            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT KINGSPORT

Michael C. Richards,                           )   Docket No. 2016-02-0436
            Employee,                          )
v.                                             )   State File No. 64483-2016
                                               )
A-1 Expert Tree Service,                       )   Judge Brian K. Addington
            Employer,                          )
And                                            )
                                               )
Riverport Ins. Co.,                            )
              Carrier.                         )


                           EXPEDITED HEARING ORDER


        This matter came before the undersigned Workers' Compensation Judge on
March 1, 2017, upon the Request for Expedited Hearing filed by Michael Richards for
temporary disability benefits. The central legal issue is whether Mr. Richards' present
average weekly wage and compensation rate are correct. The corresponding benefit
dispute concerns whether Mr. Richards is entitled to additional temporary disability
benefits. The Court holds Mr. Richards has come forward with sufficient evidence to
establish he is likely to prevail at a hearing on the merits. Therefore, he is entitled to the
requested temporary disability benefits.

                                     History of Claim

       Mr. Richards worked for A-1 Expert Tree Service intermittently since 2008. He
performed many jobs for A-1 but primarily drove the grabber truck and picked up debris
to take to a dumpsite. He suffered a compensable injury on July 30, 2016, when his foot
slipped exiting the grabber truck. A-1 accepted Mr. Richards' workers' compensation
claim. He is currently receiving authorized medical treatment, but a dispute arose over
his average weekly wage and compensation rate. The employer paid Mr. Richards
temporary benefits in the amount of $151.91 per week.
                            Mr. Richards' Version ofEvents

       Mr. Richards testified that, after a brief period working for a different employer,
he returned to work for A-1 in August 2015. He asserted that A-1 paid him ten dollars
per hour, and he worked forty hours per week or more. He requested A-1 's owner, David
Williams, pay him in cash, as it helped him clear more take-home pay. On cross-
examination, he admitted during some weeks he worked fewer than forty hours, but
worked more than forty hours during others. In addition, he perfonned odd jobs at Mr.
Williams' home and at the homes of Mr. Williams' relatives. Mr. Richards stated that
those work hours were not listed on his timecard, because he would not go to the office
and clock-in before he started work. Mr. Richards acknowledged that, other than the
timecards placed into evidence, he had no documentary evidence of the hours he worked.

                       Ms. Christy Tomlinson's Version of Events

      Ms. Tomlinson is Mr. Richards' girlfriend. She testified she often took him to
work and/or picked him up. She testified he worked a full-time schedule of at least forty
hours per week for most of the year before the work injury. However, she also
acknowledged that Mr. Richards worked fewer than forty hours per week on occasion,
depending on the work available. Further, Ms. Tomlinson stated she assisted Mr.
Richards in accounting for both his work hours at A-1 and his owed wages.

                         Mr. Wayne Frazier's Version of Events

       Mr. Frazier is a friend of Mr. Richards who, at times, employed him to perform
work on his farm. Mr. Frazier testified he would, on occasion (twelve to fifteen times per
year), pick up Mr. Richards from work at A-1. He always picked Mr. Richards up in the
evenmg.

                        Ms. Brenda Richards' Version of Events

       Ms. Richards is Mr. Richards' mother. She testified she would take Mr. Richards
to and from work at A-1 four to five times per week, dropping him off in the morning and
picking him up in the evening.

                             Mr. Williams' Version ofEvents

      Mr. Williams testified Mr. Richards returned to work for A-1 in August 2015. He
worked until his injury occurred and earned ten dollars per hour. Mr. Williams paid Mr.
Richards in cash. According to Mr. Williams, Mr. Richards was not a full-time
employee; he worked only as needed. Mr. Williams testified that the earnings listed on
Mr. Richards' typed wage statement contain all the records A-1 possessed concerning
Mr. Richards' wages. When Mr. Richards worked at Mr. Williams' or his relatives'

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homes, his work was not part of his duties for A-1. Mr. Williams testified his relatives
paid Mr. Richards separately for his work.

                                  Parties' Arguments

      During the hearing, Mr. Richards contended his average weekly wage was at least
$400.00 per week, but he did not give an exact figure. He asserted his timecards and
witnesses proved he worked more than forty hours per week. He requested the Court
determine his proper average weekly wage and corresponding compensation rate,
because A-1 was paying his temporary benefits at the wrong amount.

       A-1 acknowledged that it initially determined the wrong average weekly wage and
compensation rate for Mr. Richards, explaining it excluded some information in its
calculations. However, A-1 argued the typed, amended wage statement it submitted was
correct, and that Mr. Richards' correct average weekly wage was $244.09 with a
corresponding $162.74 compensation rate. A-1 asked the Court to set the rates at these
amounts. It acknowledged if the rate were set at this amount, it would have underpaid
Mr. Richards $339.48.

                       Findings of Fact and Conclusions of Law

        As in all workers' compensation actions, Mr. Richards, as the claimant, has the
burden of proof on all essential elements of his claim. Tenn. Code Ann. § 50-6-239(c)(6)
(20 16); see also Buchanan v. Car lex Glass Co., 2016 TN Wrk. Comp. App. Bd. LEXIS
39, at *5 (Sept. 29, 2016). He 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, 2016 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2016). However, at an expedited hearing, Mr. Richards has the burden to come
forward with sufficient evidence from which this Court can determine he is likely to
prevail at a hearing on the merits. !d.

        The dispute in this case concerns Mr. Richards' average weekly wage and
corresponding compensation rate. Average weekly wages are the earnings of an
employee in the employment in which he was injured during a period of fifty-two weeks
preceding the date of injury. Tenn. Code Ann. § 50-6-102(3)(A) (2016). For this case,
the fifty-two weeks in question cover the period from July 29, 2015, to July 29, 2016.
Mr. Richards' temporary total disability benefit rate is two-thirds of his average weekly
wage for that period. See Tenn. Code Ann. § 50-6-207(1 )(A) (20 16).

      For some reason not apparent to the Court, the parties did not attempt to introduce
any written evidence of Mr. Richards' earnings for the entire fifty-two week period, but
focused only on the weeks from January 1, 2016, until Mr. Richards' injury. When asked
by the Court whether the parties had engaged in any discovery, both parties

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acknowledged they had not.

        The parties have a duty to provide the Court with information from which the
Court can make appropriate findings of fact. According to Tennessee Compilation Rules
and regulations 0800-02-21-10 (3) (2016), an employer shall provide a wage statement
detailing the employee' s wages over the fifty-two week period in question. A-1 offered
no excuse for its failure to detail Mr. Richards' wages for the entirety of the period in
question. Mr. Richards did not inquire into the employer's failure.

     · After asserting that A-1 miscalculated his average weekly wage, Mr. Richards
assumed the burden to come forward with sufficient evidence to prove his correct
average weekly wage. Instead, Mr. Richards agreed with A-1 that the timecards
presented were the only available written records on the subject. Only one timecard
presented indicated Mr. Richards worked more than forty hours per week. The rest
showed he worked fewer than forty hours. The remainder of his proffered evidence was
comprised of his own and his witnesses' testimony. None of the witnesses provided any
specific dates on which they took him to work and/or picked him up from work. Their
testimony constituted general statements with no details upon which the Court could base
a finding of fact. The Court cannot use such general statements to supplement the written
proof in this matter.

        As such, this Court is presented with an incomplete wage statement from the
employer. However, at this time, the provided wage statement is the best evidence the
Court has of Mr. Richards' average weekly wage for the relevant period. It contains the
written proof 1 as acknowledged by the parties, of Mr. Richards' wages from January 1,
2016, until the date of his injury. However, the Court must remove the last week listed
on the wage statement because it contains wages Mr. Richards' earned on the day of his
. .     2
InJUry.

      Based on the available information, the Court holds that Mr. Richards is likely to
succeed at a hearing on the merits, but not at the rate he requested. The Court holds Mr.
Richards earned average weekly wages of $250.00 per week, and further holds that his
compensation rate is $166.67 .

IT IS, THEREFORE, ORDERED as follows:

      1. Mr. Richard's average weekly wage is $250.00 per week, and his compensation
         rate is $166.67. A-1 shall pay Mr. Richards any underpayment based on these
         figures.

1
    Mr. Ri chards asserted there were more timecards, but he did not have possession of them.
2
    Average weekly wages, as stated before, are determined by the fifty-two week period preceding the
InJUry.

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2. This matter is set for a Scheduling Hearing on April 11, 2017, at 10:00 a.m.
   Eastern Time. The parties must call 855-943-5044 toll-free to participate in the
   hearing. Failure to appear by telephone may result in determination of the issues
   without your further participation.

3. Unless interlocutory appeal of the Expedited Hearing Order is filed,
   compliance with this Order must occur no later than seven business days
   from the date of entry of this Order as required by Tennessee Code
   Annotated section 50-6-239(d)(3) (2016). The Insurer or Self-Insured
   Employer 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 of compliance may result in a
   penalty assessment for non-compliance.

4. For questions regarding compliance, please contact the Worker's Compensation
   Compliance Unit via email WCCom pliancc.ProgramraJ.tn. g or by calling (615)
   253-1471 or (615) 532-1309.



                              ENTERED this the 6th day of March, 2017.


                               Is/ Brian K. Addington
                              Judge Brian K. Addington
                              Court of Workers' Compensation Claims




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                                     APPENDIX

Exhibits:
       1. Affidavit of Michael Richards
       2. First Report of Injury
       3. Wage Statements
       4. Medical Records-Associated Orthopedics
       5. Timecards
       6. Cell Phone Text
       7. Affidavit of Christy Tomlinson
       8. Affidavit of Wayne Frazier
Technical Record
       1. Petition for Benefit Determination
       2. Employer's Response to Petition for Benefit Determination
       3. Dispute Certification Notice
       4. Request for Expedited Hearing
       5. Employee's Pre-Hearing Statement
       6. Employer's Pre-Hearing Statement




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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 6th
                                                                                 _day of
March, 20 17.

Name                          Certified   Via    Via    Service sent to:
                               Mail       Fax   Email
Larry Dillow, Esq.                                X     larrylawyer@chartertn.net
Employee's Attorney
Nicholas Snider, Esq.                            X      nsnider@morganakins.com
Employers' Attorney




                                           Is/ Penny Shrum
                                          PENNY SHRUM, Court Clerk
                                          WC.CourtCierk@tn.gov




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