1 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 , 201 9

, 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. S he ldon began work on a residential construction job installing roof decking. On the second d ay of work

, July 25, 2017

, Mr.

Sheldon fell from the roof to the ground.

Jason Usery drove Mr. Sheldon to a nearby h ospital

, wh ich later transferred him to Vanderbilt University Medical Center. Vanderbilt providers treated Mr. Sheldon

conservativel y for lumbar and sacral fracture s , and Dr. Douglas Weikert, an o rthopedist

, 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 an d 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 b ased on the holding,

the Court need not address th is defense at this time. 

### FILED Dec 30, 2019 08:45 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2 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 approxima tely $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 Usery s for years as family friends and neighbors . He concede d Jason never called him or asked him to w ork

on t he job

, n or 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

E xemption R egistry. 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 occur r ed belonged to the B eecham family . The Beechams served as their own general contractor and hired workers to perform the job. Initially, he discussed working for the Beecham s as

a project manager under Jase Enterprises L LC 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. Beec ham paid him in cash

. T he Beechams provided the supplies

, and most workers used some of their own tools.

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

exc ept 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 no t recall the exact amount Usery paid him and gave inconsistent figures during his testimony.3 financially

, and Jason said he would try. He testified he ha s known Mr. Sheldon for fifteen to twenty years and wanted to help him but did not feel legal ly obligated to do so. He stopped help ing Mr. Sheldon in November 2017.

Jason’s wife, Suzanne Usery, testified that sh e 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 he r 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 Jas on’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 wan ted 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 n ever 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 suppl ies

.

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 fo r Investigation Report

. The report indicated he only interview ed 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 pai d him $300 per week after the injury.

Findings of F act 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).4 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 mov e for dismissal on the ground that upon the facts and the law the plainti ff 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 interlocu tory 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) (20 1 9 ). 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

- em ployer relation ship existed between him and Jason Usery . The Workers’ Compensation Law requires consider ation 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 t ermination; (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.5 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 th e 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 i s 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 surrendere d 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 a s a laborer for the

Beecham s

.

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 unti l his father told him. It was un disputed 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 employe r

- employee relationship.

Concerning payment, Mr. Sheldon told the c ompliance s pecialist 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 t estified 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 presen ted at the6 hearing regarding the se 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

, 201 9

.

APPENDIX

Exhibits : 3

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 4

Technical R ecord:

1. Pet ition for Benefit Determination

2. Dispute Certification Notice

3. Request for Ex pedited 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. Sheldo n 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 too k 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 th at 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.7 4. Motion to Dismiss Request for Expedi ted 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 Hearin g 9. Order Denying Employer’s Motion to Dismiss and Motion to Continue Expedited

Hear ing

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 December8 C ERTIFICATE OF SERVICE

I certify that a copy of th is Order was sent as indicated on December 30 , 201 9

.

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