FILED

October 3, 2017

TN COURT OF
WORKERS’ COMPENSATION
CLAIMS

 

Time: 11:05 PM

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
DAVID MICHAEL FOUST, JR., Docket No. 2017-03-0832
Employee,
v.
PINNACLE DELIVERY SERVICE,

)
)
) State File No. 54975-2017
)
Uninsured Employer. )

Judge Pamela B. Johnson

 

EXPEDITED HEARING ORDER
DENYING WORKERS’ COMPENSATION BENEFITS

 

This matter came before the undersigned Workers’ Compensation Judge on
September 27, 2017, for an Expedited Hearing. The central legal issues are (1) whether
David Michael Foust, Jr. demonstrated he is likely to prevail at a hearing on the merits
that he was an employee of Pinnacle Delivery Service and (2) if so, whether Mr. Foust
sufficiently demonstrated his injury arose primarily out of and in the course and scope of
his employment. For the reasons set forth below, the Court holds Mr. Foust is likely to
prevail in establishing he was an employee of Pinnacle; however, he failed to
demonstrate his injury arose primarily out of his employment. Therefore, the Court
denies his claim at this time.

History of Claim

On July 6, 2017, Mr. Foust alleged he and coworker Melinda Mills delivered
flooring to a local residence in west Knoxville, Tennessee. While moving a 1,700-pound
pallet up a steep incline, Mr. Foust slipped, fell, and injured his left knee. The same day,
he reported the injury to Pinnacle’s office manager, Mike McCoy. Mr. Foust testified
that he may be wrong on the date and the incident may have occurred on July 5, 7, 8, or
9. Pinnacle’s bills of lading indicated Mr. Foust made deliveries with driver Tony Mills
on July 6 in Crossville, Tennessee and surrounding towns; Mr. Foust did not make any
deliveries in Knoxville that day. Pinnacle’s bills of lading for July 7 showed Mr. Foust
made deliveries in Byrdstown, Tennessee; Mr. Foust did not make any deliveries in
Knoxville that day. According to the Expedited Request for Investigation report, Ms.
Mills denied that Mr. Foust rode with her when he was injured.

il
On July 13, Mr. Foust saw Nurse Practitioner Christina Sanks at Cherokee Health
Systems and reported he injured his /eft knee at work two weeks ago while pulling a
pallet jack of flooring up a steep incline. He further reported that he kept aggravating his
knee as he continued to work. Following examination of the right knee, Nurse Sanks
diagnosed Mr. Foust with acute right knee pain and ordered x-rays. Nurse Sanks placed
Mr. Foust off work at that time. The next day, Mr. Foust completed x-rays of his left
knee at Outpatient Diagnostic Center, which demonstrated negative findings. Mr.
Foust’s medical providers subsequently recommended an MRI, but Mr. Foust did not
obtain the test due to lack of funds. On July 25, Mr. Foust sought care at the University
of Tennessee Medical Center emergency department. Physician’s Assistant Gregory A.
Finch diagnosed left knee pain and discharged Mr. Foust with prescriptions for
Meloxicam and Prednisone.

Mr. Foust continued working for Pinnacle following the work incident, despite
doctor’s orders to remain off work. He worked most of July and some in August. He
received his last paycheck from Pinnacle on August 12. Since then, he has not worked
due to pain and difficulty walking.

Regarding the employment relationship, Mr. Foust testified he began working for
Pinnacle in 2015 as a W-2 employee. In the spring of 2016, he transitioned to a 1099
worker, and Pinnacle did not withhold taxes. As a 1099 driver, Mr. Foust received $575
straight pay per week. Following several accidents in the company truck, Mr. Foust lost
the ability to drive and rode as a passenger to help another driver make deliveries. He
earned $500 straight pay per week as a helper, and Pinnacle deducted $100 per day for
any day not worked.

Greg Dupes, sole owner and proprietor of Pinnacle, testified Pinnacle owned the
delivery trucks and leased the trucks to drivers.’ Pinnacle also owned all the delivery
equipment. Pinnacle paid for the fuel, repairs, insurance, and maintenance costs.

The Expedited Request for Investigation Report stated eight individuals worked
for Pinnacle in varying capacities. All eight workers received 1099 straight pay with
deductions for days missed. Pinnacle scheduled the deliveries but gave workers a choice
of available delivery routes. Pinnacle controlled the power to terminate workers and also
required Mr. Foust and his co-workers to wear a uniform bearing the company name.
Pinnacle did not carry workers’ compensation insurance, claiming that its workers were
all independent contractors not employees.

 

'Mr. Foust testified that he appeared for x-rays and Outpatient Diagnostic personnel indicated Nurse
Sanks ordered right knee x-rays. He advised Outpatient Diagnostics that he injured his left knee.
Outpatient Diagnostics personnel contacted Nurse Sanks’ office, which then ordered left knee x-rays.

* Pinnacle did not introduce any lease agreements.
Findings of Fact and Conclusions of Law

At an Expedited Hearing, Mr. Foust must come forward with sufficient evidence
from which this Court can determine that he is likely to prevail at a hearing on the merits.
See McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6,
at *9 (Mar. 27, 2015).

(1) Mr. Foust demonstrated he is likely to prevail at a hearing on the merits he was an
employee of Pinnacle Delivery Service

The Workers’ Compensation Law instructs the Court to consider the following
factors when determining whether an injured worker is an employee or an independent
contractor:

(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.

Tenn. Code Ann. § 50-6-102(12)(D)(i) (2016). 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. Smiley v. Four Seasons Coach Leasing, Inc., et
al., 2016 TN Wrk. Comp. App. Bd. LEXIS 28, at *10-11 (July 15, 2016). The fact that a
company did not deduct social security or income taxes is not a controlling factor in
deciding whether an employer-employee relationship existed. Jd.

Here, the factors demonstrate Mr. Foust was an employee of Pinnacle when
considering all relevant factors and circumstances of the relationship. Pinnacle controlled
the deliveries and the right to hire and fire helpers. Pinnacle also owned the delivery
trucks and delivery equipment and paid for the fuel, repairs, insurance, and maintenance
costs. Payment by 1099 without withholding taxes is not controlling when the Court
considers the totality of the evidence. The Court finds Mr. Foust was an employee of
Pinnacle for workers’ compensation purposes. Thus, the Court holds Mr. Foust came
forward with sufficient evidence demonstrating he is likely to prevail at a hearing on the
merits in establishing he was an employee of Pinnacle. The Court makes no finding as to
whether a covered employment exists under Tennessee Code Annotated section 50-6-
106.
(2) Mr. Foust failed to demonstrate his injury arose primarily out of and in the course
and scope of his employment with Pinnacle Delivery Service

An injury must arise primarily out of and occur in the course and scope of the
employment to be compensable under the Workers’ Compensation Law. See Tenn. Code
Ann. § 50-6-102(14). The term “injury” is defined as “an injury by accident . . . arising
primarily out of and in the course and scope of employment, that causes death,
disablement or the need for medical treatment of the employee.” Id. For an injury to be
accidental, it must be “caused by a specific incident, or set of incidents, arising primarily
out of and in the course and scope of employment, and is identifiable by time and place
of occurrence.” Jd.

The record is unclear when and where the alleged work incident occurred. Mr.
Foust testified he injured himself in west Knoxville, Tennessee, when he pushed a pallet
up a steep incline. He indicated the incident occurred on July 6, 2017, while working
with Melinda Mills. Ms. Mills denied she worked with Mr. Foust when he injured
himself. Pinnacle bills of lading demonstrated Mr. Foust did not work in Knoxville,
Tennessee on either July 6 or 7. Mr. Foust admitted that he could be wrong on the date;
the incident may have occurred on July 5, 7, 8, or 9. The July 13 office note from
Cherokee Health indicated Mr. Foust reported the work incident happened two weeks
prior to the visit. Based upon the evidence available at this time, the Court must conclude
that Mr. Foust failed to demonstrate he is likely to prevail at a hearing on the merits
proving a specific incident, identifiable by time and place of occurrence.

Therefore, as a matter of law, the Court denies Mr. Foust’s request for benefits at
this time.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Foust’s claim against Pinnacle Delivery Services for the requested benefits is
denied at this time.

2. This matter is set for a Scheduling Hearing on December 14, 2017, at 9:30 a.m.
Eastern Time. The parties must call 865-594-0091 or 855-543-5041 toll-free to
participate in the Scheduling Hearing. Failure to appear by telephone may result
in a determination of the issues without the party’s participation.
ENTERED the 3rd day of October, 2017.

Ke PMc

PAMELA B. JOHNSON, JUDGE
Court of Workers’ Compensation Claims

APPENDIX

Technical Record:

1.
2. Dispute Certification Notice
3.

4. Notice of Filing

Petition for Benefit Determination

Request for Expedited Hearing

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.

Exhibits:

9.

SN DAR WN >

Affidavit of David Michael Foust, Jr.

Expedited Request for Investigation Report

Medical Record of Cherokee Health Systems

Medical Record of Outpatient Diagnostic Center

Medical Record of University of Tennessee Medical Center

Wage Records

July 6, 2017 Bills of Lading, Map, Driving Directions, and Distances
Sprint Telephone Records for July 6 and 7, 2017, and Text Message
Text Messages on July 17, 2017

10. July 7, 2017 Bills of Lading
11. Text Message
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 the 3rd day of

 

 

 

 

October, 2017.
Name Certified | Fax | Email | Service sent to:
Mail
Glen B. Rutherford, xX erutherford@knoxlawyers.com
Employee’s Attorney
Pinnacle Delivery xX X | Greg Dupes, owner

Service,
Self-Represented
Employer

 

 

 

 

 

2132 Bainbridge Way
Knoxville, Tennessee 37849
g.dupes@pinnacledeliveryservice.com

 

 

PO Sheer! pesca

PENNY SHIRUM, Court Clerk ‘
WC.CourtClerk@tn.gov

 
