” Id. The court then explained, “[t]he test for whether or not one is a 

loaned servant focuses less on who was to pay the employee, but instead focuses more on 

for whom the work was being done.” Id. at *7. 

 In the present case, it is undisputed that Mathias, Penchion’s Operations Manager 

who directed Employee’s day-to-day work activities, was hired and paid by one of 

Penchion’s companies. It is further undisputed that FedEx had assigned the dedicated 

Memphis-to-Greenville route to Penchion, who allowed Southern Transit’s truck to run 

that route. There is no question that Mathias instructed Employee to operate a Carter 

truck when Southern Transit’s truck became inoperable, resulting in Employee receiving 

wages from one of Penchion’s companies during the weeks Employee operated the Carter 

truck. Employee has asserted that the cause of his work injury was the driver’s seat in 

Carter’s truck. Finally, when Employee sought to report his work injury, he contacted 

Mathias, who, in turn, contacted Penchion. 

 Thus, when considering the three-pronged test as enunciated in Federal Ins. Co., 

we conclude that, when Mathias instructed Employee to operate the Carter truck, Carter, 

one of Penchion’s companies, entered into an implied contract with Employee to pay him 

for that work. Moreover, the work performed by Employee was essentially that of 

Penchion, who was ultimately responsible for the Memphis-to-Greenville route. Finally, 

Mathias, who was employed and paid by one of Penchion’s companies, had the authority 

to control the details of Employee’s work. Therefore, we conclude that the evidence does 

not preponderate against the trial court’s determination that an implied contract of 

employment existed between Carter and Employee during the weeks he operated the 

Carter truck and was paid by Carter. 

 Carter and P&M insist that Employee admitted during his testimony he had been 

hired by Southern Transit, completed employment paperwork for Southern Transit, and 

was paid by Southern Transit. Employee further acknowledged that he never completed 

any employment paperwork for Carter or P&M. Yet, the very nature of an “implied 

contract of hire” indicates the concept applies in circumstances where traditional indicia 

of the hiring process are absent. Instead, the Tennessee Supreme Court has indicated it is 

the agreement for remuneration and the right to control the details of the work that 

underlie an implied contract of employment. Here, it is undisputed that Mathias, the 

Operations Manager for Carter and P&M, instructed Employee to operate a Carter truck, 
6 

and Carter paid Employee for his work while operating a Carter truck. This arrangement 

supports the trial court’s finding of an implied contract of hire.4

 

Medical Causation

 Carter & P&M next argue that Dr. Schroerlucke’s medical causation opinion is 

“flawed.” Specifically, they assert that Dr. Schroerlucke offered “wavering opinions” 

during his deposition and relied, in part, on Employee’s subjective description of when 

his symptoms manifested. As the Supreme Court’s Special Workers’ Compensation 

Appeals Panel has explained, however, a “trial judge has the advantage of viewing the 

written medical proof through the prism of his/her findings as to the credibility of the lay 

witnesses, especially regarding subjective complaints relied upon by the physician.” 

Peeler v. Erin Truck Way, Ltd., Inc., No. M2004-02045-WC-R3-CV, 2005 Tenn. LEXIS 

848, at *8 (Tenn. Workers’ Comp. Panel Oct. 11, 2005). 

 In Indiana Lumberman’s Mutual Ins. Co. v. Ray, 596 S.W.2d 816 (Tenn. 1980), 

the Tennessee Supreme Court addressed a trial court’s reliance on medical expert 

opinions based on an employee’s subjective complaints: 

[T]he treating physician, and the only expert witness that testified, stated 

that his opinion of the permanency of plaintiff’s disability was based upon 

“recurrent episodes of pain, muscle spasm, limitations of motion, etc. . . .” 

Defendant . . . relies upon one page of its cross-examination for the 

proposition that [the physician’s] evaluation of permanency was based 

entirely on subjective complaints, but, of course, his testimony must be 

evaluated in its entirety. 

Id. at 819. The Court then concluded, “[t]his record contains ample material evidence, 

both expert and lay, to support the trial judge’s finding of sixty percent permanent partial 

disability.”5

 Id. 

 

4 We further conclude that Penchion’s decision to give Southern Transit the profits from the Memphis-toGreenville runs completed while Employee was operating Carter’s truck is not pertinent to this analysis. 

While Penchion had agreed to allow Southern Transit to operate that particular route, Penchion was 

ultimately responsible for the dedicated route and could have disposed of the profits in any way he chose. 

While Penchion’s desire to assist Harper with maintaining a steady income and in building her business is 

admirable, it does not change the nature of the implied employment relationship between Carter and 

Employee during the relevant time period. 

5 Although the standard of review at the time Indiana Lumberman’s was decided was different than the 

standard of review we apply on appeal, we conclude the Supreme Court’s rationale remains relevant to 

the issue of a trial court’s consideration of expert medical testimony indicating the expert relied on an 

employee’s subjective complaints in forming his or her opinions. 
7 

 In the present case, Dr. Schroerlucke testified he reviewed with Employee his 

history of symptoms and subjective complaints. An MRI of the lumbar spine revealed 

“severe L4-L5 stenosis.” Although Dr. Schroerlucke admitted the MRI revealed no 

evidence of an “acute injury,” and that he relied on Employee’s subjective description of 

the work incidents and his symptoms, he also reaffirmed his opinion that if driving the 

truck “ignited that pain,” then “his employment caused more than 51 percent of this 

injury.” Specifically, he responded “yes” when asked as follows: 

Ultimately, Doctor, with [Employee’s] facts surrounding his injury – being 

that he was driving a truck, he had a seat that was broken, that was 

repeatedly striking him in the back, and, then, within a very short period of 

time after that happened got out of his truck and began immediately feeling 

this pain that he described to you – in your medical opinion, is Mr. 

Carpenter’s injury more likely than not, meaning more than 51 percent, 

related to his employment? 

 In evaluating this case, the trial court correctly noted that, at an expedited hearing, 

an employee need not prove every element of his claim by a preponderance of the 

evidence, but “must present sufficient evidence for the Court to determine he is likely to 

prevail at a hearing on the merits.” After reviewing Dr. Schroerlucke’s records and 

deposition testimony, the trial court concluded “[Employee] has shown he is likely to 

prevail at a hearing on the merits on the issue of causation.” Implicit in this 

determination is a conclusion that the trial court found Employee’s testimony credible as 

to the work incidents and the development of his pain and other symptoms. At this stage 

of the proceedings, we conclude the evidence does not preponderate against that 

determination. 

Conclusion

 Based on the foregoing, we affirm the decision of the trial court and remand the 

case for any further proceedings as may be necessary. 
1 

TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

WORKERS’ COMPENSATION APPEALS BOARD 

David Carpenter ) Docket Nos. 2017-08-0232 

) 2017-08-0233 

v. ) 

) State File Nos. 4008-2017 

Southern Transit, et al. ) 14688-2017 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Deana C. Seymour, Judge ) 

Opinion Concurring in Part and 

Dissenting in Part – Filed March 1, 2018 

Hensley, J., concurring in part and dissenting in part. 

I agree with the majority’s determination that the medical proof of causation was 

sufficient to establish that David Carpenter would likely prevail at a hearing on the 

merits. However, in my opinion, the preponderance of the evidence does not support the 

trial court’s conclusion that Mr. Carpenter was an employee of P & M Logistics, Inc. (“P 

& M Logistics”), during those days he drove its truck while the Southern Transit, Inc. 

(“Southern Transit”), truck he customarily operated was out of service. I would modify 

the trial court’s order to require Southern Transit to provide the benefits awarded to Mr. 

Carpenter. Accordingly, I respectfully dissent from the majority opinion insofar as it 

affirms an award of benefits to be paid by P & M Logistics. 

Determining who Mr. Carpenter’s employer was on the date of his alleged injury 

requires a detailed analysis of the facts. It is undisputed that Mr. Carpenter was hired as a 

truck driver by Southern Transit approximately two years before his alleged injury. His 

employment with Southern Transit began following a meeting with Mike Mathias 

wherein Mr. Carpenter completed an application to work for Southern Transit and signed 

other paperwork in connection with his employment. From the inception of this 

employment relationship, Mr. Mathias was Mr. Carpenter’s supervisor, to whom he was 

to report any issues concerning his work or the truck he operated. As is addressed in the 

following testimony, although Mr. Mathias was employed by P & M Logistics, he 

managed the day-to-day operations of both Southern Transit and P & M Logistics as 

directed by Boris Penchion, the owner of P & M Logistics. 
2 

Evidence concerning Southern Transit, P & M Logistics, and a third company, 

Carter O’Neal Logistics (“Carter O’Neal”), each being an independent contractor with 

FedEx, is important to understanding how Mr. Penchion came to manage Southern 

Transit and how Mr. Mathias came to oversee the day-to-day operations of Southern 

Transit. In an affidavit filed by Mr. Penchion, he stated he was “the President and owner 

of Carter O’Neal Logistics (aka P&M Logistics).” In the expedited hearing, he testified 

he was the owner of P & M Logistics and Carter O’Neal, and that each had its own 

dedicated routes with FedEx. In an order denying Southern Transit’s motion for 

summary judgment and in the expedited hearing order, the trial court stated that P & M 

Logistics and Carter O’Neal were essentially the same entity. No one has raised an issue 

on appeal concerning the trial court’s treating P & M Logistics and Carter O’Neal as a 

single entity, although the record indicates they are separate corporations that both the 

trial court and the majority treat as a single entity. 

Mr. Penchion’s initial involvement with FedEx began in 2007 when P & M 

Logistics entered into a contract with FedEx. He testified P & M Logistics had a truck 

with a dedicated route and “a wild truck,” which he explained is a truck that runs routes 

but does not have a dedicated route. The following year, he started Carter O’Neal “when 

[he] started buying other contractors out.” He testified that in addition to the two P & M 

Logistics trucks, he had “probably four spare trucks over there that [he] can run any way 

that [he] want[s] to.” He explained that spare trucks “are the trucks we use, like just in 

case something breaks down or you use as needed, because when you look at those 

trucks, they run 250 to 300,000 miles a year.” He explained that the need for spare trucks 

was due to the number of days the trucks were in operation and the limited time the 

trucks are available for servicing before they have to go out on the road again. 

Mr. Penchion testified he had eight or nine trucks with Carter O’Neal and that 

these trucks, the P & M Logistics trucks, and the spare trucks were all on FedEx’s yard. 

He stated that when he started working with FedEx he would, on occasion, have to use 

another contractor’s spare truck because he did not have the number of trucks he now 

has. He stated that as far as FedEx was concerned, they wanted contractors, trucks, and 

drivers that were in their system, and if another contractor needed a truck and he had a 

spare truck, it would not be any “big deal” for him to let another contractor use one of his 

trucks. He further explained that FedEx paid the owner of the truck used to make the run, 

irrespective of the driver who completed the run. 

Macilyn Harper is the president of Southern Transit, which she testified was her 

“part-time side job, extra income job.” She described her “full-time” job as a preschool 

teacher. Southern Transit first became an independent contractor with FedEx in 2010, at 

which time it was not assigned designated routes. Rather, Southern Transit’s trucks were 

initially “on a rotation board” and would only produce income when the trucks went out. 

Southern Transit “ran off the board” until approximately two years ago when Mr. 

Penchion agreed to help Ms. Harper by allowing Southern Transit’s one remaining truck 
3 

to run the dedicated route from Memphis, Tennessee to Greenville, Mississippi that one 

of Mr. Penchion’s companies had with FedEx. She stated this “gave [her] a consistent 

income every week.” According to Ms. Harper, the dedicated route “was not my 

contracted [route], but [Mr. Penchion] allowed me to do it . . .,” which was “something 

that he did to help me out.” 

Ms. Harper testified she “assumed” Mr. Mathias was the person who hired Mr. 

Carpenter and stated “Mr. Carpenter was put in my truck, but I never met Mr. Carpenter.” 

When asked how she knew to pay Mr. Carpenter, she responded “[h]is filing status, full 

name, address, social, all that was passed on to me, and I passed it on to my payroll 

company.” She never disputed that Mr. Carpenter was hired by Mr. Mathias as an 

employee of Southern Transit. She said on a couple of occasions Mr. Carpenter called 

her and told her he did not receive a paycheck stub and she printed the stubs and “took 

them to the FedEx yard, and put them in the truck.” She acknowledged that if Mr. 

Carpenter had any issues while driving Southern Transit’s truck he was to call Mr. 

Mathias. However, she said she did not hire Mr. Mathias and that Mr. Mathias was not 

an employee of Southern Transit. She testified Mr. Mathias worked for one of Mr. 

Penchion’s companies, stating “I’m not sure under which company it is, but he works for 

Boris [Penchion], one of Boris’s companies.” 

It is clear from the testimony of both Ms. Harper and Mr. Penchion that Ms. 

Harper had very limited, if any, involvement in Southern Transit’s day-to-day operations. 

She was asked whether she could “overrule” instructions that Mr. Mathias might give Mr. 

Carpenter and responded “normally, I don’t get involved in the operation of the 

assignment, the truck, the run. . . . So I wouldn’t have a reason to override or else really 

get involved.” Her testimony evidenced both her lack of involvement in Southern 

Transit’s operations and Mr. Penchion’s willingness to help her. 

Q. How would you know - - if [Mr. Carpenter] showed up for work, how 

would you know how much to pay him that week? 

A. I would not know, unless I was told, maybe [Mr. Mathias] or [Mr. 

Penchion]. . . . And maybe Mr. Mathias would tell [Mr. Penchion]. So I 

wouldn’t know. If Mr. Carpenter was in the truck, I wouldn’t know. 

. . . . 

Q. Okay. Did you have any control over the day-to-day work activities of 

Mr. Carpenter? 

A. No. 

Q. Did you have any control over supervising him in any way? 
4 

A. No, I did not. 

Q. Did you ever reprimand him or punish him or - - 

A. No. 

Q. - - did you ever give him a good write-up or a bad write-up? 

A. No. 

Q. Did you ever do any of those activities that normally an employer 

would do on behalf of an employee, like praise or punish or things of that 

nature? 

A. No. I never met him, never spoke to him. 

Q. Why would Mr. Penchion let you run this route of his and enjoy the 

earnings from it? 

A. Well, that was an agreement between him and I [sic], to allow me to 

make the consistent income. I needed some financial help, and he did it to 

help me out. 

Consistent with this testimony, Mr. Penchion testified Ms. Harper allowed him to 

run her company and that he, in turn, empowered Mr. Mathias to manage the day-to-day 

operations of Southern Transit. 

Q. What I was trying to establish - - and please correct me if I am wrong - - 

you have had the route for much longer than David Carpenter has been 

around. And it’s been your employees running the route - - 

A. Yes . . . . Up until the point that [Ms. Harper] needed stable income, and 

me getting it approved. Then yes, I put - - I made sure her truck ran it, and 

I made sure I got her driver to be in the truck on a consistent basis. 

. . . . 

Q. Okay. And it was you or Mike [Mathias] that oversaw the day-to-day 

operations? 

A. Mike, for the most part. I don’t really be [sic] down there. I think, over 

the past five years, I might have been in the FedEx facility four times. 
5 

Q. And the entire time David Carpenter was on her payroll, Ms. Harper’s 

payroll, who did he report to? 

A. As far as what? 

Q. As far as any issues with maintenance of the truck, the route, calling in 

sick? 

A. Mike [Mathias]. Mike was like her driver manager that was free, 

because I paid the bill. So, no matter what, he was like her driver manager. 

But I am the financee [sic]. 

. . . . 

Q. So who was in control of the day-to-day operations of this route? Did 

Ms. Harper have any control whatsoever over it? 

A. If she wanted something to happen, it could, yeah, at the end of the day, 

because at the end of the day, it’s her company. She owns it, the whole 

nine. But at the end of the day, she put me in place to allow me to run it, so 

to do what I thought was best. And in turn, I empowered Mike [Mathias], 

for him to make good decisions on what goes on day-to-day operation. . . . 

I empowered him to run it. 

Mr. Penchion testified that all drivers in FedEx’s system were given a number and 

had to be assigned to a contract, that all of his drivers were assigned “to P&M or Carter 

O’Neil [sic] Logistics,” and that Mr. Carpenter was assigned to Southern Transit. He 

also explained how Mr. Carpenter came to be driving a Carter O’Neal truck at the time of 

his injury in 2016 and whether Ms. Harper would have been aware of the arrangement. 

Q. Earlier, you were asked about this lending of your truck in November of 

2016. Let’s talk about kind of how that went down. You heard Ms. Harper 

testify earlier that when her truck would break down, she would sometimes 

not even know it. And it would get repaired and paid for by you, without 

. . . her knowledge. Do you dispute that? 

A. I just told you I ran the company. She didn’t have to worry about 

anything. Her job was to go - - if she was going to be a school teacher, be a 

school teacher. 

Q. Okay. 
6 

A. She’s telling you honestly. When she sat here and [told] you she really 

doesn’t know what is going on, or the day-to-day, or none of that different 

stuff. 

. . . . 

Q. Okay. And so, when you lent her your truck and - - I guess, did you 

contact her and say, “I’m going to lend you my truck.”? 

A. Probably not, because I probably did not find out, until after the fact, 

that Mike [Mathias] had done it or did it. But it’s not like it’s never 

happened before. I’m saying a lot of stuff that was done was understood 

between me and her . . . . 

. . . . 

Q. So, when a decision has to be made, when a truck breaks down and that 

run has got to go, did Ms. Harper have any say over how that run was going 

to happen the next day, after the truck broke down? 

A. She didn’t want no [sic] say. 

Q. Okay. So who did make the decision as to which truck was going to be 

used and which employee was going to be stuck in the cab? 

A. Evidently, that day, Mike [Mathias] made the decision of who was 

going to do it. He is the operational manager. 

Q. So you weren’t lending the truck to her business. You were using the 

truck to keep your business going? 

A. No. Trust me, I make money. That’s not the issue. I’m lending her the 

truck. I’m making sure that truck - - her company is viable. At the end of 

the day, this is something that I don’t have to do. But at the end of the day, 

I make sure that she was able to make the money, because that was her fulltime job before she became a school teacher. 

. . . . 

Q. Who controls the day-to-day work of the employees? 

A. The operational manager. 
7 

Q. And who is that? 

A. You know that’s Mike [Mathias]. 

Q. Okay. But he is your employee, and he runs your business? 

A. The two companies, yeah. And he runs Southern [Transit,] too. 

Mr. Carpenter’s work arrangement over the two years he worked for Southern 

Transit differed from the arrangement on the date of his injury in two respects. First, on 

the date he was injured, he was driving a truck owned by Carter O’Neal rather than 

Southern Transit due to Southern Transit’s truck being out of operation. Second, Carter 

O’Neal paid his wages for the days he drove its truck. The record does not disclose 

whether P & M Logistics or Carter O’Neal contracted with FedEx for the Memphis-toGreenville route that Mr. Penchion allowed Southern Transit to run. It is clear that 

during the fifty-two week period ending December 9, 2016, Carter O’Neal paid Mr. 

Carpenter wages totaling $560 for approximately two weeks when he drove its truck. 

Mr. Penchion testified “it was just easier for me to go ahead and pay him” rather than pay 

the money to Southern Transit. He did, however, pay Southern Transit the balance of the 

money Carter O’Neal received from FedEx for the runs Mr. Carpenter completed after 

deducting the expenses of operating the truck. Two FedEx “Weekly Independent 

Contractor Settlement Statements” were entered into evidence covering the two weeks 

immediately preceding the time Mr. Carpenter drove Carter O’Neal’s truck, and both 

statements identified the contractor as Southern Transit. The statements identify only one 

driver by number, but do not include the driver’s name. 

The trial court emphasized that Mr. Mathias was the operations manager for P & 

M Logistics, and that he hired and supervised Mr. Carpenter. Although the record 

supports those determinations, it is unrefuted that Ms. Harper allowed Mr. Penchion to 

operate Southern Transit for her, and that Mr. Mathias was empowered by Mr. Penchion 

to run the day-to-day operations of Southern Transit. Indeed, Mr. Penchion’s testimony 

that Mr. Mathias was the operations manager of Southern Transit was undisputed. 

Moreover, Ms. Harper testified that if Mr. Carpenter had any issues with his work or the 

route he drove he was to notify Mr. Mathias. It bears repeating that, despite the peculiar 

circumstances of these business relationships, it is undisputed that Mr. Carpenter was 

hired by Mr. Mathias to operate Southern Transit’s truck. 

Mr. Carpenter testified he had been working with and reporting to Mr. Mathias 

throughout the two years he drove for Southern Transit. He testified that in late 

November 2016 when Southern Transit’s truck “broke down,” Mr. Mathias “just told me, 

‘[g]et in this tractor truck over there,’” referring to a truck he said had Carter O’Neal 

written on its door. He testified he did not sign an application or fill out any paperwork 

when he started driving the Carter O’Neal truck, and that he did not interview with 
8 

anyone to work for Carter O’Neal or P & M Logistics. He testified this was the second 

occasion that Mr. Mathias had assigned him to a Carter O’Neal truck, the first occasion 

being about one year earlier when Southern Transit’s truck would not start. He 

acknowledged he received checks from Carter O’Neal for the two weeks he drove its 

truck. However, his testimony that he had never been an employee of Carter O’Neal or P 

& M Logistics was unrefuted. 

Based upon an implied contract, the trial court concluded “P&M [Logistics] 

employed Mr. Carpenter at the time of his injury.” The trial court additionally 

determined that “[e]ven if the Court had found Southern Transit to be Mr. Carpenter’s 

employer, . . . [P & M Logistics] would be liable for benefits as a ‘special employer’ 

under the loaned servant doctrine.” The majority concludes that “when [Mr.] Mathias 

instructed [Mr. Carpenter] to operate the Carter [O’Neal] truck, Carter [O’Neal], one of 

Penchion’s companies, entered into an implied contract with [Mr. Carpenter] to pay him 

for that work.” Additionally, the majority concludes that “the work being performed by 

[Mr. Carpenter] was essentially that of Penchion, who was ultimately responsible for the 

Memphis-to-Greenville route.” Finally, the majority states that when Mr. Carpenter 

sought to report his work injury, “he contacted Mathias, who, in turn, contacted 

Penchion.” 

 

In my opinion, both the trial court and the majority fail to appreciate that, in 

directing Mr. Carpenter’s work, Mr. Mathias was managing the operations of Mr. 

Carpenter’s employer, Southern Transit, as Mr. Penchion testified he had empowered him 

to do. The trial court and the majority emphasize that Mr. Mathias was employed and 

paid by P & M Logistics as its operations manager, apparently concluding that evidence 

outweighed the undisputed testimony that Mr. Mathias managed the day-to-day 

operations of Southern Transit. He had done so from the date he hired Mr. Carpenter to 

operate Southern Transit’s truck. The fact that Ms. Harper chose not to be involved in 

the operations of Southern Transit, but instead allowed Mr. Penchion and Mr. Mathias to 

operate Southern Transit, does not alter Mr. Carpenter’s employment relationship with 

Southern Transit. Indeed, Ms. Harper acknowledged that Mr. Carpenter was to report 

any issues with the work to Mr. Mathias. Thus, Mr. Mathias was the supervisor to whom 

Mr. Carpenter would be expected to report his work injury. Moreover, Mr. Penchion 

testified he never employed or intended to employ Mr. Carpenter. He described the 

arrangement as “lending” a truck to Southern Transit to run the dedicated route when 

Southern Transit’s truck broke down, thereby keeping Southern Transit “viable.” 

In my opinion, the majority’s conclusion that “the work being performed by [Mr. 

Carpenter] was essentially that of Penchion,” is not borne out by the record; rather, the 

evidence, in my opinion, established that Mr. Carpenter was completing the same route 

he regularly operated for Southern Transit, only in the Carter O’Neal truck while 

Southern Transit’s truck was out of service. The record does not disclose which of Mr. 

Penchion’s companies had a contract with FedEx for the Memphis-to-Greenville route, 
9 

but it was not Mr. Penchion. Mr. Penchion testified the arrangement for Southern Transit 

to run the route was “approved,” that Mr. Carpenter “was assigned to, in FedEx’s system, 

Southern Transit,” and that he thereafter “made sure I got her driver to be in the truck.” 

None of this testimony was refuted. Finally, the majority states that Mr. Mathias “had the 

authority to control the details of [Mr. Carpenter’s] work.” While that is not disputed, 

neither is the fact that in controlling the work, Mr. Mathias was doing so as the manager 

of the day-to-day operations of Southern Transit. 

My review of the record leads me to conclude that the preponderance of the 

evidence does not support the trial court’s determination that P & M Logistics was Mr. 

Carpenter’s employer on the date of his injury. Accordingly, I would reverse that part of 

the trial court’s order implying a contract of hire between Mr. Carpenter and P & M 

Logistics and modify the order to hold Southern Transit liable for the benefits awarded to 

Mr. Carpenter. 
 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

David Carpenter ) Docket Nos. 2017-08-0232 

) 2017-08-0233 

v. ) 

) State File Nos. 4008-2017 

Southern Transit, et al. ) 14688-2017 

)

)

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Deana C. Seymour, Judge ) 

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 1st day of March, 2018. 

Name Certified 

Mail 

First Class Mail Via 

Fax 

Fax Number Via 

Email 

Email Address 

Monica Rejaei X mrejaei@nstlaw.com 

J. Allen Brown X allen@jallenbrownpllc.com 

Michael Jones X mjones@wimberlylawson.com 

Deana C. Seymour, 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