# FILED

_**-ovember30~2017** TN COURTOF WORKI

. RS'C01JJPINS.ATIO CL.:\IMS
TENNESSEEBUREAU OFWORKERS' COMPENSATION IN THE COURT OFWORKERS' COMPENSATION CLAIMS AT KINGSPORT Time9':01 AM

EDUARDO CARRERAAVILA, Employee, ) Docket Number: 2017-02-0141 ) 

### v. TLGMOTORS, LLC, ) StateFile Number: 18030-2017 ) Uninsured Employer. ) JudgeBrian K. Addington

COMPENSATIONHEARING ORDER

This matter came before the Court on November 28, 2017, for a Compensation Hearing. The central legal issue is the compensability ofMr. Avila's claim for an injury, which occurred when he attempted to use a hand tool at TLG Motors. The Court finds Mr. Avila failed to prove he worked for an employer as defined by the Workers' Compensation Law and to timely file a Petition for Benefit Determination. Therefore, the Courtdenies his claim. History ofClaim Mr. Avila knew the owner of TLG Motors, Mr. Ted Georgio, through Mr. Georgio's mother, a restaurant owner. Mr. Avila normally worked for Ms. Georgio. When she could not provide him with work, Mr. Avila occasionally cleaned cars at TLG Motors. Mr. Avila injured his right middle finger while cleaning cars at TLG Motors on August 16, 2014. He wentto the hospital and later underwent surgery. Ms. Georgio paid for his surgery, but the initial treatment remains unpaid. Mr. Avila was unsatisfied with the surgical results and requested additional treatment, which Ms. Georgio denied. Mr. Georgio testifiedthat he did not have any employees, while Mr. Avilatestified Mr. Georgio employed workers at more than one location. Bureau Compliance Specialist Rene Gallardo conducted an investigation and concluded that TLG Motors employed three persons. Mr. Avila did not file a Petition for Benefit Determination until March 13, 2017. When the parties were unable to reach an agreement, this Court conducted an Expedited 1Hearing and determined TLG Motors did not meet the definition ofemployer under the Workers' Compensation Law. Mr. Avila did not appeal that decision but chose to proceed to a CompensationHearing. Mr. Avila argued that he wanted his finger "fixed," compensation for his injury and temporary benefits. Mr. Avila did not present any physician notes concerning his injury but did submit an unpaid medical bill. He focused his testimony on complaints about Mr. and Ms. Georgia's lack ofcredibility. TLG Motors appeared without an attorney. The Court did not allow Mr. Georgio to enter any exhibits, make any objections or ask questions, but it did allow him testify. Findings ofFact and Conclusions ofLaw Mr. Avila bears the burden ofproofon all essential elements ofhis claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 20 15). He must establish by a preponderance ofthe evidence that he is entitled to the requested benefits. Willis v. AllStaff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at 

## *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-239(c)(6) (2017) ("[T]he employee shall bear the burden ofproving each and every element ofthe claim by a preponderance ofthe evidence."). This burden begins with proof that he worked for an employer as defined by the Workers' Compensation Law. The Workers' Compensation Law requires all "employers" to provide workers' compensation coverage for their "employees." See Tenn. Code Ann. § 50-6-405(a) (2014). According to Tennessee Code Annotated 50-6-102(12)(A), "an employee includes every person ... in the service ofan employer[.]" An employer is defined as "any individual

... using the services ofnot less than five (5) persons for pay[.]" Tenn. Code Ann.§ 50-6-102(13). To succeed, Mr. Avila must prove that TLG Motors is an employer as defined in the statute. The Court finds that TLG Motors employed three persons as did Bureau Specialist Gallardo. This number is not the required minimum of five to mandate workers' compensation insurance coverage. Thus, it does not meet the statutory definition ofemployer. As such, this Court does not havejurisdiction over TLG Motors. Even ifMr. Avila proved TLG Motors were a covered employer, he failed to file his Petition for BenefitDetermination within one year ofthe date ofhis injury. See Tenn. Code Ann. § 50-6-203(b)(1). The proofverifies that Ms. Georgio paid for his surgery, which may have prolonged the statute of limitations if she did so on behalf of TLG Motors. However, Mr. Avila did not prove Ms. Georgio's connection, if any, to TLG Motors. IT IS, THEREFORE, ORDERED that Mr. Avila's claim is denied on the grounds that TLG Motors is not a covered employer and Mr. Avila did not timely file a Petition
2for Benefit Determination. The Court does not tax a filing fee for this case as TLG Motors is not a covered employer. Ifno appeal is taken, the order shall become final after thirty days.
ENTEREDthis the 30th day ofNovember, 2017.

Evidence 1. Affidavit ofSusanaMancera 

### Is/Brian K. Addingt n BRIAN K. ADDINGTON, JUDGE Court ofWorkers' Compensation Claims

APPENDIX

2. Affidavit ofBalthazarRamirez 3. Affidavit ofJesus Barragano 4. Medical Bill-Franklin Woods Hospital 5. ExpeditedRequest for Investigation Report 6. Collective Exhibit-Photographs Technical Record 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for Expedited Hearing 4. Expedited Hearing Order 5. Scheduling Hearing Order

3CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe Compensation Hearing Order was sent to the following recipients by the following methods ofservice on this the 30th day ofNovember, 2017. Name Certified Via Via Service Sentto: Mail Fax Email 1200Maryland Ave., Eduardo CarreraAvila, X X Bristol, TN 37620 Employee cduurclocarrera2008{ tt"i.llotmuil

.com TLG Motors, X 2121 VolunteerParkway, Employer Bristol, TN 37620

# PE**~A±~ RK**  Court ofW r, ers' Compensation Claims WC.CourtClerk@tn.gov

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