1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT COOKEVILLE

TRACY WRIGHT

, ) Docket No. 201 9

- 04

- 0 270 Employee, )

v. ) State File No. 66044

- 2020

JOSHUA COOPER

, d/b/a J&K IMPROVEMENTS, ) ) Judge Robert Durham

Uninsured Employer

. )

EXPEDITED HEARING ORDER GRANTING BENEFITS (Decision on the Record)

This case came before the Court for an expedited hearing. After the parties’ agreement to accept a decision on the record, the Court issued a Docketing Notice that required responses by March 4 . The issue s are whether Mr. Wright provided sufficient

evidence to establish a compensation rate for entitlement to temporary total disability

benefits and whether Mr. Cooper’s wife, Kylie Cooper, is a partner in J&K Improvements, and thus also liable to Mr. Wright . The Court holds t hat the evidence
supports an award of temporary disability at a compensation rate of $ 419.91 , but only from August 29 through October 8, 2020 . Further

, the proof does not establish Mrs. Cooper’s liability to Mr. Wright for workers’ compensation benefits.

History of Claim

Th e Court previously held an e xpedited h earing on January 19, 2021

, to determine

whether Mr. Cooper is obligated to provide Mr. Wright medical and tempora r y disability

benefits for a work

- related left

- foot fracture. The evidence presented at th at hearing

, as well as the Court’s findings

, are incorporated by reference.

During th at hearing, Mr. Cooper testified that as the sole proprietor of J&K Improvements

, Mrs. Cooper did not have any ownership. Mr. Wright did not object to this representation or provide any evidence to the contrary. Further, the Uninsured Employer I nvestigation Report did not identify Mrs. Cooper as Mr. Cooper’s partner in J&K Improvements. 

### FILED Mar 09, 2021 02:51 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2 As for temporary disability benefits, Mr. Wright provided medical evidence establishing his total disability from August 29 through October 8 ; that J&K paid him $16.00 an hour, which was paid at the end of each project ; and that he worked “almost every day.” However, he did not provide any evidence regarding the actual days he worked or the specific amounts J& K Improvements paid

.

After the January 19 hearing, t he Court h eld Mr. Wrigh t establish ed he is likely to

prove that he was Mr. Cooper ’s employee when he was injured on August 28, 2020 , thus making Mr. Cooper liable for benefits

. The Court also h eld that Mr. Wright i s likely to prove entitlement to payment of reasonable and necessary medical expenses causally

related to his fracture and entitlement to temporary total disability from August 29 through October 8. However, he did not provide sufficient evidence to determine his compensation rate. Finally, the Court found that Mr. Wright is eligible to receive

benefits from the Uninsured Employer’s Fund under Tennessee Code Annotated section

50

- 6

- 801

.

After receiving the Court’s order, Mr. Wright filed another Request for Expedited Hearing

. He attached a Tennessee Rules of Civil Procedure Rule 72 Statement in which

he asserted that when he was hired on May 18, 2020, he worked forty hours per week for

two weeks at $14.00 per hour , and a t the end of May, Mr. Cooper raised his pay to $16.00 per hou r. The only additional evidence that Mr. Wright provided as to his actual pay or the hours he worked while employed by Mr. Cooper was indirectly when he

calculated his “lost wages” from his injury through January based on a forty

- hour

workweek.

As for Mrs. Cooper

, Mr. Wright added her as a n employer at the top of the Request for Expedited Hearing and asserted in his Rule 72 Statement that Mr. Cooper hired him for “his [sic] and his wife’s business, J&K Improvements.” He went on to say

that “the Coopers” agreed to pay him $16.00 per hour, and he made multiple references to working for “the Coopers.”

Mr. Cooper did not provide any evidence in response to the request for expedited hearing

.

Findings of Fact and Conclusions of Law

Mr. Wright bears the burden of presenting sufficient evidence to show that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50

- 6

- 239(d)(1) (20 20 ); McCord v. Advantage Human Resourcing , 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7

- 8, 9 (Mar. 27, 2015 ).

Tennessee Code Annotated section 50

- 6

- 207(1)(a) sets out that temporary total disability benefits are based on two thirds of the injured employee’s average weekly3 wage. The Court finds th e undisputed evidence show s that Mr. Wright is likely to prove he worked forty hours per week during his employ ment with Mr. Cooper. He worked from May 18 through May 31 at $14.00 per hour and from June 1 until August 28 at $16.00 per hour. Based on this finding, the Court calculates Mr. Wright’s average weekly wage to be $629.86, and two

- thirds of this amount leads to a compensation rate of
$419.91.

However, to receive temporary total disability benefits

, Mr. Wright m ust also

show he is likely to prove: (1) a disability from working as the result of a compensable

i njury; (2) a causal connection between the injury and the inability to work; and (3) the duration of the period of disability. Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). While medical proof is not an “absolute prerequisite” to receiving temporary disability benefits, any award must be

consistent with the medical evidence. Austin v. Genlyte Thomas Grp

. , LLC

, No. M2009

- 01601

- WC

- R3

- WC, 2010 Tenn. LEXIS 652, at *10,11 ( Tenn. Workers’ Comp. Panel July 12, 2010).

Previously, the Court found Mr. Wright was entitled to temporary total disability

benefits from August 2 9 through October 8. While Mr. Wright alleged that he did not work from August 29 through February 2, 2021 , the C ourt holds that his allegation without medical proof is insufficient to show he is likely to prove at trial that his inability to work extended beyond October 8. Thus, the Court holds that Mr. Cooper must pay

temp orary total disability benefits from Augus t 29 through October 8, 2020

, at a compensation rate of $419.91 for a total of $2,459.47. Mr. Wright’s claim for additional temporary disability benefits is denied at this time.

Regarding Mr. Wright’s assertion that Mrs. Cooper was a partner in J&K Impro vements and thus was also his employer, the Court holds the scant evidence he provided is insufficient to overcome Mr. Cooper’s assertions to the Court and to the

Un insured Employer’s Fund investigator that he was the business’s sole proprietor. As a result, the Court holds at this time that Mrs. Cooper was not Mr. Wright’s employer.

IT IS, THERE FORE, ORDERED that :

1. Mr. Cooper shall pay Mr. Wright temporary total disability benefits in the amount of $2,459.47.

2. Mr. Wright is eligible to receive an award from the Uninsured Employer’s Fund

under Tennessee Code Annotated section 50

- 6

- 801 for the past temporary total disability benefits owed by Mr. Cooper based on the Court’s holding set out in its previous Expedited Hearing Order. Mr. Wright may request this award using the

attached form.4 3. Mr. Cooper remains obligated to pay Mr. Wright’s past and future expenses for the reasonable and necessary treatment of his work

- related injuries, and Mr. Wright remains eligible to receive reim bursement from the Uninsured Employer’s Fund for expenses from providers identified in the previous Expedited Hearing Order.

4. Mrs. Cooper retains no liability for Mr. Wright’s claim at this time.

5. This case is set for a Scheduling Hearing on April 15 , 20 21 , at 1:3 0 p .m. Central

Time

. The parties must call 615

- 253

- 0010 or toll

- free at 855

- 689

- 9049 to participate. Failure to call may result in a determination of the issues without your further participation.

6. Unless interlocutory appeal of the Expedited H earing Order is filed, compliance with this Order must occur no later than seven business days from the date of entry of this Order as required by Tennessee Code Annota ted section 50

- 6

- 239(d)(3) . The

Insurer or Self

- Insured Employer must submit confirmation of compliance with this Order to the Bureau by email to WCCompliance.Program@tn.gov no later than the seventh business day after entry of this Order. Failure to submit the necessary confirmation within the period of compliance may result in a penalty assessment for

non

- compliance. For questions regarding compliance, please contact the Workers’ Compensation Compliance Unit via email at WCCompliance.Program@tn.gov

.

ENTERED March 9

, 20 21

.

__________________________________ Robert V. Durham , Judge

Court of Workers ’ Compensation Claims

APPENDIX

Exhibits :

1. Request for Investigation Report

2. Dr. Simpson’s Report

3. Prescription receipts and medical bills

4. Additional prescription receipts and medical bills

5. J&K Improvements Commercial Liability Policy

6. Expedited Hearing Order dated January 29, 2021

7. Mr. Wright’s T.R.C.P. Rule 72 Statement

Technical Record :5 1. Petition for Benefit Determination

2. Expedited Request for Investigation 3. Dispute Certification Notice 4. Request for Expedited Hearing 5. Second Request for Expedited Hearing

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on March 9, 2021.

Name Certified

Mail Via

Fax Via

Email Service sent to:

Tracy Wright X X 123 Stone Avenue, Apt. 2 Crossville, TN 3855 wrightnormantracy@gmail.com

J oshua Cooper X X 150 Grandview Drive, Crossville, TN 38555 Jkimprovements20@gmail.com Uninsured Employers

Fund X Lashawn.pender@tn.gov

_____________________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov