FILED 

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TN COURTOF 

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Cl.:\ll.lS 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT JACKSON 

RODRIGO AYALA GARCIA, 

Petitioner, 

v. 

MARK HALE d/b/a MARK'S 

ROOFING (uninsured), 

Respondent. 

) Docket No.: 2016-07-0444 

) 

) State File No. 49908 0216 

) 

) Judge Amber E. Luttrell 

) 

) 

EXPEDITED HEARING ORDER 

Tinu:! 7:1S.tUl 

DENYING MEDICAL AND TEMPORARY DISABILITY BENEFITS 

This matter came before the undersigned Workers' Compensation Judge on 

November 16, 2016, upon the Request for Expedited Hearing filed by the Petitioner, 

Rodrigo Ayala Garcia, pursuant to Tennessee Code Annotated section 50-6-239 (20 15). 

Mr. Garcia requests medical and temporary disability benefits for an alleged June 13, 

2016 injury. The present focus of this case is whether an employee-employer relationship 

existed between Mr. Garcia and the Respondent, Mark Hale, doing business as Mark's 

Roofing. The central legal issue is whether Mr. Garcia can demonstrate a likelihood of 

success at a trial on the merits on this issue. If so, this Court must then decide whether he 

sustained an injury arising out primarily out of and in the course and scope of his 

employment, entitling him to medical and temporary disability benefits. For the reasons 

set forth below, the Court holds Mr. Garcia failed to demonstrate he is likely to succeed 

at a hearing on the merits in proving that he was Mr. Hale's employee. Accordingly, Mr. 

Garcia's request for medical and temporary disability benefits is denied. 

History of Claim 

The following facts were established at the Expedited Hearing. Mr. Garcia is 

thirty-one years of age and lives in Madison County, Tennessee. 1 He works in 

construction as a laborer. Specifically, Mr. Garcia testified to performing jobs laying 

1 Mr. Garcia testified with the assistance of Ms. Erin Daza Sigler, a registered Spanish court interpreter. (T.R. 6.) 

1 
bricks, painting, roofing, and carpentry. Mr. Hale operates Mark's Roofing. 

On June 13, 2016, while working on a residential roofing job, Mr. Garcia fell 

approximately fifteen feet from a ladder and injured his right shoulder. His brother, Jorge 

Ayala Garcia, also worked on this roofing job and immediately took Mr. Garcia to 

Jackson-Madison County General Hospital, where he was diagnosed with an anterior 

inferior dislocation of the right humeral head. (Ex. 3. Y The attending physician 

discharged Mr. Garcia with a prescription for pain medication and recommended that he 

follow-up with Dr. Adam Smith, an orthopedist, within five to seven days. !d. 3 Mr. 

Garcia testified he was unable to work for over a month following the injury. Later, he 

started working "little by little," although his hand was still injured. 4 Mr. Garcia currently 

works in Nebraska. 

Regarding the issue of the employment relationship, Mr. Garcia alleged he was an 

employee of Mark's Roofing on his date of injury. He testified his brother, Jorge Ayala 

Garcia, performed work for Mr. Hale and informed him there was work available. 

Beginning in 2013, Mr. Garcia performed roofing jobs for Mark's Roofing with Jorge 

and several others on occasion. According to Mr. Garcia, Mr. Hale would communicate 

directly with Jorge regarding a roofmg job. Jorge provided the truck and trailer, and Mr. 

Garcia supplied his own tools. Upon completion of a roofing job, Mr. Hale paid Jorge 

cash. Jorge used the cash to cover trailer expenses, pay material dumping expenses, and 

pay Mr. Garcia and the rest of the workers. Contrary to Mr. Garcia's previous statement 

to Ben Edwards, a Bureau Compliance Specialist, that Mr. Hale paid him directly on a 

daily basis, Mr. Garcia testified repeatedly at the Expedited Hearing that Mr. Hale never 

paid him directly. (Ex. 4.) He stated Mr. Hale always paid Jorge upon the completion of a 

job and Jorge always paid the crew and took care of the expenses. Mr. Garcia also 

testified that between 2013 and 2016, he performed jobs for other contractors as well. 

Lastly, Mr. Garcia stated he did not consider himself Jorge's employee and did not 

consider Jorge a subcontractor of Mr. Hale. 

Jorge Ayala Garcia testified, by affidavit, that on June 13, 2016, he and his brother 

were both employed by Mark's Roofing. 5 He stated, "During the course of our work day, 

my brother, Rodrigo Ayala Garcia, fell15 feet off a roof, and injured my [sic] shoulder. I 

immediately took him to Jackson-Madison County General Hospital Emergency Room 

and notified our boss, Mark Hale." 

In contrast to Mr. Garcia's allegation and Jorge's affidavit, Mr. Hale adamantly 

2 To avoid confusion, the Court will refer to Petitioner's brother, Jorge Ayala Garcia, as "Jorge" in this Order. 3 The Court notes the only medical record admitted into evidence at the hearing was the emergency room record 

from Jackson-Madison County General Hospital. There was no further proof that Mr. Garcia sought any additional 

medical treatment following the ER visit. 

~ The Court notes Mr. Garcia did not testify regarding any specific injury to his hand from the fall. He only 

referenced his right shoulder. 5 Jorge did not appear to testify live at the Expedited Hearing. 

2 
disputed that he was Mr. Garcia's employer. Mr. Hale testified that he considered Jorge a 

subcontractor. Mr. Hale and Mr. Garcia testified consistently that Mr. Hale only paid 

Jorge upon completion of a roofing job, that Jorge provided his own truck and trailer, and 

that the workers on Jorge's crew provided their own tools and equipment. 

Mr. Hale testified he started Mark's Roofing, a sole-proprietorship, in 2010 to sell 

roofs. He always hired subcontractors to perform the work. Mr. Hale provided jobs to 

several different work crews. He provided approximately one or two roofing jobs to Jorge 

per month. Each job would take approximately one day to complete. He and Jorge agreed 

to a set price for the roofing job based roughly on the square footage of the house and 

roof. Mr. Hale testified he had no control over the workers Jorge would bring to help him 

on a job. He paid Jorge after he finished the job, and Jorge paid the workers on his team. 

Mr. Hale stated he had no idea how much Jorge paid himself or the workers on his team. 

Lastly, Mr. Hale testified he sometimes paid Jorge in cash and sometimes paid him with a 

check. Mr. Hale admitted he did not have workers' compensation insurance in June 2016. 

He testified he usually "made sure" subcontractors had workers' compensation insurance, 

but he had not asked Jorge. 

Mr. Garcia filed a Petition for Benefit Determination (PBD) seeking medical and 

temporary disability benefits. The parties did not resolve the disputed issues through 

mediation, and the Mediating Specialist filed a Dispute Certification Notice. This hearing 

followed. 

Findings of Fact and Conclusions of Law 

Standard applied 

The following legal principles govern this case. In general, Mr. Garcia bears the 

burden of proof on all prima facie elements of his workers' compensation claim. Tenn. 

Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v. Car/ex Glass Co., No. 2015-

01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers' Comp. App. 

Bd. Sept. 29, 2015). However, Mr. Garcia need not prove every element of his claim by a 

preponderance of the evidence at this Expedited Hearing stage in order to obtain relief. 

McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. 

App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Rather, 

he must come forward with sufficient evidence from which this Court might determine he 

is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-239(d)(l) 

(20 15). 

In the present case, this Court must first address whether an employee-employer 

relationship existed between Mr. Garcia and Mr. Hale. To recover workers' 

compensation benefits, the claimant must be an employee and not an independent 

contractor or a casual employee. Bargery v. Obion Grain Co., 785 S.W.2d 118, 121 

3 
(Tenn. 1990). Determining whether an individual is an employee or an independent 

contractor for workers' compensation purposes requires a specialized factual analysis. 

Masiers v. Arrow Transfer & Storage Co., 639 S.W.2d 654, 656-57 (Tenn. 1982) (citing 

Barnes v. Nat'! Mortg. Co., 581 S.W.2d 957 (Tenn. 1979)). No single aspect of a work 

relationship is conclusive in making this determination, and in deciding whether a worker 

is an employee or independent contractor, "the trier of fact must examine all relevant 

factors and circumstances" of the relationship. Boruffv. CNA Ins. Co., 795 S.W.2d 125, 

127 (Tenn. 1990). 

The Tennessee Workers' Compensation Act requires that, in a work relationship, 

in order to determine whether an individual is an "employee," or whether an individual is 

a "subcontractor" or an "independent contractor," the following factors shall be 

considered: 

(i) The right to control the conduct of the work; 

(ii) The right of termination; 

(iii) The method of payment; 

(iv) The freedom to select and hire helpers; 

(v) The furnishing of tools and equipment; 

(vi) Self-scheduling of working hours; and 

(vii) The freedom to offer services to other entities. 

Tenn. Code Ann.§ 50-6-102(11)(D) (2015). 

These factors are not absolutes that preclude examination of each work 

relationship as a whole and are no more than a means of analysis. Masiers, 639 S.W.2d at 

656 (citing Jackson Sawmill v. West, 619 S.W.2d 105 (Tenn. 1981)). While no single 

factor is determinative, the Tennessee Supreme Court "has repeatedly emphasized the 

importance of the right to control, the relevant inquiry being whether the right existed, 

not whether it was exercised." Galloway v. Memphis Drum Service, 822 S.W.2d 584, 586 

(Tenn. 1991). Once it is established that an employment relationship exists, "the burden 

is on the employer to prove the worker was an independent contractor rather than an 

employee." !d. Another significant factor is the right of termination. Masiers, 639 S.W.2d 

at 656 (citing Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn. 1976)). "As 

noted in Masiers [citation omitted], 'the power of a party to a work contract to terminate 

the relationship at will is contrary to the full control of work activities usually enjoyed by 

an independent contractor."' Boruff, 795 S.W.2d at 127. 

Applying these principles to the facts of this case, the Court cannot find Mr. 

Garcia came forward with sufficient evidence from which this Court may conclude he is 

likely to prevail in establishing he was an employee of Mark Hale. 

With regard to the right to control the conduct of the work, Mr. Garcia offered no 

4 
testimony to prove, or even suggest, that Mr. Hale controlled the conduct of the work. 

The only testimony before the Court related to this factor came from Mr. Hale, who 

testified, without contradiction, that he agreed to pay Jorge a specific amount for a 

roofing job, and Jorge secured workers and performed the job with the workers' own 

tools, equipment, and transportation. The Court finds the only proof at the hearing on this 

factor fails to support an employer-employee relationship. 

There was likewise no proof offered at the Expedited Hearing that Mr. Hale 

retained the right of termination over Mr. Garcia. The only proof relating to this factor 

was Mr. Hale's testimony that he hired Jorge to perform a roofing job and he had no 

control over whom Jorge secured to help him perform the job. While neither party 

testified specifically regarding the right to terminate, the Court finds it reasonable to 

conclude that if Mr. Hale did not control whom Jorge hired to perform a job, he also did 

not terminate anyone Jorge secured for the work crew. Thus, the "right of termination" 

factor fails to support an employer-employee relationship. 

With regard to the method of payment, the testimony at the Expedited Hearing 

was undisputed that Mr. Hale never paid Mr. Garcia directly for the work. Mr. Garcia 

was paid by his brother, Jorge, in cash, upon the completion of a job. Mr. Hale paid Jorge 

a set amount by the job and not by the hour. Mr. Hale had no control over how much Mr. 

Garcia was paid for his work. While Mr. Garcia gave a conflicting statement to Ben 

Edwards, the Bureau's Compliance Specialist, regarding the method of payment, the 

Court does not find his statements to Mr. Edwards on that issue credible given his 

adamant testimony at the Expedited Hearing that Mr. Hale never paid him directly for 

any work. Further, the Court finds credible Mr. Hale's consistent testimony that he never 

paid Mr. Garcia directly. The Court finds the "method of payment" factor fails to support 

an employer-employee relationship. 

As for the freedom to select and hire helpers, it was undisputed that Mr. Hale did 

not select or hire helpers for Jorge, including Mr. Garcia. The "freedom to select and hire 

helpers" factor fails to support an employer-employee relationship. 

With respect to the furnishing of tools and equipment, the parties agreed that 

Mark's Roofing provided no tools or equipment to Mr. Garcia. Mr. Garcia provided his 

own tools and Jorge provided a truck and trailer. This factor fails to support an employeremployee relationship. 

Regarding the scheduling of work hours, Mr. Hale asked Mr. Garcia on crossexamination if Mark's Roofing ever told him when to be at a job. Mr. Garcia responded, 

"sometimes 7 or 6." There was no other testimony from the parties on this factor. The 

Court finds Mr. Garcia's response appeared to address what time of day he started work 

instead of whether Mr. Hale was the one who told him when to start work. The Court 

finds the proof on this factor insufficient to support an employer-employee relationship. 

5 
Finally, with respect to the freedom to offer services to other entities, both parties 

agreed that Mr. Garcia was free to offer his services to other companies and did so during 

the time he performed jobs for Mark's Roofing between 2013 and 2016. Thus, the 

"freedom to offer services to other entities" factor fails to support an employer-employee 

relationship. 

The Court finds every statutory criteria set forth in Tennessee Code Annotated 

section 50-6-102(10)(D) fail to support an employer-employee relationship. Accordingly, 

this Court concludes that Mr. Garcia failed to prove that he was an employee of Mark 

Hale. 

Having found Mr. Garcia was not an employee of Mark Hale at the time of his 

injury, the only other basis upon which Mr. Garcia might prevail on his claim is if he 

established Mark Hale were liable as a principal contractor under Tennessee Code 

Annotated section 50-6-113(a) (2015). The statute provides that a principal contractor is 

liable for compensation to any employee injured while in the employ of any 

subcontractor to the same extent as the immediate employer. Section 113( c) provides that 

"every claim for compensation under this section shall be in the first instance presented to 

and instituted against the immediate employer[.]" 

While Mr. Hale characterized Jorge as a subcontractor, Mr. Garcia did not allege 

Jorge was a subcontractor or his immediate employer. To the contrary, Mr. Garcia 

adamantly denied he was employed by his brother and only alleged he was employed by 

Mr. Hale. As Mr. Garcia did not even allege that Jorge was his employer, there is no 

proof before the Court that he first sought workers' compensation benefits from Jorge 

under Tennessee Code Annotated 50-6-113(c) and insufficient proof of an employeremployee relationship between Mr. Garcia and Jorge. Accordingly, there is insufficient 

proof before the Court at this time for the Court to conclude that Mark Hale is liable 

under Tennessee Code Annotated section 50-6-113. 

Therefore, as a matter of law, this Court holds Mr. Garcia failed to come forward 

with sufficient evidence from which this Court might conclude that he is likely to prevail 

at a hearing on the merits. Accordingly, his request for medical and temporary disability 

benefits is denied. 

IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Garcia's claim against Mark Hale doing business as Mark's Roofing for the 

requested medical benefits and temporary total disability benefits is denied at this 

time. 

2. This matter is set for a Scheduling Hearing on January 9, 2017, at 10:00 a.m. 

6 
Central Time. 

ENTERED this the 13th day of D 

Ju 

Court of Workers' Compensation Claims 

Scheduling Hearing: 

A Scheduling Hearing has been set with Judge Amber E. Luttrell, Court of 

Workers' Compensation Claims. You must call toll-free at 855-543-5039 to 

participate in the Hearing. 

Please Note: You must call in on the scheduled date/time to 

participate. Failure to call in may result in a determination of the issues without 

your further participation. 

Right to Appeal: 

Tennessee Law allows any party who disagrees with this Expedited Hearing Order 

to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of 

Appeal, you must: 

1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal." 

2. File the completed form with the Court Clerk within seven business days of the 

date the Workers' Compensation Judge entered the Expedited Hearing Order. 

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party. 

4. The appealing party is responsible for payment of a filing fee in the amount of 

$75.00. Within ten calendar days after the filing of a notice of appeal, payment 

must be received by check, money order, or credit card payment. Payments can be 

made in person at any Bureau office or by United States mail, hand-delivery, or 

other delivery service. In the alternative, the appealing party may file an Affidavit 

of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing 

fee. The Affidavit of Indigency may be filed contemporaneously with the Notice 

of Appeal or must be filed within ten calendar days thereafter. The Appeals Board 

7 
will consider the Affidavit of Indigency and issue an Order granting or denying 

the request for a waiver of the filing fee as soon thereafter as is 

practicable. Failure to timely pay the filing fee or file the Affidavit of 

lndigency in accordance with this section shall result in dismissal of the 

appeal. 

5. The parties, having the responsibility of ensuring a complete record on appeal, 

may request, from the Court Clerk, the audio recording of the hearing for the 

purpose of having a transcript prepared by a licensed court reporter and filing it 

with the Court Clerk within ten calendar days of the filing of the Expedited 

Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of 

the evidence within ten calendar days of the filing of the Expedited Hearing 

Notice of Appeal. The statement of the evidence must convey a complete and 

accurate account of what transpired in the Court of Workers' Compensation 

Claims and must be approved by the workers' compensation judge before the 

record is submitted to the Clerk of the Appeals Board. 

6. If the appellant elects to file a position statement in support of the interlocutory 

appeal, the appellant shall file such position statement with the Court Clerk within 

five business days of the expiration of the time to file a transcript or statement of 

the evidence, specifying the issues presented for review and including any 

argument in support thereof. A party opposing the appeal shall file a response, if 

any, with the Court Clerk within five business days of the filing of the appellant's 

position statement. All position statements pertaining to an appeal of an 

interlocutory order should include: ( 1) a statement summarizing the facts of the 

case from the evidence admitted during the expedited hearing; (2) a statement 

summarizing the disposition of the case as a result of the expedited hearing; (3) a 

statement of the issue(s) presented for review; and (4) an argument, citing 

appropriate statutes, case law, or other authority. 

8 
APPENDIX 

Exhibits: 

1. Affidavit of Rodrigo Ayala Garcia 

2. Affidavit of Jorge Ayala Garcia 

3. Medical records of Jackson-Madison County General Hospital 

4. Expedited Request for Investigation Report 

Technical record: 6 

1. Petition for Benefit Determination 

2. Dispute Certification Notice 

3. Request for Expedited Hearing 

4. Order Denying File Review Expedited Hearing 

5. Notice of Expedited Hearing 

6. Certification of Registered Spanish Court Interpreter, Erin Daza Sigler 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Expedited Hearing Order was 

sent to the following recipients by the following methods of service on this the 13th day 

of December, 2016. 

Name Certified First Via Service sent to: 

Mail Class Email 

Mail 

X J ames.krenislaw@outlook.com 

ee Leslie.krenislaw outlook. com 

X X 38 Old Hickory Cove, B-13S 

Jackson, TN 38305 

rum, Clerk of Court 

Workers' Compensation Claims 

6 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the 

Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as 

allegations unless established by the evidence. 

9