# FILED**Jul~f** 

### 24,2017

TN COURTOF 1\ORKIRS'COMH I !:.

. ATION ClLAIMS
Tim

. e·2:29PM TENNESSEEBUREAU OFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS
CodyBland, Employee, 

### v. MikeChitwood, Employer. ATNASHVILLE ) DocketNo. 2016-06-1686 ) ) StateFile No. 68258-2016 ) ) JudgeKennethM. Switzer

EXPEDITEDHEARING ORDERGRANTINGREQUESTEDRELIEF

This matter came before the undersigned Workers' Compensation Judge on July 19, 2017, upon the Request forExpeditedHearing filed by CodyBland. The central legal issues are whetherMr. Bland suffered an injury arising primarily out ofand 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 theUninsuredEmployers Fund. The Court holds Mr. Bland came forward with sufficient evidence to establish that his injury arose primarily out ofhis 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 notprovidetheBureautimely notice. HistoryofClaim
Mr. Bland, a resident of Goodlettsville, Tennessee, began working for Mr. Chitwood in May 2016 as a laborer installinghardwood 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. Chitwoodwas a subcontractor for McGrathBrothers 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 occupationaltherapy.
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 ofthe employment, meaning that more than 50 percent ofthe injury is due to the employment, considering all causes." The affidavit additionally said Mr. Bland is in need offurther orthopedic care. Mr. Bland confirmed in his testimony that he believes his handis only about "eightypercent"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) VanderbiltMedical Center, $38,639.00; and 7) PublixPharmacy, $83.91. !d. at 74-90.
To obtainrelieffrom these bills and other assistance, Mr. Blandfiled aPetition for BenefitDetermination on September 2. Upon receipt ofthe 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 ofinjury. Perthe report, Mr. Chitwood said he was on the Exemption Registry and did not carryworkers' compensation. The investigator asked ifhe had a copy ofMr. Bland's certificate ofinsurance orproofofexemption, 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 ofhelpers; 5) Mr. Chitwood furnished the tools and equipment, and McGrathBrothers furnished the materials; 6) Mr. Chitwood setthe hours ofwork; and, 7) Mr. Blandwas not free to offerhis servicesto 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. Blandtestified 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
2accident. 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 performthe assignedjob duties due to the restrictions. The firstjob, with Kroger, began onJanuary 1, 2017. Mr. Blandsuccessfullyreturnedto work for MGMIndustries. Findings ofFact and Conclusions ofLaw
In order to grant the reliefMr. Bland seeks, the Court must apply the following legal principles. Mr. Bland bears the burden ofproofon all prima facie elements ofhis claim. See Tenn. Code Ann. § 50-6-239(c)(6) (2016). At an expedited hearing, Mr. Blandhas the burden to come forward with sufficientevidence from which this Court can determinehe is likely toprevail at ahearing onthe merits. McCordv. AdvantageHuman Resourcing, 2015 TNWrk. 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 ifthe injury is caused by a specific incident, or set of incidents, arising primarily out ofand in the course and scope ofemployment. 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 ofhow 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 ofand in the course and scope ofhis employmentwithMr. 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 '"1099 worker" rather than an employee for purposes of the Workers' Compensation Law. To make this determination, the statuteprovides thatthe Court shall consider: (a) Therightto control the conduct ofthe work; (b) The right oftermination; (c) The method ofpayment; (d) The freedom to select andhire helpers; (e) The furnishing oftools and equipment; (f) Self-scheduling ofworkinghours; and (g) The freedom to offer services to otherentities.

3Tenn. 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, thatMr. Chitwoodis 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 ExemptionRegistry as requiredby section 50-6-902. RequestedRelief 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, 2016). 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 ofthe period of disability." While temporary total disability refers to the employee's condition while completely unable to work because ofthe 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 betweenthe 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
4Court 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, whichtotals $11,028.02 immediately due and owing. UninsuredEmployer Finally, although this Courtholds Mr. ChitwoodmustprovideMr. Bland withpast 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 ofthe accident norhas he made any effort to participate in this case. The Bureauhas 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 ofemployment on or after July 1, 2015; 3) was a Tennessee resident on the date ofthe injury; and, 4) "provided notice to the bureau ofthe injury and ofthe failure ofthe employerto secure the payment ofcompensation within a reasonable period oftime, but in no event more than sixty (60) days after the date ofthe 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 ofMr. Chitwood for purposes ofthe 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 withinthe course and scope ofemployment. Atthattime, 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 ofthe injury and ofMr. Chitwood's failure to secure the payment ofcompensation 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 ofthe statute requires notice "in no event" more than sixty days after the date ofinjury. 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 subsequenthearing.

5IT 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 relatedbills to Mr

.Chitwoodforpromptpayment. 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 ofthe issues withoutyourparticipation. 5. Unless interlocutory appeal ofthe Expedited Hearing Order is filed, compliance withthis Ordermust occurno laterthan sevenbusiness days from the date ofentry 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 ofcompliance 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 dayofJuly, 2017.

CourtofWorkers' Compensation

6APPENDIX Exhibits: 1. Affidavit ofCodyBland 2. EmployeeMedicalrecords 3. ExpeditedRequest for InvestigationReport 4. Memo confirmingMr. Bland'stermination Technical Record: 1. Petition for BenefitDetermination, September 2, 2016 2. Request for Investigation 3. Dispute CertificationNotice 4. Request for ExpeditedHearing 5

. Notice ofExpeditedHearing andproofofdelivery

CERTIFICATE OF SERVICE I certify that ·a true and correct copy of this Order was sent to the following recipientsbythe following methods ofservice on this the 24th day ofJuly, 2017.

Name Certified Via Mail Fax BrianDunigan, Employee's attorney Mike Chitwood, X Employer

7 Via Email X Service sentto: brian@goncelaw.com Mike Chitwood, Chitwood Floors, c/oAccurate Tax Service 2606 EugeniaAve., Suite C NashvilleTN37211

, ClerkofCourt rkers' Compensation Claims lerk@tn.gov