TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

ANDRES HERNANDEZ, ) Docket No. 2021-06-1105

Employee, )

v. )

)

SMS, INC., d/b/a Master Stucco,

Employer,

)

)

State File No. 800494-2021

)

and )

)

TRAVELERS PROPERTY 

CASUALTY CO. OF AMERICA, 

)

)

Judge Joshua Davis Baker

Carrier. )

EXPEDITED HEARING ORDER

The Court held a March 16, 2023 expedited hearing to determine Mr. Hernandez’s

entitlement to past and ongoing medical and temporary disability benefits for fracturing his 

left shoulder in a fall at work. Specifically, the issue is whether Mr. Hernandez was an 

employee rather than an independent contractor. For the reasons below, the Court finds he 

is likely to prevail at a final hearing in proving he was an employee, and Master Stucco 

must provide him medical benefits. 

Claim History

Mr. Hernandez traveled to Nashville from Mexico because his brother-in-law, 

Juvencio Rivera Vargas, told him Master Stucco needed workers. He worked on Master 

Stucco jobsites by handing tools and materials to co-employees, cleaning up, and 

performing other unskilled labor.

Master Stucco’s owner, Glen Cruzen, testified that he first met Mr. Hernandez when 

visiting a jobsite, which he did almost daily. Mr. Cruzen recalled, “So, when I went by to 

check on the job, [Mr. Rivera] said, ‘I would like for him to work with us.’ That’s how I 

met him and how he joined us.” 

FILED

Apr 06, 2023

10:51 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
Mr. Hernandez lived with Mr. Rivera and another Master Stucco employee in a 

home that they rented from Mr. Cruzen. The three men rode together to Master Stucco’s 

jobsites. Another worker named Jose, whose last name Mr. Hernandez did not know, lived 

next door to the men in a separate home on the same property. Jose delivered materials to 

jobsites and acted as an interpreter and translator. While Mr. Hernandez said Jose was “in 

charge,” Mr. Cruzen said Jose was “more of a courier.” 

On July 27, 2021, Mr. Rivera asked Mr. Hernandez to help him place “square 

things” on the outside of a chimney at a private residence on a Master Stucco jobsite. As 

Mr. Hernandez walked across a loose board of scaffolding, it gave way, and he fell from 

the top section of the scaffolding onto the scaffolding section below, fracturing his left 

shoulder.

He recalled feeling immense pain and wanting treatment but having no way to get 

to the hospital. After speaking with Mr. Cruzen by phone, Mr. Rivera refused to take Mr. 

Hernandez to a hospital or call an ambulance. He took him home instead. With his arm 

swollen and painful, Mr. Hernandez went next door to ask Jose for help. Jose called Mr. 

Cruzen but told Mr. Hernandez to manage with pain medication and wait until morning.

The next morning, Jose called Mr. Hernandez to say Mr. Cruzen’s son would take 

him to the hospital. He also told him to report that his injury occurred at home from falling 

off a ladder while changing a lightbulb. He encouraged him to ignore any medical bills, 

saying the hospital would not collect. At the hospital, imaging revealed a left shoulder 

fracture. 

From there, Mr. Hernandez had a hard time getting follow-up treatment, missing his 

first appointment because no one would drive him. As he wrote in his declaration, which 

was translated into English, “I didn’t know anyone and I didn’t have anyone to bring me, 

and I don’t speak English[.] I was living in Glenn’s house with my coworkers Juvencio 

and Jose Antonio, and they couldn’t bring me to the hospital [without] permission[.]” 

Eventually, Mr. Hernandez located an organization with volunteers to drive him to doctors’ 

appointments and help him initiate legal action. After he filed his case, Mr. Hernandez was

evicted. 

On August 19, Dr. Philip Elizondo estimated that Mr. Hernandez would be unable 

to work until November 11. He wrote, “Explained to the patient that his fracture will take 

a minimum of 6 weeks to heal in an arm sling. He would also need at least 6 weeks of 

therapy and strengthening exercises before he would be reable [sic] to return to 

construction work.” Despite this prediction, Mr. Hernandez testified he started new 

employment sooner than expected, sometime between October 20-25. 
Mr. Cruzen testified about his company’s work, its “business model,” including why 

he uses undocumented workers, and how he developed a release for workers to sign to 

acknowledge their status as independent contractors. 

He explained that his company does not install stucco but instead repairs a wide 

variety of materials that intersect with stucco and damage it, like roof flashings, window 

caulking, or failed windowsills. Because it’s a “messy business” and skilled labor is 

expensive to use for simple clean-up, the company has “brought in companies who only 

clean up jobsites.” However, Mr. Cruzen said, “Sometimes it’s easier to also have people 

who can do that for us, if it’s small, ‘in house.’” 

Mr. Cruzen said his business model has adapted over thirty years because immigrant 

labor has “dramatically changed” the construction industry. For example, he said that “laws

. . . prevent construction owners from hiring undocumented workers yet [allow] immigrants 

in to compete.” Also, “young kids in our society don’t want to work in construction. They 

have this dream of working at Google and playing video games and getting paid a hundred 

thousand a year.”

From Mr. Cruzen’s perspective, his hiring choices are “ex-convicts, people who 

have judgments against them, people behind in child support, as well as immigrants who 

are not legal to work here. Sad to say: that’s all that’s available.” He hires undocumented 

immigrants because his clients have “above average income” and many valuables. He 

explained, “Sometimes we have access to the inside of their home. . . . Therefore, I need 

people who can be trusted.” So, he added, “We have found that the law does not punish us 

if we use independent contractors.”

He created a “pay arrangement” to keep his company competitive but protected. He 

asked his workers to sign a “Payment & Lien Release” to receive pay, giving them a week 

to review the release. Afterward, employees signed the below when receiving their 

paychecks: 
Mr. Hernandez testified he did not understand the release, knew he needed to sign 

it to receive pay, and simply dared not ask questions. He testified, “I did not come here to 

ask questions; I came here to work.” His Spanish is not the best, according to his 

declaration, nor does he speak or understand English. He testified that the release he signed

has been explained since he signed it, but he is still not sure he understands it. Further, he

did not comprehend the significance of a 1099 form. He stated that he does not know 

whether he received a 1099 or what he would have done with it if he had.

Before coming to Tennessee, Mr. Hernandez worked in Mexico, cleaning homes, 

washing cars, and working in fields. He did not know the Spanish word for “stucco,” only 

recognizing the word’s meaning when the interpreter showed him images on her phone.

From his perspective, asking questions was futile, as he lacked the resources necessary to 

negotiate anything other than what Mr. Cruzen was willing to extend. 

Jose Antonio Baptista, who worked with Mr. Hernandez and still works for Mr. 

Cruzen, testified that he used Google Translate to read the release in Spanish, understood 

it, and willingly signed the statements to receive his pay. He said he considers himself an 

independent contractor, but he also referred to the releases as “proof of payment.” He and 

Mr. Rivera used their own tools, and he said he only works for Master Stucco. 

Both parties testified regarding Mr. Cruzen’s control over the work his company 

performs. Mr. Cruzen testified, “Almost every day I go to every job” to examine the work.

Mr. Hernandez testified that Mr. Rivera would send Mr. Cruzen pictures of their work at 

the end of every workday. And Mr. Cruzen acknowledged, “I have an attention to detail 

that drives people insane, but that is why people hire me to do the work.” 

About Mr. Hernandez’s hiring, he said he told Mr. Rivera, “‘If you like him, that’s 

fine.’” But usually, he said, “I would ask what kind of experience they have because we 

prefer people with construction experience,” as anyone else “may not like inconsistent 

timelines when we cannot work.” He continued, “Those are the kind of people I want, is 

someone who will be there, because if they don’t show up, it affects me . . . After fifty-one

years, you kind of know what you want to find.” And now that he has implemented the 

releases for a worker to receive pay, he said he “explain[s] to the worker the pay 

arrangement before they even start.” 

Findings of Fact and Conclusions of Law

Mr. Hernandez must present sufficient evidence to demonstrate that he would likely 

prevail at a final hearing. Tenn. Code Ann. § 50-6-239(d)(1) (2022); McCord v. Advantage 

Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015). 

Concerning the status of Mr. Hernandez’s work relationship with Master Stucco, 

the Workers’ Compensation Law defines “employee” to include “every person . . . in the 
service of an employer . . . under any contract of hire or apprenticeship, written or 

implied[.]” Tenn. Code Ann. § 50-6-102(10)(A). An employee does not, however, include 

an “independent contractor” or “subcontractor.” Id. at § 50-6-102(10)(D)(i). 

Whether the worker is an employee or subcontractor depends on the nature of the 

business, the way it is conducted, and the worker’s relationship to that business. Seals v. 

Zollo, 327 S.W.2d 41 (Tenn. 1959). When in question, the worker claiming an employment 

relationship exists bears the burden of proof, to be determined by considering the following 

factors: 

(a) The right to control the conduct of the work,

(b) The right of termination,

(c) The method of payment,

(d) The freedom to select and hire helpers,

(e) The furnishing of tools and equipment

(f) Self-scheduling of work hours,

(g) The freedom to offer services to other entities[.]

Id. at § 50-6-102(10)(D)(i). 

Notably, it is “the duty [of courts] to determine if the worker is an employee or 

independent contractor, and the employer cannot use a contract to take that responsibility 

from the court.” Smith v. Beazer Homes, No. W2005-01114-SC-WCM-CV, 2006 Tenn. 

LEXIS 687, at *6 (Tenn. Workers’ Comp. Panel Aug. 23, 2006). Under Workers’ 

Compensation Law, “[n]o contract or agreement, written or implied, or rule, regulation or 

other device, shall in any manner operate to relieve any employer, in whole or in part, of 

any obligation created by this chapter[.]” Tenn. Code Ann. § 50-6-114(a). Therefore, the

signed releases from employees purporting to acknowledge independent contractor status

carry no weight in this analysis. 

Rather, the Court must view the evidence presented through the lens of the seven 

factors listed in the statute and case cited above. The Court applies each factor to determine 

– not what Mr. Hernandez agreed to be called – but the actual working relationship between

him and Master Stucco. 

The picture that emerged from testimony was not that of an independent contractor 

who possessed control, rights, independence, or freedom, which are all words in the 

applicable statutory and case-law factors. In contrast, the employer here controlled

housing, transportation, “pay arrangement,” hours, work conduct and performance, as well 

as hiring and firing. Mr. Hernandez testified that he witnessed two workers, including his 

own brother-in-law, ask permission to get him medical treatment, which demonstrates the 

control Mr. Cruzen exercised over his workforce and jobsites.
As for factor a, Mr. Cruzen used his expertise and attention to detail to control workquality, visiting jobsites and obtaining photographs at workdays’ end. With fifty-one years 

of experience, he could expertly perform the work the men were doing and used that 

knowledge and experience to oversee their work.

Concerning factors b, c, and d, Mr. Cruzen clearly articulated his control over hiring 

and firing, saying that his company’s reputation could not risk hiring someone he deems 

dishonest or irresponsible, like a felon or an absentee parent with a judgment, as he cannot 

risk theft from his clients. He also made decisions concerning pay method, paying the men 

individually and insisting on their signature on a document calling themselves independent 

contractors in exchange for employment. 

Additionally, he exerted control over his workforce as a landlord, which affects 

factors f and g. While, in theory, the men could work elsewhere, they did not. Mr. Cruzen

said his company benefitted from having employees close at hand and “in-house.” As he 

said, the company needs “someone who will be there, because if they don’t show up, it 

affects [him].” Further, Mr. Hernandez could not control his work hours, as Master Stucco 

employees controlled his transportation. He worked when his co-workers at Master Stucco

worked. Similarly, he went to the hospital only when they or Mr. Cruzen’s son decided to 

take him. 

Factor e is of little relevance here because Mr. Hernandez needed no specialized 

tools or equipment, since he worked only as a helper. His lack of specialized training

appeared evident, as he called some material “square things” and did not know stucco or

its equivalent Spanish word. 

Given these factors, the Court finds Mr. Hernandez is likely to prevail in proving 

his status as an employee for Master Stucco rather than an independent contractor.

Therefore, Master Stucco must “furnish, free of charge to the employee, such medical and 

surgical treatment . . . made reasonably necessary by accident[.]” Tenn. Code Ann. § 50-

6-204(a)(1)(A). 

Mr. Hernandez fractured his left shoulder, an injury that required medical treatment, 

while working for Master Stucco. Therefore, Master Stucco would likely be required to

pay for his past medical treatment for this work injury at a final hearing. See Ducros v. 

Metro Roofing and Metal Supply Co., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 62, at 

*10 (Oct. 17, 2017) (“[A]n employer who does not timely provide a panel of physicians 

risks being required to pay for treatment an injured worker receives on his own.”).

Further, an employee who becomes disabled from working due to a workplace 

injury that prevents him from working for a specific period is entitled to compensation. 

Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 

11, 2015). Dr. Elizondo wrote that Mr. Hernandez’s work injury would disable him from 
working for twelve weeks. Mr. Hernandez testified he returned to work earlier than 

expected, after about ten weeks. So, he is due temporary total disability benefits for that 

period. Tenn. Code Ann. § 50-6-207(1). 

However, even though Mr. Hernandez is likely to prove his entitlement to temporary 

disability and past medical expenses at a final hearing, the Court cannot award those 

benefits without admissible proof of his wages and medical bills. 

Therefore, the Court must deny his request for temporary disability benefits and past 

medical expenses at this time. If Mr. Hernandez files a motion with admissible proof 

supporting an award of those benefits, the Court will grant an award at that time. 

It is ORDERED as follows:

1. Master Stucco shall provide Mr. Hernandez with reasonable and necessary medical 

treatment for the work-related shoulder injury with Dr. Philip Elizondo as the 

authorized treating physician. 

2. Mr. Hernandez’s request for temporary disability benefits and past medical 

expenses is denied at this time.

3. This case is set for a status hearing on June 19, 2023, at 9:00 a.m. Central Time. 

The parties must call 615-741-2113 or 855-874-0474.

4. Unless interlocutory appeal of this Expedited Hearing Order is filed, compliance 

with this Order must occur by seven business days of entry of this Order as required 

by Tennessee Code Annotated section 50-6-239(d)(3). The Insurer or Self-Insured 

Employer must submit confirmation of compliance by email to 

WCCompliance.Program@tn.gov by the compliance deadline. Failure to do so may 

result in a penalty assessment for non-compliance. For compliance questions, 

please contact the Workers’ Compensation Compliance Unit by email at 

WCCompliance.Program@tn.gov.

ENTERED April 6, 2023.

______________________________________

Joshua Davis Baker, Judge

Court of Workers’ Compensation Claims
Exhibits

1. Medical Records

2. Rule 72 Declaration of Andres Hernandez

3. Master Stucco Payment and Lien Releases, collective exhibit

Technical Record

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Motion to Continue 

5. Order Granting Motion to Continue

6. Motion for Sanctions

7. Order Granting Motion for Sanctions

8. Order Setting Expedited Hearing

9. Employer’s Prehearing Statement 

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on April 6, 2023.

Name Certified 

Mail

Fax Email Service sent to:

Andres Hernandez,

Employee

X Andres.hernandez.hernandez1973@gma

il.com

Ritchie Pigue,

Employer’s Attorney

X rpigue@tpmblaw.com

mwatson@tpmblaw.com

dsmith@tpmblaw.com

___________________________________

Penny Shrum, Court Clerk

Court of Workers’ Compensation Claims

wc.courtclerk@tn.gov
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 

NOTICE OF APPEAL 

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/ 

wc.courtclerk@tn.gov | 1-800-332-2667 

Docket No.: ________________________

State File No.: ______________________ 

Date of Injury: _____________________ 

___________________________________________________________________________ 

Employee

v.

___________________________________________________________________________ 

Employer

Notice is given that ____________________________________________________________________ 

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the 

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________. 

Statement of the Issues on Appeal 

Provide a short and plain statement of the issues on appeal or basis for relief on appeal: 

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee 

Address: ________________________________________________________ Phone: ___________________ 

Email: __________________________________________________________ 

Attorney’s Name: ______________________________________________ BPR#: _______________________ 

Attorney’s Email: ______________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082 

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________ 

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee 

Appellee’s Address: ______________________________________________ Phone: ____________________ 

Email: _________________________________________________________ 

Attorney’s Name: _____________________________________________ BPR#: ________________________ 

Attorney’s Email: _____________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE 

I, _____________________________________________________________, certify that I have forwarded a 

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described 

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this 

case on this the __________ day of ___________________________________, 20 ____. 

 ______________________________________________ 

[Signature of appellant or attorney for appellant]