FILED 

Jul~f 24,2017 

TN COURTOF 

1\ ORKIRS' COMHI!:. . ATION 

ClLAIMS 

Tim.e· 2 :29PM 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

Cody Bland, 

Employee, 

v. 

Mike Chitwood, 

Employer. 

AT NASHVILLE 

) Docket No. 2016-06-1686 

) 

) State File No. 68258-2016 

) 

) Judge Kenneth M. Switzer 

EXPEDITED HEARING ORDER GRANTING REQUESTED RELIEF 

This matter came before the undersigned Workers' Compensation Judge on July 

19, 2017, upon the Request for Expedited Hearing filed by Cody Bland. The central legal 

issues are whether Mr. Bland suffered an injury arising primarily out of and in the course 

and scope of his employment with Mike Chitwood and whether he worked as an 

employee or a subcontractor. A secondary issue is whether Mr. Bland qualifies for 

benefits from the Uninsured Employers Fund. 

The Court holds Mr. Bland came forward with sufficient evidence to establish 

that his injury arose primarily out of his employment with Mr. Chitwood and he worked 

as an employee rather than a subcontractor. Thus, he is entitled to workers' 

compensation benefits. However, the Court cannot find at this time that he satisfied the 

statutory factors for applying for benefits from the UEF on the present record, as he did 

not provide the Bureau timely notice. 

History of Claim 

Mr. Bland, a resident of Goodlettsville, Tennessee, began working for Mr. 

Chitwood in May 2016 as a laborer installing hardwood flooring. He worked full-time at 

the times and places that Mr. Chitwood set, earning an average weekly wage of $600 in 

cash. Mr. Chitwood provided the tools and materials. Mr. Bland's affidavit states that 

Mr. Chitwood was a subcontractor for McGrath Brothers Flooring. 1 

1 Mr. Bland introduced no additional evidence to substantiate the business/employment relationship 

between Mr. Chitwood and McGrath. By joint stipulation, this Court previously entered an order 

conditionally dismissing Mr. Bland's case as to McGrath Brothers Flooring and Rick McGrath. 
Mr. Bland testified that, on June 20, while using a table saw, the blade made 

contact with a knot in the wood, jerked and severely cut his left hand. He sought 

emergency treatment at Centennial Medical Center until the Air Evac Lifeteam flew him 

to Vanderbilt University Hospital. At Vanderbilt, Dr. Douglas Weikert surgically 

repaired the hand. Post-operatively, Mr. Bland saw Dr. Weikert and participated in 

occupational therapy. 

Dr. Weikert provided an affidavit regarding his treatment. (Ex. 2 at 1-3.) He 

stated that he excused Mr. Bland from work from June 21 through September 21 and 

afterward placed Mr. Bland on restricted duty. Dr. Weikert concluded the injury "arises 

primarily out of the employment, meaning that more than 50 percent of the injury is due 

to the employment, considering all causes." The affidavit additionally said Mr. Bland is 

in need of further orthopedic care. Mr. Bland confirmed in his testimony that he believes 

his hand is only about "eighty percent" healed. 

Mr. Bland's treatment resulted in medical bills totaling $78,904.31. The sums 

included: 1) Air Evac, $33,287.47; 2) Centennial Medical Center, $5,087.93; 3) 

Peakview Emergency Physicians, $1,776.00; 4) Radiology Alliance, P.C., $30.00; 5) 

Vanderbilt Medical Center, $38,639.00; and 7) Publix Pharmacy, $83.91. !d. at 74-90. 

To obtain relief from these bills and other assistance, Mr. Bland filed a Petition for 

Benefit Determination on September 2. Upon receipt of the PBD, the Bureau initiated an 

investigation with the UEF to determine whether Mr. Chitwood carried workers' 

compensation insurance. A UEF investigator completed an Expedited Request for 

Investigation (Ex. 3), concluding there was no workers' compensation policy on the date 

of injury. Per the report, Mr. Chitwood said he was on the Exemption Registry and did 

not carry workers' compensation. The investigator asked if he had a copy of Mr. Bland's 

certificate of insurance or proof of exemption, and Mr. Chitwood replied that he did not. 

The report noted Mr. Chitwood "finally agreed he should have made sure Mr. Bland was 

compliant before hiring him." The investigator additionally made a "seven factors 

determination" as follows: 1) Mr. Chitwood was a subcontractor for McGrath Brothers 

and hired workers as needed; 2) Mr. Chitwood controlled the right to terminate; 3) Mr. 

Chitwood paid Mr. Bland as a "1099" worker in cash; 4) Mr. Chitwood controlled the 

selection and hiring of helpers; 5) Mr. Chitwood furnished the tools and equipment, and 

McGrath Brothers furnished the materials; 6) Mr. Chitwood set the hours of work; and, 7) 

Mr. Bland was not free to offer his services to other entities. !d. at 5-6. 

Throughout this case, Mr. Chitwood failed to participate. He did not appear at the 

Expedited Hearing despite receiving written notice via certified mail. Mr. Bland testified 

that Mr. Chitwood was present when he became injured; he witnessed Mr. Bland's 

bloodied, injured hand but not the accident. Afterward, he never offered to pay for Mr. 

Bland's medical care or lost wages, and he terminated him immediately following the 

2 
accident. After Dr. Weikert placed Mr. Bland on limited duty, Mr. Bland attempted to 

return to work for two employers, Kroger and Goodwill respectively, but was unable to 

perform the assigned job duties due to the restrictions. The first job, with Kroger, began 

on January 1, 2017. Mr. Bland successfully returned to work for MGM Industries. 

Findings of Fact and Conclusions of Law 

In order to grant the relief Mr. Bland seeks, the Court must apply the following 

legal principles. Mr. Bland bears the burden of proof on all prima facie elements of his 

claim. See Tenn. Code Ann. § 50-6-239(c)(6) (2016). At an expedited hearing, Mr. 

Bland has the burden to come forward with sufficient evidence from which this Court can 

determine 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). 

Compensability 

Applying these general principles to the issue of the compensability of Mr. 

Bland's claim, the Workers' Compensation Law defines an "injury" as '"an injury by 

accident ... arising primarily out of and in the course and scope of employment that 

causes ... the need for medical treatment." Tenn. Code Ann. § 50-6-102(14). Further, 

an injury is '"accidental" only if the injury is caused by a specific incident, or set of 

incidents, arising primarily out of and in the course and scope of employment. 

Here, Mr. Bland's undisputed testimony proves that, while working for Mr. 

Chitwood on June 21, he injured his left hand, resulting in the need for surgery and 

rehabilitation. The medical records support his account of how he became injured, and 

he presented as an honest and credible witness. Accordingly, the Court holds Mr. Bland 

sustained an accidental injury caused by a specific incident arising primarily out of and in 

the course and scope of his employment with Mr. Chitwood. 

With regard to Mr. Bland's employment status, Mr. Chitwood previously argued 

to the UEF investigator that Mr. Bland was a "subcontractor" or a '"1 099 worker" rather 

than an employee for purposes of the Workers' Compensation Law. To make this 

determination, the statute provides that the Court shall consider: 

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

(b) The right of termination; 

(c) The method of payment; 

(d) The freedom to select and hire helpers; 

(e) The furnishing of tools and equipment; 

(f) Self-scheduling of working hours; and 

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

3 
Tenn. Code Ann. § 50-6-102(12)(D)(i). Applying these factors to Mr. Bland's 

uncontroverted testimony and the UEF investigator's findings, the Court holds he was 

Mr. Chitwood's employee rather than a subcontractor. Mr. Bland performed work at an 

hourly wage for a forty-hour work week, which precluded other employment. Mr. 

Chitwood provided the tools, and he set the work hours. It appears Mr. Chitwood 

controlled all aspects of the worksite. The Court further holds, based upon the UEF 

investigator's findings, that Mr. Chitwood is a construction services provider as generally 

defined in Tennessee Code Annotated section 50-6-901(5) and that he failed to secure 

workers' compensation insurance or to determine that Mr. Bland is listed on the 

Exemption Registry as required by section 50-6-902. 

Requested Relief 

Turning first to the medical benefits Mr. Bland seeks, the Court holds that under 

Tennessee Code Annotated section 50-6-204(a)(1)(A), Mr. Chitwood must provide him 

with past and continuing reasonable and necessary medical treatment related to the 

injury. The Court appoints Dr. Weikert as the authorized treating physician. The Court 

further finds treatment with Centennial, Peakview Emergency Physicians, Radiology 

Alliance, Air Evac, Vanderbilt, Dr. Weikert and Publix appropriate because Mr. 

Chitwood failed to provide Mr. Bland medical care, requiring him to seek treatment on 

his own. See Young v. Young Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 

(May 25, 20 16). The Court holds Mr. Chitwood responsible for immediate payment of 

these bills. 

Next, Mr. Bland additionally seeks temporary total and partial disability benefits. 

See Tenn. Code Ann. § 50-6-207(1)-(2). In Jones v. Crencor, 2015 TN Wrk. Comp. 

App. Bd. LEXIS 48, at *7 (Dec. 11, 2015), the Appeals Board held: "An injured worker 

is eligible for temporary disability benefits if: ( 1) the worker became disabled from 

working due to a compensable injury; (2) there is a causal connection between the injury 

and the inability to work; and (3) the worker established the duration of the period of 

disability." While temporary total disability refers to the employee's condition while 

completely unable to work because of the injury until the worker recovers as far as the 

nature of the injury permits, "[t]emporary partial disability refers to the time, if any, 

during which the injured employee is able to resume some gainful employment but has 

not reached maximum recovery." Frye v. Vincent Printing Co., et a!., 2016 TN Wrk. 

Comp. App. Bd. LEXIS 34, at *15-16 (Aug. 2, 2016). 

Here, the Court holds that Mr. Bland became disabled at work due to a 

compensable injury and a causal connection exists between the injury and his inability to 

work. With regard to the remaining factor for consideration, Mr. Bland introduced 

medical records into evidence excusing him from work from June 21 through September 

21. After September 21, due to the termination, Mr. Chitwood made no effort to 

accommodate Mr. Bland's restrictions, forcing him to seek employment elsewhere. The 

4 
Court finds Mr. Bland was unable to return to work within his restrictions from 

September 21 through December 31. Therefore, Mr. Bland has come forward with 

sufficient evidence from which this Court concludes that he is likely to prevail at a 

hearing on the merits on the issue of temporary disability benefits for the above 

timeframe. Mr. Bland's compensation rate is $400 per week or $57.14 per day. He was 

restricted from work for 193 days, which totals $11,028.02 immediately due and owing. 

Uninsured Employer 

Finally, although this Court holds Mr. Chitwood must provide Mr. Bland with past 

and ongoing medical and disability benefits, it is unclear whether payment will occur 

because Mr. Chitwood did not have workers' compensation insurance at the time of the 

accident nor has he made any effort to participate in this case. The Bureau has discretion 

to pay limited temporary disability and medical benefits from the UEF to an employee 

who: 1) worked for an employer who failed to secure payment of compensation; 2) 

suffered an injury primarily arising in the course and scope of employment on or after 

July 1, 2015; 3) was a Tennessee resident on the date of the injury; and, 4) "provided 

notice to the bureau of the injury and of the failure of the employer to secure the payment 

of compensation within a reasonable period of time, but in no event more than sixty (60) 

days after the date of the injury[]" Tenn. Code Ann. § 50-6-801(d)(1)-(4) (Emphasis 

added). 

Based upon the evidence, the Court finds Mr. Bland was a Tennessee resident on 

June 20 and was an employee of Mr. Chitwood for purposes of the Tennessee Workers' 

Compensation Law. As of June 20, Mr. Chitwood failed to secure workers' 

compensation insurance. Mr. Bland suffered his injury after July 1, 2015, and the Court 

holds he is likely to prevail at hearing on the merits that he suffered an injury primarily 

within the course and scope of employment. At that time, Mr. Chitwood failed to provide 

workers' compensation insurance and likewise paid no medical or temporary disability 

benefits for Mr. Bland's claim. 

However, the Court finds Mr. Bland provided notice to the Bureau of the injury 

and of Mr. Chitwood's failure to secure the payment of compensation seventy-two days 

after the date of injury. While the Court is mindful of the physical and financial 

hardships Mr. Bland suffered, the plain language of the statute requires notice "in no 

event" more than sixty days after the date of injury. Therefore, the Court concludes as a 

matter of law that he is not eligible for application for payment by the Bureau. This 

ruling does not prevent Mr. Bland from coming forward with additional evidence of 

contacts or notice to the Bureau in a subsequent hearing. 

5 
IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Chitwood shall pay for past medical care in the sums outlined within this 

Order. Dr. Weikert shall continue to serve as the authorized treating physician. 

Mr. Bland or the medical providers shall furnish any other reasonable, necessary 

and related bills to Mr. Chitwood for prompt payment. 

2. Mr. Bland is entitled to past temporary disability payments in the amount of 

$11,028.02 payable immediately as a lump sum. 

3. Mr. Bland is not eligible at this time to receive medical and temporary disability 

benefits from the UEF. 

4. This matter is set for a Scheduling Hearing on September 11 , 2017, at 9:45 a.m. 

Central Time. The parties must call 615-532-9552 or 866-943-0025 toll-free to 

participate in the hearing. Failure to appear by telephone may result in a 

determination of the issues without your participation. 

5. Unless interlocutory appeal of the Expedited Hearing 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 Annotated section 50-6-239(d)(3). 

Mr. Chitwood 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 Penalty Unit by email at 

WCCompliance.Program@tn.gov. 

ENTERED this the 24th day of July, 2017. 

Court of Workers' Compensation 

6 
APPENDIX 

Exhibits: 

1. Affidavit of Cody Bland 

2. Employee Medical records 

3. Expedited Request for Investigation Report 

4. Memo confirming Mr. Bland's termination 

Technical Record: 

1. Petition for Benefit Determination, September 2, 20 16 

2. Request for Investigation 

3. Dispute Certification Notice 

4. Request for Expedited Hearing 

5. Notice of Expedited Hearing and proof of delivery 

CERTIFICATE OF SERVICE 

I certify that ·a true and correct copy of this Order was sent to the following 

recipients by the following methods of service on this the 24th day of July, 2017. 

Name Certified Via 

Mail Fax 

Brian Dunigan, 

Employee's attorney 

Mike Chitwood, X 

Employer 

7 

Via 

Email 

X 

Service sent to: 

brian@goncelaw .com 

Mike Chitwood, Chitwood Floors, 

c/o Accurate Tax Service 

2606 Eugenia Ave., Suite C 

Nashville TN 37211 

, Clerk of Court 

rkers' Compensation Claims 

lerk@tn.gov