TENNESSEE BUREAUOFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATION CLAIMS ATJACKSON GARYBIRCHETT, Employee, ) ) ) ) ) ) ) DocketNos. 2010-07-0030 2010-07-0031



### v. GAMBRELLHICKORYMILL, UninsuredEmployer. StateFileNos. 2792-2017 2793-2017 JudgeAllen Phillips

EXPEDITED HEARING ORDERDENYINGMEDICALAND TEMPORARYDISABILITYBENEFITS TNCOllR'f'OF n r

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This case came before the undersigned Workers' Compensation Judge on August 30, 2017, on Gary Birchett's Request for Expedited Hearing. Mr. Birchett requested medical and temporary disability benefits for two alleged back injuries. The dispositive issue is whether Mr. Birchett was an employee ofGambrell Hickory Mill (Gambrell) or an independent contractor. 1 The Court holds Mr. Birchett was an independent contractor and therefore is not entitled to the requested benefits. History ofClaim
Mr. Birchett is a diesel mechanic. On different occasions, he has owned and operated his own repair shop. In May 2016, heart bypass surgery forced him to close his most recent business. Afterward, he performed mechanic work for different individuals on his own and worked for a longtime acquaintance who owns a shop in Alabama. Mr. Birchettmoved his toolboxto the shop in Alabama, and he claimedhe continuedworking there until Mr. Jeffery Gambrell, the owner ofGambrell Hickory Mill, offered him ajob in August 2016.

1 Gambrell also contested the occurrence ofthe injuries and medical causation. Because ofthe Court's holding regarding Mr. Birchett's employment status, it need not address these defenses.Specifically, Mr. Birchett claimedMr. Gambrell telephoned himto offer an "easy" job that involved only "pointing fingers" to assist other mechanics. He claimed Mr. Gambrell agreed to pay him a weekly salary of$1,200 and said he should report to work each morning at 8:00 a.m. Mr. Birchett claimed he accepted the offer and with his brother's help moved his toolbox from the shop in Alabama to Mr. Gambrell's shop. He stated he would not have moved the large toolbox had he not intended on working only for Mr. Gambrell. He further believed his agreement to work for Gambrell bound him exclusively to Gambrell. Conversely, Mr. Gambrell contended Mr. Birchett contacted him looking for work. Mr. Gambrell knew Mr. Birchett was a mechanic because he had patronized Mr. Birchett's shop for repairs on Gambrell vehicles. Mr. Gambrell claimed that, in August 2016, Mr. Birchett told him that health issues forced him to close his shop but he had several customers for whomhe couldperformwork ifhe could use Gambrell's shop. Mr. Gambrell replied that he had no present need for mechanic work. However, in an effort to help Mr. Birchett "get back on his feet," he said he would allow him to conduct business in his shop, with no fee, and would offer Mr. Birchett mechanic work for Gambrell as it became available. Mr. Gambrell explained his primary business was the manufacture ofhickory ax handles butthat he also owned several vehicles and equipment thatneededrepair occasionally.
Mr. Gambrell recalled Mr. Birchett offered his mechanic services to others while working at his shop. In fact, Mr. Gambrell testified that on the day ofthe hearing, a customer called looking for Mr. Birchett. Further, Mr. Birchett asked ifGambrell would "build [his wife] an office" at the shop to carry onMr. Birchett'sbusiness.
As for Mr. Birchett's pay, Mr. Gambrell produced a ledger memorializing the payments he made to Mr. Birchett by check during their arrangement. The checks matched repair invoices reflecting Mr. Birchett's work on Gambrell vehicles. Mr. Gambrell said he gave the ledger to his accountant, who produced a Form 1099 for Mr. Birchett. He also noted Mr. Birchett asked to be paid in cash. For his part, Mr. Birchett disputed the accuracy of the amounts on the invoices but admitted his handwriting appeared onthem. The check stubs matched the payments in the ledger. Regarding the injuries at issue, Mr. Birchett claimedhe first injured his back on an uncertain date in September 2016 when flipping a tire. Mr. Gambrell denied knowledge ofthe event. Records documenting the medical care Mr. Birchett received in September 2016 reflectthat Mr. Birchett "(had] his ownbusiness."
Mr. Birchett claimed a second back injury on October 21 when he fell from a tractor. Mr. Gambrell questioned whether he injured his back in a fall because his son

2witnessed 

### Mr. Birchett "wreck" his motorcycle on Gambrell's premises on that day. Medicalrecords again noted Mr. Birchettwas "self-employed."
Mr. Birchett last worked at Gambrell on November 3. He claimed the alleged injuries suffered at Gambrell still prevent him from working except in an "advisory position" for his Alabama acquaintance. His wife called the payments from the Alabama acquaintance "loans" and corroborated her husband's testimony that he only works for his friend in an "advisory" position. However, on cross-examination, Mr. Birchett admittedhis acquaintance in Alabamaprovidedhim aForm 1099 for mechanic work. He requested the Court order Gambrell to pay for his lost time and provide ongoing medical treatment. Findings ofFactand Conclusions ofLaw 

### Standardapplied
Mr. Birchett must come forward with sufficient evidence from which the Court can determine he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6- 239(d)(l) (2016). 

### Analysis
Tennessee Code Annotated section 50-6-102(12)(D)(i)provides:
In a work relationship, in order to determine whether an individual is an "employee," or an "independent contractor," the following factors shall be considered: (a) The rightto controlthe conduct ofthe work; (b) Theright oftermination; (c) The method ofpayment; (d) The freedom to select and hire helpers; (e) The furnishing oftools and equipment; (f) Self-scheduling ofworkinghours; and (g) The freedom to offer services to other entities[.] However, these factors are not absolutes, but merely a means of analysis. 

### Thompsen v. Concrete Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 3, at *15 (Feb. 10, 2015). Moreover, no single aspect is conclusive, but instead "the trier of fact must examine all relevant factors and circumstances" ofthe relationship. 

### Boruffv. 

### CNA Ins. Co., 795 S.W.2d 125, 127 (Tenn. 1990). IfMr. Birchett establishes the existence of an employmentrelationship under this standard, then it becomes Gambrell's burdento prove

3he was an independent contractor. 

### Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 586 (Tenn. 1991). The Courtwill examine the statutory criteria in turn. 

### Rightof control The Tennessee Supreme Court "has repeatedly emphasized the importance ofthe right to control" and that "the relevant inquiry [is] whether the right existed, not whether it was exercised." 

### Thompsen, at *15. Here, Mr. Birchettperformed repair work as he saw fit, not under Gambrell's control and without Mr. Gambrell's participation. Moreover, Gambrell's primary business was not mechanic work but rather wooden handle manufacturing. Mr. Gambrell's skills are not in the area of mechanical repair, but he insteadrelied upon Mr. Birchett's expertise. Likewise, Mr. Gambrell explained from the beginning ofthe relationship that he didnotneed a full-time mechanic but only someoneto do workon a piecemeal basis. Mr. Birchett's claim that Mr. Gambrell offered him a job involving only advising other mechanics is inconsistent with the evidence as a whole, and the Court finds Mr. Gambrell's testimony more credible. Thus, as to the right ofcontrol, the Court finds Mr. Birchetthad the ability to control howhe did the work from the outset and throughout the parties' relationship. 

### Rightof termination "The power of an employer to terminate the employment at any time is incompatible with the full control of the work which is usually enjoyed by an independent contractor, and hence is considered as a strong circumstance tending to show" an employment relationship. 

### Peters v. Jonathan Mitchell, 2016 TN Wrk. Comp. App. Bd. LEXIS 7, at *10 (Feb. 8, 2016). Here, either Mr. Birchett or Mr. Gambrell could have terminated their relationship at any time, and Gambrell had no more powerto end it than did Mr. Birchett. This factor supports a finding that Mr. Birchett was an independent contractor. 

### Methodof payment The Court finds this factor supports a finding of an independent contractor relationship. The Court found Mr. Gambrell's version of the inception of the parties' arrangement more credible. Likewise, it finds his testimony regarding the payment arrangements more credible. Further, the payment history reflected that Mr. Birchett received checks matching the actual services performed and not regular payments indicative of an average weekly wage. Mr. Birchett conceded Gambrell paid him on a different basis for certain activities, such as changing tires, and Mr. Gambrell effectively explained the amounts shown on the invoices. Importantly, the payment ledger and Mr.

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### Birchett's own evidence from his check stubs match identically. In short, the Court finds that Mr. Birchett did not receive a regular average weekly wage like an employee but insteadreceived aper-jobpayment like an independent contractor. Freedom to selectandhire helpers 

### This factor supports an independent contractor relationship. Mr. Birchett admitted hiring a "helper," namely his brother, to work with him at Gambrell's shop and that he paid his brother from the money he made. This is directly indicative ofan independent contractor relationship, as Mr. Birchett introduced no proof that his brother was a Gambrell employee. Additionally, the Court believes Mr. Gambrell's testimony that Mr. 

### Birchett inquired as to whether he would allow his wife to have an office at Gambrell's site to conduct Birchett's business. This, too, is consistent with the Birchetts' understanding thatMr. Birchettworked as an independent contractor. Furnishingof tools 

### This factor supports an independent contractor relationship. Mr. Birchett used his own tools. He provided a photograph taken in Gambrell's shop ofa large cabinet labeled with the name "Gary Birchett Diesel Repair." He identified the cabinet as the same one previously used in his own shop and in the shop in Alabama. Thus, it is clearMr. Birchett not only providedthe tools ofhis trade but also used themto perform repairs on Gambrell equipment instead ofusing tools providedby Gambrell. Self-scheduling 

### The Court notes Mr. Birchett's testimony that Mr. 

### Gambrell told him to report at 8:00 a.m. each morning. However, the payments made to Mr. Birchettreflected neither a regular wage nor a regular amount ofhours. To the contrary, the payment ledger showed various payments for piecemeal work, and the invoices indicatedMr. Birchettworked for different amounts in each pay period. These facts support a finding that he worked at his own pace and at times conducive to completing a given task as opposed to working set hours.
Freedom to offerservices to others 

### The Court finds this factor supports a finding of an independent contractor relationship. Mr. Gambrell explained he did not have sufficient business to hire a mechanic but provided work to Mr. Birchett as it became available. Mr. Gambrell testified that Mr. Birchett actually performed work for others at Gambrell's shop; Mr. Birchett offered no rebuttal.

5Conclusion Based upon the statutory factors, the Courtholds Mr. Birchett was an independent contractor and not an employee ofGambrell Hickory Mill. Because ofthis finding, the Court need not address the issues regarding entitlement to medical and temporary benefits.


### ITIS, THEREFORE, ORDERED as follows: 1. Mr. Birchett's claim for benefits is denied at this time.
2. This matter is set for a Scheduling (Status) Hearing on Thursday, October 26, 2017, at 10:30 a.m. Central time. You must call 731-422-5263 or toll-free 855- 543-5038 to participate in the Hearing. ENTEREDthis the22nd dayofSeptember,:2

APPENDIX Exhibits:
1. Bureau'sExpeditedRequest for InvestigationReport 2. Affidavit ofGaryBirchett-DOI: 9/19/16 3. Affidavit ofGary Birchett-DOI: 10/21/16 4. Affidavit ofDr. Stephen Collier 5. Affidavit ofGeorgeD. Moore 6. Medical Records ofJackson-Madison Co. General Hospital 7. Letter from Dr. Collierregardingpermanentrestrictions 8. Photographs oftoolbox, tire, and tractor (collective) 9. Memorandum stating no liability ofMr. Gambrell for injuries 10.Invoices for repair workperformedby Mr. Birchett 11.Mr. Birchett's check stubs from payments by Gambrell 12.Gambrell's PaymentLedger for checks to Mr. Birchett 13.Copy ofMrs. Birchett's "Linkedin"page advertisingBirchettDiesel Repair

6Technicalrecord:
1. Petition for BenefitDetermination-DOI: 9/19/16 2. Petition for BenefitDetermination-DOI: 10/21116 3. Dispute CertificationNotice-DOI: 9/19116 4. Dispute CertificationNotice-DOI: 10/21/16 5. Request for ExpeditedHearing-DOI: 9/19/16 6. Request for Expedited Hearing-DOI: 10/21/16 7. OrderDenyingDe

_ cision on the RecordExpeditedHearing 8. Transfer Order

CERTIFICATE OFSERVICE
I hereby certify that a true and correct copy ofthis Expedited Hearing Order was sent to the following recipients by the following methods of service on this the 22nd day of September, 2017.
Name
Gary Birchett, Self-Represented Employee Lewis L. Cobb, Esq., Attorney for Employer Certified First Via Service SentTo: Mail Class Email



## x Mail 

## x x 2051 MajorHill Rd. Bethel Springs, TN 38315 lbirchett(a)vahoo.com 

## x lewiscobb@sgraginslaw

.com 

# &**~~ ,** 

# Pe**~**Shrum, ClerkofCourt Court ofWorkers' Compensation Claims WC.CourtClerk@tn.gov

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