              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT KINGSPORT

Charles Murray                                            )    Docket No.: 2015-02-0078
             Employee,                                    )
v.                                                        )    State File Number: 1517-2015
Straightline Masonry                                      )
             Employer,                                    )    Judge Brian K. Addington
And                                                       )
Cincinnati Insurance Company                              )
             Insurance Carrier.                           )
                                                          )

      EXPEDITED HEARING ORDER DETERMINING MR. MURRAY'S
    EMPLOYMENT STATUS AND DENYING WORKERS' COMPENSATION
                          BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on March
16, 2016, on the Request for Expedited Hearing filed by Charles Murray pursuant to
Tennessee Code Annotated section 50-6-239 (20 15). The present focus of the case is the
status of Mr. Murray's employment at the time of injury. The central legal issue is
whether Mr. Murray was an employee of Straightline Masonry at the time of his
December 26, 2014 injury. 1 For the reasons set forth below, the Court finds Mr. Murray
was not an employee of Straightline Masonry at the time of his injury and thus was not
covered under the Workers' Compensation Law.

                                               History of Claim

       Charles Murray is a thirty-five-year-old resident of Washington County,
Tennessee. (T.R. 1 at 1.) Straightline hired him to work as a mason in the summer of
2014. His supervisors testified he was a great mason, but that he did have some
attendance issues. Mr. Murray earned $18.25 an hour.

       On December 22, 2014, Mr. Murray and other employees, and Joe Ball, a partner
of Straightline, worked at a job site called Bailey Ranch, a subdivision. This project was a
1
  Additional information regarding the technical record and exhibits admitted at the Expedited Hearing is attached to
this Order as an Appendix.
residential home constructed by Mr. Sam Kassem, the general contractor. Straightline's
crew partially built a wall that day. Straightline performed no other work at Bailey Ranch
the week of December 22.

        On December 23, 2014, Straightline moved its employees to a CenturyLink
worksite in Piney Flats, Tennessee, to build a small building. The general contractor at
this site was Hoilman Construction. Mr. Joe Ball supervised Straightline's work crew that
day. Work progressed normally until lunchtime. When Mr. Murray left the premises to
buy cigarettes, he drove across a grassy area into the parking lot of an adjoining bank.
Hoilman's superintendent, Scott, 2 yelled at him to not drive across the grass and through
the bank's parking lot. Mr. Murray rolled down his window and apologized.

       When Mr. Murray returned from buying cigarettes, Mr. Joe Ball was sitting in his
truck near where Mr. Murray parked his car. Mr. Murray exited his car and confronted
Scott, the superintendent. The confrontation escalated to the point that Mr. Murray
threatened the superintendent. Mr. Ball observed the confrontation and exited his truck to
intervene and terminate Mr. Murray's employment. Mr. Ball decided to terminate Mr.
Murray because he worried he would lose business with Hoilman Construction.

         The parties disagree regarding the events following the confrontation.

                                          Mr. Murray's version of events

       Mr. Murray testified Mr. Joe Ball intervened in the confrontation and told him to
be quiet or leave. Then Hoilman's superintendent told Mr. Ball that Mr. Murray had to
leave or he would call the police. Mr. Murray left without any discussion regarding his
future employment. Mr. Murray later returned to the jobsite, and Mr. Ball stated to him
that he was at fault for the events leading to his being required to leave.
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       Mr. Murray and his witnesses 3 testified he met with Mr. John Ball on two
separate occasions at Mr. Ball's house regarding a loan for $100.00 and a Christmas
bonus of $200.00. Mr. John Ball told him Straightline employees would work Friday,
December 26.

       Mr. Murray received a telephone call the morning of December 26, 2014, from
Mr. Joe Ball. He told Mr. Murray to clean brick at the Bailey Ranch site. Mr. Murray
advised he had no money to drive there. Mr. Murray later received a text from Mr. Joe
Ball to come to Food City to get his check. He met Mr. Joe Ball and Mr. John Ball, Sr. at
Food City to obtain his paycheck. He testified he arrived with his girlfriend who stayed in

2
  The parties did not provide Scott's last name.
3
   R< bin Milho.m, Mr. Murray's girlfriend, and Rena Ratliff, their lric nd.
4
  Mr. John Ball is Joe Ball ' brother. He is not to be confused with Mr. John Ball, Sr., Joe and John's father. For
ease of understanding, the Court will refer to the father as John Ball, Sr. All three are owners of Straightline.

                                                         2
the car. He took issue with Straightline deducting the $100.00 from his check to repay
the loan he received from John Ball, as John Ball had promised not to request repayment
until the new year. He received wages for seven and a half hours of work when he
should have received wages for twenty hours of work. He became angry and complained
to Joe Ball. John Ball, Sr. asked him whether he would clean brick at Bailey Ranch or
not. He then left to clean brick at Bailey Ranch.

      He testified he went to Bailey Ranch to clean mortar joints and that task involved
the use of tools. However, he fell from a scaffold when he started to work and an
ambulance took him to the hospital.

                                 Straightline 's version of events

       Mr. Joe Ball testified as he approached Mr. Murray following the confrontation,
Mr. Murray told him that there was no need to terminate him because he quit. Mr.
Murray then gathered his tools and left the premises. Mr. Murray returned later to retrieve
his jacket. Mr. Murray and Mr. Ball spoke again. Mr. Murray accused Mr. Ball of not
having "his back" during the confrontation with Hoilman's superintendent. Mr. Ball told
Mr. Murray that he felt Mr. Murray should not have cursed at the superintendent.

       Mr. Murray called Mr. Joe Ball around 8:00a.m. on December 26, 2014,
concerning his final paycheck. Mr. Ball initially told Mr. Murray he would get it at the
end of the day. He later changed his mind, and to avoid conflict with Mr. Murray,
arranged to meet him at Food City. Mr. Murray met Mr. Joe Ball and Mr. John Ball, Sr.
at Food City during lunch. Mr. Joe Ball observed that Mr. Murray arrived alone. After he
received his check, Mr. Murray became irate cursed and threatened him and his father.
He left Food City around noon. John Ball, Sr. did not ask Mr. Murray to work at Bailey
Ranch that day. Straightline's employees were only working at the CenturyLink building.

        The Ball family and Mr. Kassem, the general contractor at the Bailey Ranch site,
testified the mortar joints were dry and could not easily have been fixed with a simple
tool. Mr. Kassem did not observe any tools at the jobsite after Mr. Murray fell. Mr.
Kassem hired another subcontractor to clean the brick.

                    Mr. Murray's assertions at the Expedited Hearing

       Based upon this proof, Mr. Murray was Straightline's employee at the time of the
accident on December 26, 2014. Straightline had not terminated him and he had not quit
on December 23, 2014. He received a loan and a bonus after the confrontation with
Hoilman's superintendent. On December 26, 2014,both Mr. Joe Ball and John Ball, Sr.
told him to clean brick at Bailey Ranch. Because he was an employee performing work
for Straightline at the time of his accident, he is entitled to medical and temporary
disability benefits.

                                             3
                    Straightline 's assertions at the Expedited Hearing

       Mr. Murray was not Straightline's employee at the time of the accident of
December 26, 2014. He quit his job after lunch on December 23, 2014. He threatened
Hoilman's superintendent, and then threatened two of Straightline's owners after he
received his last paycheck. No one asked Mr. Murray to work at Bailey Ranch on
December 26, 2014, because he no longer worked for Straightline. Because Mr. Murray
was not an employee when he was injured, Straightline has no liability for workers'
compensation in this matter.

                       Findings of Facts and Conclusions of Law

        In this workers' compensation case, Mr. Murray 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). However, Mr. Murray need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief at an Expedited Hearing. 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
come forward with sufficient evidence from which the trial court can determine that he is
likely to prevail at a hearing on the merits. Jd.

        The legislature has expressly defined the phrase "arises primarily out of and in the
course and scope of employment" to mean that an injury is compensable "only if it has
been shown by a preponderance of the evidence that the employment contributed more
than fifty percent (50%) in causing the injury, considering all causes." Tenn. Code Ann. §
50-6-102(14)(B) (2015) (emphasis added). The legislature has defined an "employee" to
mean "every person ... in the service of an employer ... under any contract of hire or
apprenticeship, written or implied." Tenn. Code Ann. § 50-6-102(12)(A) (2015)
(emphasis added.) The Workers' Compensation Appeals Board recently held, "If only
'employees' as defined in the workers' compensation law are eligible for workers'
compensation benefits, then the critical issue . . . is whether the claimant was an
'employee' at the time of the injury." Duck v. Cox Oil Co., No. 2015-07-0089, 2015 TN
Wrk. Comp. App. Bd. LEXIS 2, at* 14 (Tenn. Workers' Comp. App. Bd. Jan. 21, 2016).
In this case, the parties confined the evidence to the issue of Mr. Murray's employment
status at the time of the injury.

       This Court observed Mr. Murray and his witnesses and finds they were not
credible. Mr. Murray asserted he confronted and threatened a client's superintendent and
two of Straightline's owners without any effect upon his employment status. Whereas,
Mr. Joe Ball testified that Mr. Murray quit after the confrontation on December 23, 2014,
and did not work for Straightline on December 26, 2014. Straightline's employees

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worked that day on the CenturyLink project. Mr. Joe Ball's testimony was more credible
in the context of the entire proof.

       Further, Mr. Murray's testimony that his check was short due to the loan he
received from Mr. John Ball is not credible. He testified his check contained wages for
seven and a half hours of work instead of twenty hours of work. Considering Mr. Murray
earned $18.25 an hour, a deduction of twelve and half hours would have been over
$228.00, not $100.00. Rather, the evidence established, as Mr. Joe Ball testified, that
Straightline provided Mr. Murray a final paycheck for the hours he worked the week
before he quit.

        Neither was Mr. Murray's testimony credible about his work at Bailey Ranch on
December 26, 2014. Not only the Ball family but also Mr. Kassem testified Mr. Murray
could not have fixed the joints as he explained because the mortar "set" prior to
December 26, 2014. Further, Mr. Kassem had not contracted Straightline to the clean
brick at Bailey Ranch. In addition, Mr. Kassem found no work tools at the Bailey Ranch
site after Mr. Murray's incident. Mr. Murray has not come forward with any credible
reason for his presence at Bailey Ranch on December 26, 2014, when the evidence
establishes Straightline's employees were working at the CenturyLink project that day.

      The Court finds the evidence preponderates in favor of the conclusion that Mr.
Murray was not Straightline's employee on December 26, 2014, because he quit his job
on December 23, 2014. Accordingly, Mr. Murray has not come forward with sufficient
evidence for the Court to determine he would succeed at a hearing on the merits.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Murray's claim against Straightline for temporary disability and medical
      benefits is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on April 18, 2016, at 10:30
      a.m. Eastern.

      ENTERED this the 24th day of March, 2016.

                                         ~ (G Ap!{~
                                 Judge Brian K. Addington
                                 Court of Workers' Compensation Claims




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Initial (Sch ·' duling) Hearing:

        A Scheduling Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call 855-543-5044 to participate in the
Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Eastern Time.


Right to App at:

       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 amottot 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 lndigency, 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 riling 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

                                            6
   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
   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.




                                         7
                                              APPENDIX

Exhibits:
   1. Affidavit of Charles Murray; and,
   2. Cell phone texts.

Technical record: 5
   1. Petition for Benefit Determination;
   2. Dispute Certification Notice;
   3. Request for Expedited Hearing; and,
   4. Agreed Order.




5
  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.

                                                      8
                            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 March 24,2016.

Name                Certified      First Class Via        Service Sent To:
                    Mail           Mail        Email
W. Culbertson,                                   X       rwc@wayneculbertsonlaw .com
Esq.
R. Pigue, Esq.                                    X      rpigue@!Q_mblaw .com




                                               Penny Shrum, Clerk of the Court
                                               Court of Workers' Compensation Claims
                                               WC.CourtClerk@tn.gov




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