                                                                                                       April 18th, 2016

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                                                                                                 WORKERS' COi\1PE~SATIO~
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                                                          ··············                                  Time: 12:57 P:\:1
                     BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT KNOXVILLE

RYAN D. TIMMERMAN,                                                 )       Docket No.: 2014-03-0022
          Employee,                                                )
v.                                                                 )       State File Number: 8468-2014
INSTA DRI OF KNOXVILLE,                                            )
          Employer.                                                )       Judge Pamela B. Johnson


                     EXPEDITED HEARING ORDER
         DENYING MEDICAL AND TEMPORARY DISABILITY BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the Employee, Ryan Timmerman, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The central legal issues are (1)
whether Mr. Timmerman sustained an injury arising primarily out of and in the course
and scope of employment with the Employer, Insta Dri of Knoxville; (2) whether Mr.
Timmerman is entitled to past or future medical benefits; and (3) whether Mr.
Timmerman is entitled to past or future temporary disability benefits. For the reasons set
forth below, the Court finds Mr. Timmerman failed to demonstrate that he is likely to
prevail at a hearing on the merits on the issues of compensability and entitlement to
medical and temporary disability benefits. 1

                                               History of Claim

       Mr. Timmerman is a thirty-one-year-old resident of Knox County, Tennessee.
Insta Dri employed Mr. Timmerman as a crew supervisor in crawlspace encapsulation.
(T.R. 1.) On July 7, 2014, Mr. Timmerman allegedly sustained injury to his right eye
when an object flew and struck his eye while working for Insta Dri. (T.R. 1.)

       Mr. Timmerman came under the care of Dr. Nicholas G. Anderson of
Southeastern Retina Associates. On July 10, 2014, Mr. Timmerman presented with eye
pain, and reported "at work today a unknown object, maybe a rock, flew into pt OD."
1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
(Ex. 6, 07/10/2014 Office Note.) Dr. Tod A. McMillan diagnosed a ruptured globe,
unspecified OD, and prescribed eye drops. !d.

       Mr. Timmerman remained under the care of Southeastern Retina physicians. Jd.
In subsequent visits, Mr. Timmerman reported experiencing a pressure sensation in the
right eye. (Ex. 6, 07112/2014 Office Note.) On July 14, 2014, Dr. Joseph M. Googe
recommended immediate surgery to include PPV, lensectomy, and an injection of
antibiotics into the right eye. (Ex. 6, 07/14/2014 Office Note.) Mr. Timmerman
underwent the recommended surgery the same day, performed by Dr. Nicholas G.
Anderson. (Ex. 6, Vitreo-retinal Surgery Sheet.)

       Post-operatively, Mr. Timmerman returned to Southeastern Retina and saw Dr.
Anderson, who diagnosed (1) endophthalmitis OD; (2) status-post vitreo-retinal surgery
OD; and (3) repaired ruptured globe, unspecified OD. (Ex. 6, 07/15/14 Office Note.)
Following surgery, Mr. Timmerman continued to report blurred vision in the right eye
with intermittent eye pain, flashes and floaters, and headaches. (See generally Ex. 6.)

       The Employee's Prehearing Brief averred Mr. Timmerman received medical
treatment on the day of the incident from Dr. Dorian Lain, who referred him to Baptist
Eye Surgeons. That same afternoon, Mr. Timmerman received stitches to a split cornea.
Thereafter, Mr. Timmerman came under the care of Southeastern Retina Specialists, who
eventually referred him to Tennessee Valley Eye Center, where he underwent a lens-
implant surgery on March 12, 2015. (See generally T.R. 15.) The parties did not
introduce the medical records of Dr. Lain, Baptist Eye Surgeons, or Tennessee Valley
Eye Center.

      Mr. Timmerman filed a Petition for Benefit Determination (PBD) on October 24,
2014, seeking temporary disability and medical benefits for the alleged work-related
mJury. The parties did not resolve the disputed issues through mediation, and the
Mediating Specialist filed a Dispute Certification Notice (DCN) on January 20, 2015.
Mr. Timmerman filed a Request for Expedited Hearing, and this Court heard the matter
on March 1, 2016.

       At the Expedited Hearing, Mr. Timmerman failed to appear, purportedly due to
lack of childcare, and his attorney moved for a continuance. This Court denied the
motion for several reasons, including the following: sixteen months passed between the
filing of the PBD and the Expedited Hearing, the Court previously granted two
continuances, the parties selected the date of the Expedited Hearing, and the Court sent
notice of the date of the Expedited Hearing six weeks in advance.

      Mr. Timmerman, through counsel, relied upon his affidavit, and asserted he was
an employee of Insta Dri when he injured his right eye on July 10, 2014. Insta Dri was
without workers' compensation insurance coverage when the injury occurred. As a result

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of the work injury, Mr. Timmerman incurred medical bills, lost wages and lost use of his
right eye. (See generally Ex. 1 and T.R. 17-20.)

      Insta Dri called Kevin J ardet, the owner of Insta Dri, to testify at the Expedited
Hearing. Mr. Jardet denied Mr. Timmerman was an employee of Insta Dri, stating Mr.
Timmerman worked for Insta Dri as an independent contractor. Mr. Jardet testified that
Mr. Timmerman was at all times a subcontractor for Insta Dri and Mr. Timmerman was
aware of the same.

       Mr. Jardet testified Insta Dri did not pay taxes for its subcontractors and its
subcontractors did not complete W-4 forms. When he started Insta Dri, Mr. Jardet spoke
to an insurance agent and told the agent he intended to use subcontractors. According to
Mr. Jardet, the insurance agent advised him he did not need workers' compensation
msurance coverage. Insta Dri became defunct in January 20 15, with no account
receivables and no assets.

       Mr. Jardet testified Mr. Timmerman and two co-workers worked in crawl spaces
removing insulation, wiping off mold, and installing sump pumps. Mr. Jardet sold the
jobs, and Mr. Timmerman performed the work sold by Mr. Jardet. · Mr. Jardet did not
supervise Mr. Timmerman or his work.

       Mr. Jardet left it to Mr. Timmerman to decide when he wanted to complete the
job. Insta Dri paid Mr. Timmerman and his co-workers a flat fee for the work performed.
At the completion of the job, Insta Dri collected payment from the customer, then paid
Mr. Timmerman and his co-workers. Mr. Timmerman received more as the job
superintendent. lnsta Dri issued 1099s to Mr. Timmerman and his co-workers
individually.

       Further, Mr. Jardet had authority to fire Mr. Timmerman and Mr. Timmerman had
the right to quit. Mr. Jardet acknowledged Mr. Timmerman had the right to hire
additional people as well as the authority to fire his two co-workers. Insta Dri also
retained the right to fire Mr. Timmerman's co-workers. Mr. Jardet stated if Mr.
Timmerman hired additional workers to complete a job, then Mr. Timmerman's pay
would be reduced.

       Mr. Jardet stated that Insta Dri supplied Mr. Timmerman and his co-workers with
their safety equipment - eyeglasses, masks, and gloves - and a razor knife. However,
Mr. Jardet indicated if Mr. Timmerman lost any of the equipment provided, then Mr.
Timmerman was responsible for replacing the equipment.

      Mr. Jardet testified that Mr. Timmerman, as the crew leader, determined the hours
worked by himself and his co-workers. Mr. Timmerman had the right to sell a similar job
and perform the work himself so long as Insta Dri's name was not attached to the sale or

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work performed. Further, Mr. Timmerman was a floor technician and worked in that
capacity outside any relationship with Insta Dri.

       Mr. Jardet testified he was not in town when the alleged incident occurred. His
brother, Chris Jardet, and two of his co-workers later informed Mr. Jardet that an incident
involving Mr. Timmerman occurred on the job. Mr. Timmerman did not contact him
until eight months later when he received a letter in the mail advising him Mr.
Timmerman was seeking workers' compensation benefits. Mr. Timmerman did not work
again for Insta Dri following the incident.

                        Findings of Fact and Conclusions of Law

        In a workers' compensation claim, Mr. Timmerman has the burden of proof on all
essential elements of his claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug.
18, 20 15). At an Expedited Hearing, Mr. Timmerman does not have to prove every
essential element of his claim by a preponderance of the evidence in order to obtain
relief. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
Instead, he must present sufficient evidence from which the Workers' Compensation
Judge can determine that he is likely to prevail at a hearing on the merits. !d.

       To award workers' compensation benefits, the Court must find that Mr.
Timmerman was an employee and not an independent contractor. Bargery v. Obion
Grain Co., 785 S.W.2d 118, 121 (Tenn. 1990). Determining whether an individual
worked as an employee or an independent contractor requires a specialized factual
analysis. Masiers v. Arrow Transfer & Storage Co., 639 S.W.2d 654, 656-57 (Tenn.
1982) (citing Barnes v. Nat'! Mortg. Co., 581 S.W.2d 957 (Tenn. 1979)). 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. Boruff v. CNA Ins.
Co., 795 S.W.2d 125, 127 (Tenn. 1990).

      The Workers Compensation Law provides:

      In a work relationship, in order to determine whether an individual is an
      'employee,' or whether an individual is a 'subcontractor' or an
      'independent contractor,' the following factors shall be considered:

             (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;

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              (e) The furnishing of tools and equipment;
              (f) Self-scheduling of working hours; and
              (g) The freedom to offer services to other entities[.]

Tenn. Code Ann.§ 50-6-102(12)(D)(i) (2015).

        In Jewell v. Cobble Construction and Arcus Restoration, No. 2014-05-0003, 2015
TN. Wrk. Comp. App. Bd. LEXIS 1 (Tenn. Workers' Comp. App. Bd. Jan. 12, 2015), the
Workers' Compensation Appeals Board analyzed the employee versus independent
contractor relationship. The Appeals Board stated "[t]hese factors are not absolutes that
preclude examination of each work relationship as a whole and are no more than a means
of analysis." Jewell, 2015 TN. Wrk. Comp. App. Bd. LEXIS at *15. While no single
factor is determinative, the Tennessee Supreme Court "has repeatedly emphasized the
importance of the right to control, the relevant inquiry being whether the right existed,
not whether it was exercised." !d. Once it is established that an employment relationship
exists, "the burden is on the employer to prove the worker was an independent contractor
rather than an employee." !d. Another factor that has gained significance is the right of
termination. !d. at *16. "[T]he power of a party to a work contract to terminate the
relationship at will is contrary to the full control of work activities usually enjoyed by an
independent contractor." !d.

       In the present case, and considering the statutory factors separately, the Court
finds as follows:

      (a) Mr. Timmerman maintained the right to control the conduct of the work. Mr.
          Jardet testified that he did not supervise Mr. Timmerman or his work.

      (b) Mr. Jardet had the right of termination. Mr. Jardet testified, as the owner of
          Insta Dri, he had the authority to fire Mr. Timmerman, but Mr. Timmerman
          could also quit.

      (c) The method of payment demonstrates an independent contractor relationship.
          Mr. Jardet testified Insta Dri paid Mr. Timmerman per job completed.

      (d) Mr. Timmerman had the right to select and hire helpers. Mr. Jardet testified
          Mr. Timmerman · could hire and/or fire co-workers to assist him in the
          completion of the project. Mr. Timmerman's hiring of additional co-workers
          would dilute the pay Mr. Timmerman received at the completion of the project.

      (e) Insta Dri furnished Mr. Timmerman's safety equipment. Mr. Jardet testified he
          provided Mr. Timmerman with his initial safety equipment - eyeglasses,
          masks, and gloves - and a razor knife. If Mr. Timmerman lost one of these
          items, Mr. Timmerman would be responsible for replacing the item lost.

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       (f) Mr. Timmerman had the right to self-schedule his working hours. Mr. Jardet
          . testified he sold the job and Mr. Timmerman completed the work. Mr.
            Timmerman determined when he and his co-workers worked to complete the
           job.

       (g) Mr. Timmerman had the freedom to offer services to other entities. Mr.
           Timmerman had the right to sell another job and perform the work himself, so
           long as Insta Dri's name was not attached to the sale or work performed. Mr.
           Timmerman was a floor technician and worked in that capacity outside any
           relationship with Insta Dri.

       Upon careful consideration of the factors set forth above and the evidence
introduced at the Expedited Hearing, this Court finds Mr. Timmerman worked for lnsta
Dri as an independent contractor, not an employee. Therefore, as a matter of law, this
Court finds Mr. Timmerman failed to establish that he is likely to prevail at a hearing on
the merits. His request for medical and temporary disability benefits is denied at this
time.

IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Timmerman's claim against Insta Dri of Knoxville and its workers'
       compensation carrier for the requested medical and temporary disability benefits is
       denied at this time.

   2. This matter is set for an Initial (Scheduling) Hearing on June 15, 2016, at 9:30
      a.m. Eastern time.

       ENTERED this the 18th day of A



                                        JUD
                                     Court of Workers' Compensation Claims

Initial ( cheduling) Hearing:

       An Initial (Scheduling) Hearing has been set with Judge Pamela B. Johnson, Court
of Workers' Compensation Claims. The parties or their counsel must call toll-free
(855) 543-5041 or (865) 594-0109 to participate in the Initial Hearing. Failure to call in
may result in a determination of the issues without further participation.

Right to Appeal:

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       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency
      in accordance with this section shall result in dismissal of the appeal.

  5. The parties, having the responsibility of ensuring a complete record on appeal,
     may request, from the Court Clerk, the audio recording of the hearing for the
     purpose of having a transcript prepared by a licensed court reporter and filing it
     with the Court Clerk within ten calendar days of the filing of the Expedited
     Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
     the evidence within ten calendar days of the filing of the Expedited Hearing
     Notice of Appeal. The statement of the evidence must convey a complete and
     accurate account of what transpired in the Court of Workers' Compensation
     Claims and must be approved by the workers' compensation judge before the
     record is submitted to the Clerk of the Appeals Board.

  6. If the appellant elects to file a position statement in support of the interlocutory
     appeal, the appellant shall file such position statement with the Court Clerk within
     five business days of the expiration of the time to file a transcript or statement of
     the evidence, specifying the issues presented for review and including any
     argument in support thereof. A party opposing the appeal shall file a response, if
     any, with the Court Clerk within five business days of the filing of the appellant's
     position statement. All position statements pertaining to an appeal of an

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interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.




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                                     APPENDIX

Exhibits:

       • EXHIBIT 1: Affidavit of Ryan Timmerman;
       • EXHIBIT 2: Medical Expenses from Southeastern Retina Associates, P.C.;
       • EXHIBIT 3: Medical Expenses from University Health System;
       • EXHIBIT 4: Medical Expenses from University Anesthesiologists;
       • EXHIBIT 5: Medical Expenses from Baptist Eye Surgeons; and
       • EXHIBIT 6: Medical Certification and Medical Records of Southeastern
         Retina Associates, P.C.


Technical Record:
      • Petition for Benefit Determination, filed October 24, 2014;
      • Dispute Certification Notice, filed January 20, 2015;
      • Request for Expedited Hearing, filed May 4, 2015;
      • Show Cause Order, issued August 19, 2015;
      • Order of Dismissal without Prejudice, issued September 9, 2015;
      • Order Setting Aside Order of Dismissal, issued September 10, 2015;
      • Order, issued October 12, 2015;
      • Motion for Continuance, filed November 3, 2015;
      • Employee's Pre-Hearing Brief, filed November 11, 2015;
      • Order, issued November 13, 2015;
      • Respondent's Pre-Hearing Brief, filed November 19, 2015;
      • Motion for Continuance, filed January 14, 2016; and
      • Order of Continuance, issued January 14, 2016.

The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in these
filings or any attachments to them as allegations unless established by the evidence.




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                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 18th day
of April, 2016.


Name                      Certified Fax        Email   Service sent to:
                          Mail
Patrick C. Woodside,                           X       gatrickcwoodside@gmai l.com
Employee's Attorney
Robert Seth Oakes,                             X       soakes@tcflattorneys.com
Employer's Attorney




                                        ~r~u~1-C-l~e -k_o_~f_C_o_~------------
                                        Court of o · ers' Compensation Claims
                                        we. ourte erk@tn.gov




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