            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Earl Dwain Willis                             ) Docket No. 2016-06-0702
                                              )
v.                                            ) State File No. 30458-2016
                                              )
Express Towing                                )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Joshua D. Baker, Judge                        )


                    Affirmed and Remanded—Filed February 9, 2017


In this interlocutory appeal, a tow truck driver sought workers’ compensation benefits for
injuries to his ankle suffered in a fall as he exited his truck. The purported employer
defended the claim on the basis that it did not employ five or more people and, therefore,
was not subject to the statutory requirement that it carry workers’ compensation
insurance. The trial court found otherwise, and the employer appealed. We affirm the
trial court’s decision and remand the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.

Kitty Boyte, Nashville, Tennessee, for the appellant, Express Towing

Eric Lehman, Clarksville, Tennessee, for the appellee, Earl Dwain Willis

                          Factual and Procedural Background

       Earl Willis, a tow truck driver, suffered injuries to his left ankle while exiting his
truck after returning from a call on March 18, 2016. For purposes of this appeal, neither
the nature and extent of the injury nor whether the injury is causally related to the
employment are in dispute. Mr. Willis sought emergency treatment and provided timely
notice to Michael Copeland, the individual who owned the truck he was driving and who
hired him to drive the truck. Mr. Copeland did not have a workers’ compensation
insurance policy in effect at the time of the accident. Mr. Willis asserted that Mr.

                                             1
Copeland’s business was actually a part of the purported employer in this case, Express
Towing (“Express”), and that Express employed at least five people, triggering the
statutory requirement that it provide workers’ compensation insurance coverage to
employees.

       At an expedited hearing held in July 2016, Mr. Willis, the only witness to testify,
stated that Express employed “like 10” individuals and provided a list of names of some
of the alleged employees. He further testified that Alan Mann was the owner of Express
and oversaw the operation of two tow trucks in the Sumner County area. Moreover, Mr.
Copeland owned and operated two trucks in the Davidson County area that also used the
Express name and logo.

       The trial court entered an order for benefits, finding Mr. Willis to be an employee
of Express. Express appealed and, shortly thereafter, requested that the trial court alter or
amend its order. We held the appeal in abeyance and remanded the matter to the trial
court for consideration of Express’s motion. The trial court denied the motion to alter or
amend but granted a motion to stay enforcement of its previous order and convened a
second expedited hearing. As a result, Express voluntarily dismissed the first appeal.

        A second expedited hearing was held in November 2016, at which seven witnesses
testified. Mr. Mann testified first, stating that he was the owner of Express and that the
business was located in Sumner County, Tennessee. He acknowledged having one
employee, James Mullins, and owning two tow trucks. He maintained the business
license and the required insurance for Express and acknowledged that he allowed Mr.
Copeland to operate a towing business in Davidson County under the license and
insurance of Express. On direct examination, the following exchange occurred:

       Q:    What is [Mr. Copeland’s] relationship with Express Towing? Can
       you explain that structure?

       A:      Basically, he runs my name on the trucks. He’s got a couple trucks,
       too, and he’ll run the name, you know, just for advertisement, extra money,
       stuff like that, and he’ll pay me a percentage of what he brings in.

       Mr. Mann also testified that the business he operates is based in Sumner County,
while the business operated by Mr. Copeland is based in Davidson County. When asked
who owned the property on which the Davidson County operation was located, he
responded, “I don’t know who owns that property, but I know [Mr. Copeland] does rent
it.” When questioned further about the business in Davidson County, Mr. Mann
responded,

       I don’t really know, because I don’t really get into, you know, what he does
       as far as around the shop and who he has, you know, do things for him, you

                                             2
       know. I know he’s got a lot of family that comes down there, you know.
       He’s got a couple people that live on the lot, you know. I see them all the
       time. But other than that, I don’t really know who works for him.

Mr. Mann further testified that he receives thirty percent of Mr. Copeland’s earnings in
exchange for allowing Mr. Copeland to use his business name, license, and insurance
policy. He testified that, with respect to how Mr. Copeland operates his business, he has
“no control over what he does with his trucks or who he hires or any tools he has.
They’re all owned by him, not me.” He further stated that he has “no control over what
he does at his business, his lot, who he hires, what trucks he has. You know, it’s all
owned by him. I have no dealings with that.”

        The testimony of Mr. Copeland was largely consistent with Mr. Mann’s testimony.
He testified that he does not own a company but that he does own two trucks that he
leases to Express. He acknowledged having had an employee in the past drive one of the
trucks while he drove the other truck. However, at the time of the hearing, Mr. Copeland
testified that he did not have any employees. He agreed that Mr. Mann provides the
business name and maintains the business license and insurance and that he pays Mr.
Mann a portion of his earnings in exchange for the use of those things, although he
testified that he keeps thirty percent of what he earns.1

       With respect to whether certain individuals were employees as alleged by Mr.
Willis, Mr. Copeland denied that they were. One such person, Ann Tolbirt (often
referred to in the record as “Ann Copeland” and referred to by the trial court as “Ann
Taubert”), is his girlfriend who helps him out “from time to time.” He acknowledged
that he would pay her nominal sums of money when she provided that assistance but
denied she was “on the payroll.” He testified that a longtime friend, Cathy Kramer,
would also sometimes help out when she needed money. He described her as someone
with “issues” and testified that he would give her jobs to do to make extra money or pay
off debts she owed him.

        Mr. Copeland also testified with respect to Ronnie Welker, indicating that he was
an individual who lives in a bus on the Davidson County business premises and that, as a
means of offsetting the cost of keeping his bus on the property, he occasionally performs
odd jobs around the business. He denied paying Mr. Welker for these jobs, stating that
anything Mr. Welker does is in exchange for being allowed to live on the property.
When asked what Mr. Welker does with respect to the towing business, Mr. Copeland
testified “[n]othing really.”


1
  While Mr. Copeland and Mr. Mann provided somewhat inconsistent testimony with respect to what
percentage of Mr. Copeland’s earnings each received, that discrepancy was not further explored in the
testimony of either witness. For purposes of our review, however, that discrepancy is not determinative.

                                                   3
        Mr. Copeland testified that a mechanic, Irby Trotter, operates on his lot but has
nothing to do with the tow truck business. He identified Steve Albright as a longtime
friend who will, on occasion, come to the tow truck lot to visit and may ride along with a
driver. Mr. Copeland testified that Mike Jarrell also lives in a camper on the Davidson
County lot and occasionally answers the phone for him in exchange for access to
electricity and water. Mr. Copeland denied paying Mr. Jarrell any money and testified
that if either Mr. Jarrell or Mr. Welker stopped performing odd jobs or helping out
around the lot, he would not make them move. Finally, the following exchange occurred:

       Q:     Do you do – do you operate as a part of Mr. Mann’s business at all?

       A:     What do you mean by that?

       Q:     Would he list you as a co-owner or a business partner or a consultant
       or anything? Is there anything that he counts on you to do as a part of his
       business?

       A:     No.

       Mr. Welker testified that, in exchange for being allowed to live on the tow truck
lot in Davidson County, he does odd jobs to help out, such as “sweep cigarette butts or
wash a truck and help him cut his grass and things like that.” He further stated that he
would help Mr. Copeland on his personal property in addition to performing work at the
business lot.

       Mr. Jarrell testified that he also lives on the tow truck lot, stating that Mr. Mann is
the owner of the Davidson County premises. He also testified that he does odd tasks for
the business to help out in exchange for being allowed to stay on the property rent-free.
He described jobs such as “answer[ing] the phone every now and then, when they need
me to. Sometimes I’ll release an impounded car, if they need somebody there to do it. I
watch the property, mainly.”

        Mr. Trotter’s testimony followed that of Mr. Jarrell, and he indicated that he
performs mechanic work on the tow truck lot. He denied being employed by Mr. Mann
or Mr. Copeland, explaining that his business license expired and he just performs work
for past clients, friends, and family. He acknowledged performing small jobs on Mr.
Mann’s and Mr. Copeland’s tow trucks in exchange for being allowed to use the space at
the lot. When asked if he exchanged his services on a regular basis, he testified that he
did not because Mr. Copeland and Mr. Mann take good care of their equipment. He
testified that the arrangement that allowed him to use the garage at the tow truck lot in
Nashville had been made with Mr. Mann and that he did not believe he would be
prohibited from using the space on the lot to work on cars if he stopped working on the
tow trucks for Mr. Mann and Mr. Copeland.

                                              4
       Mr. Mullins also testified, stating that he works for Mr. Mann and supervises the
Davidson County lot for Express. He testified that the Davidson County lot is where he
takes vehicles he tows. He also testified that, if he is in that location, he will answer the
phone on behalf of Express. When he does take a call in that location, he testified that he
contacts Mr. Mann for further instructions. He also testified, however, that Mr. Copeland
maintains an office separate from Express, clarifying that he, Mr. Mullins, works “strictly
for [Mr. Mann].” When asked whether he knew Mr. Willis, Mr. Mullins stated:

       A:     I’ve seen him up there at that lot up there, at Express Towing, yes,
              ma’am.

       Q:     What was he doing?

       A:     He’s drove a wrecker for Mike Copeland.

       Q:     Does Mike Copeland have any other employees?

       A:     No, ma’am.

       Mr. Albright was the final witness to testify. While acknowledging that he had
driven wreckers for Mr. Copeland and Mr. Mann at different times, he denied that he was
employed by either of them. He testified that he is in a motorcycle club and, as a result,
travels frequently, rendering him undependable. He further testified that he had never
been paid by Mr. Mann or Mr. Copeland, stating that when he had driven a wrecker for
them, it was to fill in or do them a favor. He testified that, shortly after Mr. Willis began
working for Mr. Copeland, he rode with him on calls a couple of times to make sure he
was capable of doing the job.

       After considering this testimony, the trial court concluded that the business
operated by Mr. Copeland and the business operated by Mr. Mann were part of the same
business enterprise and that the business employed five or more employees at the time
Mr. Willis was injured. Express has appealed.

                                   Standard of Review

       The standard we apply in reviewing a trial court’s decision is statutorily mandated
and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s
decision may be reversed or modified if the rights of a party “have been prejudiced
because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

       (A)    Violate constitutional or statutory provisions;

                                             5
       (B)    Exceed the statutory authority of the workers’ compensation judge;
       (C)    Do not comply with lawful procedure;
       (D)    Are arbitrary, capricious, characterized by abuse of discretion, or
              clearly an unwarranted exercise of discretion; or
       (E)    Are not supported by evidence that is both substantial and material
              in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015).

                                         Analysis

       Express asserts that Mr. Willis was employed by Mr. Copeland rather than by
Express, and maintains that it is not an employer as defined by Tennessee Code
Annotated section 50-6-102(13) (2015) because it did not have five or more employees at
the time Mr. Willis was injured. Express acknowledges that Mr. Mann and Mr. Mullins
were employees of Express, but asserts that the trial court erred in finding Mr. Copeland,
Mr. Willis, Ms. Tolbirt, and Mr. Jarrell also to be its employees. Express argues that
there was no “contract of hire or apprenticeship, written or implied” to establish any of
these individuals as “covered employees” pursuant to Tennessee Code Annotated section
50-6-102(12)(A) (2015).

                                             A.

        The trial court determined that the business operating under the name of Express
Towing in Davidson County was the same business operating under that name in Sumner
County. It is undisputed that the business utilized four tow trucks. Two of the trucks
were owned by Mr. Mann, and two were owned by Mr. Copeland. Mr. Copeland
operated at the Davidson County location while Mr. Mann conducted business at the
Sumner County location. It is also undisputed that both locations used the same business
name and the same business license and that all operations were insured by the same
insurance policy. Mr. Mullins testified that he would receive phone calls related to the
business in Sumner County at the Davidson County location and, when that occurred, he
would contact Mr. Mann for instructions. He also testified that he supervised the
Davidson County location for Mr. Mann and that when he towed vehicles he took them to
that location.

       Although there is some evidence contrary to the conclusion that the two
enterprises were one and the same, we cannot conclude that the evidence preponderates
against the trial court’s conclusion that the two businesses were, in fact, a single business
enterprise. The trial court’s finding in that regard is affirmed.




                                             6
                                             B.

       In light of this finding, we have no difficulty agreeing with the trial court that the
business had at least four employees - Mr. Mann, Mr. Copeland, Mr. Mullins, and Mr.
Willis. An employer must employ five or more persons before being subject to the
requirements of the Tennessee Workers’ Compensation Law. See Tenn. Code Ann. §§
50-6-102(13), 50-6-106(5) (2015). Thus, we must consider whether the preponderance of
the evidence supports the trial court’s finding that Mr. Jarrell and/or Ms. Tolbirt were
employees.

       Mr. Jarrell testified that he is allowed to live on the Davidson County tow truck lot
rent-free and that, in return, he performs odd jobs for the business. Included in these jobs
are answering the phone, releasing impounded cars, and watching over the premises.
Clearly, these tasks benefit the business of Express. While some testimony suggests that
Mr. Jarrell’s ability to continue to live on the lot was not contingent upon his continued
provision of services, Mr. Jarrell testified as follows:

       Q:    In return for living on the property [in Davidson County], what is
       your payment arrangement with Mr. Mann?

       A:      Well, I answer the phone every now and then, when they need me to.
       Sometimes I’ll release an impounded car, if they need somebody there to
       do it. I watch the property, mainly.

       The Tennessee Supreme Court has observed that “payment, to satisfy the
requirement of a contract of hire, need not be in money, but may be in anything of value.”
Garner v. Reed, 856 S.W.2d 698, 701 (Tenn. 1993). Here, there is sufficient support in
the record to conclude that Mr. Jarrell was, for purposes of workers’ compensation, an
employee of Express. Thus, Express employed five or more people and was required to
provide workers’ compensation insurance coverage for its employees.

       We also note that where, as here, there is conflicting evidence, factual findings
often hinge on credibility determinations. As such, “[w]hen the trial court has heard in-
court testimony, considerable deference must be afforded in reviewing the trial court’s
findings of credibility and assessment of the weight to be given to that testimony.” Tryon
v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). While the trial court in the present
case did not make express findings regarding witness credibility, it is clear the court
resolved conflicts in the testimony in favor of Mr. Willis, which was the court’s
prerogative. See Clark v. Willamette Indus., Inc., No. E1999-02693-WC-R3-CV, 2001
Tenn. LEXIS 138, at *6 (Tenn. Workers’ Comp. Panel Feb. 27, 2001) (“The issue of the
credibility of the live witnesses, one of whom was the [employee], was of critical
importance to the case. The trial judge clearly made a judgment about this issue, as was
his prerogative, and his judgment must be given considerable deference.”); Neas v. Neas,

                                             7
No. E2015-00292-COA-R3-CV, 2015 Tenn. App. LEXIS 968, at *14 (Tenn. Ct. App.
Dec. 15, 2015) (“The Trial Court, to some extent, implicitly did not credit [a party’s]
explanation. This was within the Trial Court’s prerogative as the determiner of
credibility, and we give strong deference to trial courts’ credibility determinations.”).
Indeed, in a brief filed in the trial court, Express asserted that “[t]his case is going to
come down to the issue of credibility.” We agree.

                                        Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision at this interlocutory stage of the case. Nor does the trial court’s
decision violate any of the standards set forth in Tennessee Code Annotated section 50-6-
217(a)(3). Accordingly, the trial court’s decision is affirmed. The case is remanded for
any further proceedings that may be necessary.




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                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Earl Dwain Willis                                        )   Docket No.   2016-06-0702
                                                         )
v.                                                       )   State File No. 30458-2016
                                                         )
Express Towing                                           )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 9th day of February, 2017.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Eric Lehman                                                        X     eric@lehmansandifar.com
 Kitty Boyte                                                        X     kboyte@constangy.com
 Joshua D. Baker,                                                   X     Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: Jeanette.Baird@tn.gov
