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### TENNESSEE BUREAUOFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATIONCLAIMS ATJACKSON RODRIGOAYALA GARCIA, Petitioner, 

### v. MARKHALE d/b/a MARK'S ROOFING (uninsured), Respondent. ) DocketNo.: 2016-07-0444 ) 

### ) StateFile No. 49908 0216 ) 

### ) JudgeAmberE. Luttrell ) )



### EXPEDITEDHEARING ORDER T inu:! 7:1S

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### DENYINGMEDICALAND TEMPORARYDISABILITYBENEFITS

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 (2015). Mr. 

### Garcia requests medical and temporary disability benefits for an alleged June 13, 2016 injury. The present focus ofthis case is whether an employee-employerrelationship 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 atrial onthe merits on this issue. Ifso, this Court mustthen decide whetherhe 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'srequest for medical andtemporary disability benefits is denied. HistoryofClaim 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. Garciatestified withthe assistance ofMs. Erin Daza Sigler, a registered Spanish court interpreter. (T.R. 6.) 1bricks, painting, roofing, and carpentry. Mr. Hale operatesMark'sRoofing. On June 13, 2016, while working on a residential roofing job, Mr. Garcia fell approximately fifteen feet from a ladder and injuredhis 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 "littleby little," although his handwas still injured. 4Mr. Garcia currently works inNebraska. Regarding the issue ofthe employmentrelationship, Mr. Garcia alleged he was an employee ofMark's Roofing on his date ofinjury. 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 roofingjobs for Mark's Roofing with Jorge and several others on occasion. According to Mr. Garcia, Mr. Hale would communicate directly with Jorge regarding a roofmgjob. Jorge provided the truck andtrailer, and Mr. Garcia supplied his own tools. Upon completion ofa roofingjob, Mr. Hale paid Jorge cash. Jorge used the cash to cover trailer expenses, pay material dumping expenses, and pay Mr. Garcia and the rest ofthe 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 paidhim directly. (Ex. 4.) He statedMr. Hale always paidJorge upon the completion ofa job and Jorge always paid the crew and took care of the expenses. Mr. Garcia also testified that between 2013 and 2016, he performedjobs for other contractors as well. Lastly, Mr. Garcia stated he did not consider himself Jorge's employee and did not considerJorge a subcontractor ofMr. Hale. Jorge Ayala Garciatestified, by affidavit, that on June 13, 2016, he and his brother were both employed by Mark's Roofing. 5 He stated, "During the course ofour work day, my brother, Rodrigo Ayala Garcia, fell15 feet offa roof, and injured my [sic] shoulder. I immediately took him to Jackson-Madison County General Hospital Emergency Room and notified ourboss, MarkHale."
In contrast to Mr. Garcia's allegation and Jorge's affidavit, Mr. Hale adamantly

2To 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 proofthat 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. 2disputed 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 ofa roofingjob, thatJorge providedhis owntruck andtrailer, and thatthe workers onJorge's crewprovidedtheir owntools 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 providedjobs to several differentwork crews. Heprovided approximately one ortwo roofingjobsto Jorge permonth. Eachjobwouldtake approximately one day to complete. He and Jorge agreed to a set price for the roofingjob based roughly on the square footage ofthe house and roof. Mr. Hale testifiedhe had no control overthe workers Jorge wouldbringto help him on ajob. He paidJorge after he finished thejob, and Jorge paid the workers on his team. Mr. Hale stated he had no idea how much Jorge paid himselforthe workers on his team. Lastly, Mr. Haletestifiedhe sometimespaidJorge in cash and sometimespaidhim with a check. Mr. Hale admitted he did nothave workers' compensation insurance in June 2016. He testified he usually "made sure" subcontractors had workers' compensation insurance, buthehadnot askedJorge.
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 ofFact and Conclusions ofLaw 

### Standardapplied The following legal principles govern this case. In general, Mr. Garcia bears the burden ofproofon all prima facie elements ofhis 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 notprove every element ofhis claimby a preponderance ofthe 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 sufficientevidence from whichthis Courtmight determine he is likely to prevail at a hearing on the merits. 

### !d.; Tenn. Code Ann. 

### § 50-6-239(d)(l) (2015).
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 ofa 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" ofthe 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 orderto determine whether an individual is an "employee," orwhether an individual is a "subcontractor" or an "independent contractor," the following factors shall be considered: (i) Therightto control the conduct ofthe work; (ii) Theright oftermination; (iii) The method ofpayment; (iv) The freedom to select andhire helpers; (v) The furnishing oftools and equipment; (vi) Self-scheduling ofworking hours; and (vii) The freedom to offer services to otherentities

. Tenn. CodeAnn.§ 50-6-102(11)(D) (2015). These factors are not absolutes that preclude examination of each work relationship as awhole and are no more than a means ofanalysis. 

### 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 ofthe right to control, the relevant inquiry being whether the right existed, notwhether 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 oftermination. 

### 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], 'thepower ofa party to a work contract to terminate the relationship at will is contrary to the full control ofwork 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 toprevail in establishinghe was an employee ofMarkHale. With regard to the right to control the conduct ofthe work, Mr. Garcia offered no 4testimony to prove, or even suggest, that Mr. Hale controlled the conduct ofthe 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 proofat the hearing onthis factor fails to support an employer-employeerelationship. There was likewise no proof offered at the Expedited Hearing that Mr. Hale retained the right oftermination over Mr. Garcia. The only proofrelating 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 ifMr. Hale did not control whom Jorge hired to perform ajob, he also did not terminate anyone Jorge secured for the work crew. Thus, the "right oftermination" factor fails to support an employer-employee relationship. With regard to the method ofpayment, the testimony at the Expedited Hearing was undisputed that Mr. Hale never paid Mr. Garcia directly for the work. Mr. Garcia was paidby his brother, Jorge, in cash, uponthe completion ofajob. Mr. HalepaidJorge a set amount bythejob and not by the hour. Mr. Hale had no control overhow 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 thathe never paid Mr. Garcia directly. The Court finds the "method ofpayment" factor fails to support an employer-employeerelationship. As for the freedom to select and hire helpers, it was undisputed that Mr. Hale did not select orhire helpers for Jorge, including Mr. Garcia. The "freedomto select and hire helpers" factor fails to support an employer-employeerelationship. 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 owntools 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 ifMark's Roofing ever told him when to be at ajob. 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 ofday he started work instead ofwhether Mr. Hale was the one who told him when to start work. The Court finds theproofonthis factor insufficientto support an employer-employeerelationship.
5Finally, with respect to the freedom to offer services to other entities, both parties agreedthatMr. Garciawas free to offerhis services to othercompanies and did so during the time he performed jobs for Mark's Roofing between 2013 and 2016. Thus, the "freedomto 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 ofMark Hale. Having found Mr. Garcia was not an employee ofMark Hale at the time ofhis injury, the only other basis upon which Mr. Garcia might prevail on his claim is ifhe 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 subcontractortothe same extent as the immediate employer. Section 113(c)provides that "everyclaimfor compensationunderthis section shallbe inthefirst instancepresentedto and instituted againstthe 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 proofbefore 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 underTennessee Code Annotated section 50-6-113. Therefore, as a matter oflaw, this Court holds Mr. Garcia failed to come forward with sufficient evidence from which this Court might conclude thathe is likely to prevail at a hearing on the merits. Accordingly, his request for medical and temporary disability benefits is denied. 

### ITIS, 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 setfor a Scheduling Hearing on January 9, 2017, at 10:00 a.m. 6Central Time. ENTERED this the 13th day ofD

Ju CourtofWorkers' 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 ofthe issues without yourfurther 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. Completethe enclosed form entitled: "ExpeditedHearingNotice ofAppeal." 2. File the completed form with the Court Clerk within seven business days ofthe date the Workers' Compensation Judge enteredthe Expedited Hearing Order. 3. Serve a copy ofthe ExpeditedHearingNotice ofAppeal upon the opposingparty

. 4. The appealing party is responsible for payment ofa 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 ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal or must be filed within ten calendar days thereafter. The Appeals Board
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### will consider the Affidavit ofIndigency 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 ofhaving 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 ofAppeal. Alternatively, the parties may file ajoint statement of the evidence within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. 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 submittedto the Clerk ofthe Appeals Board. 6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file suchposition statement withthe Court Clerk within five business days ofthe expiration ofthe 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 ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, or other authority.

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### APPENDIX Exhibits: 1. Affidavit ofRodrigo Ayala Garcia 2. Affidavit ofJorge Ayala Garcia 3. Medicalrecords ofJackson-Madison County General Hospital 4. Expedited Request for Investigation Report Technicalrecord: 6 

### 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for ExpeditedHearing 4. OrderDenyingFile ReviewExpeditedHearing 5. Notice ofExpeditedHearing 6

. Certification ofRegistered Spanish Court Interpreter, Erin Daza Sigler CERTIFICATE OFSERVICE I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 13th day ofDecember, 2016.
Name Certified First Via Service sentto: Mail Class Email Mail X 

### James.krenislaw@outlook.com ee Leslie.krenislaw outlook.com X X 

### 38 OldHickory Cove, B-13S Jackson, TN 38305

rum, ClerkofCourt Workers' Compensation Claims

6 The Court did not consi der 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