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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT JACKSON

JOE SHELDON, ) Docket No. 2019-07-0408

Claimant, )

)

) State File No. 6965-2018

v. )

JASON USERY CONSTRUCTION, )

Respondent. ) Judge Amber E. Luttrell

EXPEDITED HEARING ORDER 

The Court held an Expedited Hearing on December 6, 2019, on Mr. Sheldon’s 

request for medical and temporary disability benefits. The central legal issue is whether 

an employee-employer relationship existed between Mr. Sheldon and Jason Usery 

Construction at the time of the injury. For the reasons below, the Court holds Mr. 

Sheldon did not establish he is likely to succeed in proving he was Usery’s employee. 

Thus, his request is denied.1

Claim History

Mr. Sheldon testified his work history consisted of truck driving and some 

carpentry. The day before his injury, Mr. Sheldon began work on a residential 

construction job installing roof decking. On the second day of work, July 25, 2017, Mr. 

Sheldon fell from the roof to the ground.

Jason Usery drove Mr. Sheldon to a nearby hospital, which later transferred him to 

Vanderbilt University Medical Center. Vanderbilt providers treated Mr. Sheldon 

conservatively for lumbar and sacral fractures, and Dr. Douglas Weikert, an orthopedist,

performed surgery for bilateral wrist fractures. Mr. Sheldon underwent extensive 

treatment for his right wrist due to two failed fusion surgeries. Mr. Sheldon later 

underwent a third and final surgery in 2019. As a result of the injury, Mr. Sheldon

 1 Jason Usery Construction also argued that Mr. Sheldon’s claim is time-barred, but based on the holding, 

the Court need not address this defense at this time.

FILED

Dec 30, 2019

08:45 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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testified he cannot use his right hand like he used to and can no longer drive a truck.

Concerning the employment relationship, Mr. Sheldon alleged he was Jason Usery 

Construction’s employee on his injury date. He worked one full day and a few hours on 

the second day. He testified that Ricky Usery, Jason’s father, drove him to the jobsite the 

first day. Jason drove him to the jobsite the second day, provided some tools, and paid 

him approximately $250 per week after the injury “to help him get on his feet” until 

November 2017.2

On cross-examination, Mr. Sheldon testified he knew the Userys for years as 

family friends and neighbors. He conceded Jason never called him or asked him to work 

on the job, nor did he discuss wages or a time to report to work. They never discussed 

any rules of the job. He testified that he brought his own hammer and tape measure to the 

jobsite and used other tools from what he believed was Jason’s trailer.

Jason Usery testified he worked as a general contractor in the past under his 

company, Jason Usery Construction, but he retired his general contracting license in 

2015. He then started a new business, Jase Enterprises, working as a construction/project 

manager. He has no employees and is personally registered on the State of Tennessee 

Exemption Registry. He explained he works as a liaison between homeowners and 

workers on home design and budgeting.

Jason further testified that the home where Mr. Sheldon’s injury occurred

belonged to the Beecham family. The Beechams served as their own general contractor 

and hired workers to perform the job. Initially, he discussed working for the Beechams as 

a project manager under Jase Enterprises LLC in 2017; however, they could not agree on

compensation, so Jason stated he worked as just “another worker on the job” to be paid 

by the Beechams “per job.” He did not determine any other worker’s pay and received no 

cut of the other workers’ pay. Mrs. Beecham paid him in cash. The Beechams provided 

the supplies, and most workers used some of their own tools. 

Although he was not the project manager, Jason knew the workers on the job 

except for one. None worked for him, Jason Usery Construction, or Jase Enterprises. 

Jason testified he did not ask Mr. Sheldon to work on the Beecham job or know he would 

be working there. His father told him that Mr. Sheldon called him and stated he needed to 

work, so he brought him to the jobsite the first day. Jason drove Mr. Sheldon to the 

jobsite the second day because his father was unavailable.

Concerning the accident, Jason testified he saw Mr. Sheldon fall and took him to 

the hospital. Two weeks after the accident, Mr. Sheldon asked him to “help him out” 

 2 Mr. Sheldon could not recall the exact amount Usery paid him and gave inconsistent figures during his 

testimony.
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financially, and Jason said he would try. He testified he has known Mr. Sheldon for 

fifteen to twenty years and wanted to help him but did not feel legally obligated to do so.

He stopped helping Mr. Sheldon in November 2017.

Jason’s wife, Suzanne Usery, testified that she was not involved in Jason Usery 

Construction. She knows Mr. Sheldon from their neighborhood and knew that he used to 

work for Jason over nine years ago. She stated that he was not Jason’s employee in 2017. 

Ms. Usery testified consistently with her husband regarding the money they gave Mr. 

Sheldon following his injury to help his family. She testified they were friends and 

needed help.

Ricky Usery testified he is a retired residential construction worker. He never had 

any ownership interest in Jason’s businesses. He testified he was Mr. Sheldon’s neighbor 

and friend for twenty years and loaned him money, trailers, and materials “numerous 

times” before the injury. 

Ricky also worked on the Beecham house and asked Mr. Sheldon if he wanted to 

work on the project. At the time, Mr. Sheldon was living in a rental home he was 

repairing, and Ricky supplied him with materials to work on the rental. Ricky stated Mr. 

Sheldon worked on the Beecham project to pay him back for the materials and just to 

“get out of his house.” He testified that he and Mr. Sheldon never discussed wages.

Regarding tools and supplies, Ricky testified that some of the tools on the jobsite were 

his, some were Jason’s, and other workers brought their own. The Beechams provided the 

supplies.

Mr. Sheldon filed a Petition for Benefit Determination, and the Bureau initiated an 

investigation of Jason Usery d/b/a Jason Usery Construction, Jason Usery Construction, 

and Jase Enterprises. A compliance specialist completed an Expedited Request for 

Investigation Report. The report indicated he only interviewed Mr. Sheldon.

According to the report, Mr. Sheldon told the specialist he was hired to work for 

Jason Usery on the job for $100 per day or $500 per week, which he “expected would 

probably be paid in cash.” He stated Jason directed his work, provided the large tools, 

and picked him up for work. He believed Jason had the right to terminate him and stated 

they did not discuss him working for other entities. Lastly, Mr. Sheldon indicated Jason 

paid him $300 per week after the injury.

Findings of Fact and Conclusions of Law

At an Expedited Hearing, Mr. Sheldon must present sufficient evidence that he is 

likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing, 

2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
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Motion to Dismiss

At the conclusion of Mr. Sheldon’s proof, Jason Usery Construction moved for 

involuntary dismissal on statute-of-limitations grounds under Tennessee Rule of Civil 

Procedure 41.02(2), which provides:

After the plaintiff in an action tried by the court without a jury has 

completed the presentation of plaintiff’s evidence, the defendant, without 

waiving the right to offer evidence in the event the motion is not granted, 

may move for dismissal on the ground that upon the facts and the law the 

plaintiff has shown no right to relief.

Tennessee Courts have held that, “[W]hen faced with a Tenn. R. Civ. P. 41.02(2) 

motion, the [trial] court weighs the evidence just as it would after all the parties had 

concluded their cases and may dismiss the plaintiff’s claims if the plaintiff has failed to 

make out a prima facie case by a preponderance of the evidence.” Thompson v Adcox, 63 

S.W.3d 783, 791 (Tenn. Ct. App. 2001).

At this interlocutory stage, Mr. Sheldon need not prove all elements of his case by 

a preponderance of the evidence. Instead, he must come forward with sufficient evidence 

to show that he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-

239(d)(1) (2019). Thus, a motion to dismiss is not appropriate at an Expedited Hearing, 

an interlocutory proceeding.

Application of Law to Facts

To determine whether Mr. Sheldon is entitled to the requested relief, this Court 

must first address whether an employee-employer relationship existed between him and 

Jason Usery. The Workers’ Compensation Law requires consideration of the following 

factors to determine whether an individual is an employee:

(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.
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Tenn. Code Ann. § 50-6-102(13)(D)(i). 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. Smiley v. Four Seasons Coach Leasing, Inc., 2016 

TN Wrk. Comp. App. Bd. LEXIS 28, at *10-11 (July 15, 2016).

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

Sheldon presented sufficient evidence to prove he is likely to succeed in establishing he 

was Jason Usery/Jason Usery Construction’s employee on his injury date.

The Court first finds the proof does not establish Jason Usery Construction was 

still in business on Mr. Sheldon’s injury date. Jason surrendered his general contracting 

license in 2015 and no longer worked under Jason Usery Construction. In 2017, Jason 

operated Jase Enterprises, but on Mr. Sheldon’s injury date he worked as a laborer for the 

Beechams.

With regard to the right to conduct the work, Mr. Sheldon offered no testimony to 

prove or even suggest that Jason controlled the conduct of the work. The uncontroverted 

proof indicated Jason did not ask him to work on the Beecham project and did not know 

he was going to work on the project until his father told him. It was undisputed that Jason 

was not present at the jobsite when Mr. Sheldon arrived the first day and only gave him a 

ride to the jobsite the second day because of his father’s unavailability. This factor fails to 

support an employer-employee relationship.

Concerning payment, Mr. Sheldon told the compliance specialist that Jason agreed 

to pay him $100 per day or $500 per week for his work; however, he testified at the 

hearing that he never discussed payment with Jason or anyone. Regarding the money 

Jason paid him after the injury, the uncontroverted testimony was that Mr. Sheldon asked 

Jason to “help him out” following his accident, and Jason did so because he considered 

him a friend. This was consistent with Ms. Usery’s testimony that they helped Mr. 

Sheldon financially by loaning him money before and after the accident. This factor fails 

to support an employer-employee relationship.

With respect to tools and equipment, the proof indicated that the workers provided 

some of their own tools and used some of Jason’s or Ricky’s tools. The Beechams 

furnished the supplies. This factor fails to support an employer-employee relationship.

Regarding the scheduling of work hours, neither party introduced proof on this 

factor. Mr. Sheldon testified the Userys set the time because Ricky and Jason told him 

what time they would pick him up. This factor fails to support an employer-employee 

relationship.

As for the remaining factors, the Court finds little to no proof presented at the 
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hearing regarding these factors to support an employer-employee relationship. 

Therefore, the Court holds Mr. Sheldon failed to present sufficient evidence of an 

employee/employer relationship with Jason Usery Construction at this interlocutory stage 

to prove he is likely to prevail at a hearing on the merits. Accordingly, Mr. Sheldon’s

claim against Jason Usery Construction for the requested medical and temporary 

disability benefits is denied at this time.

ENTERED December 30, 2019.

APPENDIX 

Exhibits:

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1. Affidavit of Joe Sheldon

2. Expedited Request for Investigation Report

3. Henderson County Community Hospital records

4. Vanderbilt University Medical Center records

5. Deposition of Joe Sheldon- (Penalty case)

6. X-rays

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Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

 3 Jason Usery Construction introduced a Bureau of Workers’ Compensation Contested Case Hearing 

“Order Modifying Penalty Assessment” into evidence to show this Court the Administrative Law Judge’s 

findings in the penalty case. Upon consideration, the Court declines to admit the document into evidence.

4 Mr. Sheldon introduced black and white x-ray photos of his injuries into evidence. Jason Usery 

Construction objected to admissibility under Tennessee Compilation Rules and Regulations 0800-02-21-

.16(b) because the x-rays were not signed by a physician. The Court took the objection under advisement,

and upon review overrules the objection. The Court finds the photos provided Mr. Sheldon’s name, date 

of birth, and date of service. The photos also indicated that Dr. Weikert ordered them. The Court finds 

there is nowhere for a physician to sign an x-ray photo, and the information provided is sufficient for the 

Court to determine its admissibility at this stage as a self-authenticating document.
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4. Motion to Dismiss Request for Expedited Hearing and Motion to Continue 

Expedited Hearing

5. Motion to Add Defense of Statute of Limitations

6. Usery’s Position Statement for Expedited Hearing

7. Usery’s Witness and Exhibit List

8. Usery’s Motion in Limine to Exclude Medical Records from Expedited Hearing

9. Order Denying Employer’s Motion to Dismiss and Motion to Continue Expedited 

Hearing

10. Order Granting Motion to Add Defense of Statute of Limitations

11. Order on Employer’s Motion in Limine to Exclude Medical Records from 

Expedited Hearing

12. Motion to Add Defense of Intoxication or Illegal Drug Use-filed December 
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CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on December 30, 2019.

Name USPS Email Service sent to:

Joe Sheldon, Employee X X c.m.sheldon89@gmail.com

2849 Pollock Rd., Huron, TN 38345

Hailey David,

Employer’s Attorney

X davidh@waldrophall.com

smithj@waldrophall.com

LaShawn Pender,

Program Coordinator

X lashawn.pender@tn.gov

Compliance Unit X amanda.terry@tn.gov

_____________________________________

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims