                                                                                                   FILED
                                                                                                 lVIay 11,. 2 016

                                                                                               TN COUKf OF
                                                                                          " ORKIKS' CO:UPINSATIO N
                                                                                                  CLAIUS

                                                                                                  Time: 2:51 PM

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

James Black,                                            )    Docket No.: 2015-06-0423
            Employee,                                   )
v.                                                      )    State File Number: 752014
Prestige Group, LLC                                     )
            Employer.                                   )    Chief Judge Kenneth M. Switzer
                                                        )

         EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


      This case came before the undersigned workers' compensation judge on the
Request for Expedited Hearing filed by the employee, James Black, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is the
compensability of Mr. Black's claim and in particular whether he worked for the
Employer, Prestige Group, LLC, as a statutory employee. For the reasons set forth
below, the Court finds Mr. Black failed to satisfy his burden to show he was an
employee, thereby precluding any liability of Prestige Group's part at this time. 1

                                             History of Claim

       Mr. Black is a forty-six-year-old resident of Montgomery County, Tennessee. He
allegedly worked at Prestige Group, a general contractor, as a laborer. The job began in
late August 2014. Mr. Black's unrefuted testimony is that on September 3, 2014, as he
was "working lot clean-up" he lit a "bum pile" of refuse from a construction site on
Abednego Road in Springfield, Tennessee.

       Mr. Black sustained multiple bums and required treatment at Northcrest Medical
Center, which ordered his transport via EMS to Vanderbilt Medical Group. Mr. Black
introduced no medical records into evidence regarding his treatment, but stated he fully
recovered from the accident, other than some residual scarring. Mr. Black sought to
introduce three medical bills into evidence relative to his treatment. Prestige Group did
not object to the bills' authenticity, but objected to their admissibility as proof of the
1
  A complete listing of the technical record and exhibits admitted at the hearing is attached to this Order as an
appendix.
necessity or reasonableness of the charges. The Court sustained the objection and
admitted them into evidence for identification purposes only.

       Mr. Black testified that Prestige Group's owner, Marco Hernandez, paid him via
check on one occasion prior to the accident. He did not introduce a copy of a cancelled
check or a pay stub into evidence. Mr. Black was initially unable to recall his rate of pay,
but subsequently testified he earned $100 per day.

      Mr. Hernandez testified he helped Mr. Black out while Mr. Black was between
jobs. Mr. Black's principal occupation for the last fifteen years is a chef/restaurant
manager. According to Mr. Hernandez, Mr. Black called him and asked for work.
Because he had no work available, Mr. Hernandez told Mr. Black that a colleague/friend,
Tony Spain, could use some help. Mr. Spain owns the Abednego Road property. Mr.
Hernandez told Mr. Black to go to the Abednego Road worksite. Mr. Hernandez denied
paying Mr. Black for work there.

       Mr. Hernandez explained that Mr. Spain is part owner of a cabinetry business, and
they conducted business for approximately five or six years, during which time they
became friends. When Mr. Spain began construction on the Abednego Road site, he
frequently consulted with Mr. Hernandez to help him find subcontractors. However,
according to Mr. Hernandez, there was no contract between them relative to the project,
and Mr. Hernandez did not pay the subcontractors. Mr. Hernandez conceded that
Prestige did some work on the project, including some of the trim, hardwood floors and a
deck, which work Mr. Black did not perform. Mr. Hernandez additionally acknowledged
his name, rather than Mr. Spain's, was on the building permit for the jobsite.

       On the day of Mr. Black's injury, Mr. Hernandez said he was not present. Mr.
Hernandez said he was at the Abednego Road work site with Mr. Black the day before
the accident took place, and everyone was "picking up" when Mr. Black announced he
would return the next day to do more clean-up work. Mr. Hernandez denied telling Mr.
Black what to do and in particular telling him to light the bum pile.

       Mr. Black filed a Petition for Benefit Determination. The parties did not resolve
the disputed issues through mediation, and the Mediating Specialist filed a Dispute
Certification Notice designating compensability and Mr. Black's entitlement to medical
and temporary disability benefits as disputed issues. 2 Mr. Black filed a Request for
Expedited Hearing, and this Court heard the matter on May 9, 2016. At the hearing, upon
the close of evidence, Prestige Group moved for a directed verdict, which motion the
Court took under advisement but now denies. 3
2
 The Court considers the additional issues checked on the Dispute Certification Notice but not addressed at the
expedited hearing as waived.
3
    In Burclifield v. Renfree, 2013 Tenn. App. LEXIS 685 (Tenn. Ct. App. Oct. 18, 2013), the Court of Appeals

                                                         2
       Mr. Black argued that he "was told where to be, when to be there, and what to do"
by Mr. Hernandez as the basis of his assertion that he was an employee. No one
communicated to him that he was working for Mr. Spain, and at all times before the day
of the accident, he believed he worked for Prestige Group. Prestige Group countered no
employment relationship existed between it and Mr. Black because Mr. Black introduced
no proof that it compensated him, nor did he know his rate of pay or the amount of
payment received. Rather, Mr. Black came to work for Mr. Spain when he was between
jobs in his typical line of work, restaurant management.

                               Findings of Fact and Conclusions of Law

        The following legal principles govern whether Mr. Black is entitled to the relief he
seeks. In general, Mr. Black bears the burden of proof on all prima facie elements of his
workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also
Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *5 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). Mr. Black 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). Rather, at an expedited hearing, Mr. Black has the burden to come
forward with sufficient evidence from which the trial court can determine whether he is
likely to prevail at a hearing on the merits. !d.

       The Workers' Compensation Law defines "employee" as "every person, including
a minor, whether lawfully or unlawfully employed . . . under any contract of hire or
apprenticeship, written or implied." Tenn. Code Ann. § 50-6-102(11)(A) (2015). "In
order for one to be an employee of another for purposes of our Workers' Compensation
Law, it is, therefore, required that there be an express or implied agreement for the
alleged employer to remunerate the alleged employee for his services in behalf of the

reiterated the principles regarding directed verdicts:

         The rule for determining a motion for directed verdict requires the trial judge and the appellate
         courts to look to all of the evidence, take the strongest, legitimate view of the evidence in favor of
         the opponent of the motion and allow all reasonable inferences from it in his favor. The court
         must disregard all countervailing evidence and if there is then any dispute as to any material,
         determinative evidence or any doubt as to the conclusions to be drawn from the whole evidence,
         the motion must be denied. The court may grant the motion only if, after assessing the evidence
         according to the foregoing standards, it determines that reasonable minds could not differ as to the
         conclusions to be drawn from the evidence.

!d. at *86-87 (internal citations omitted). In this case, the Court finds that reasonable minds can differ as to the
conclusions to be drawn from the evidence, and therefore a directed verdict was not warranted. Further, Prestige
Group's motion should be styled as a motion to dismiss, as directed verdicts are appropriate in the context of jury
trials rather than bench trials.


                                                           3
former." Black v. Dance, 643 S.W.2d 654, 657 (Tenn. 1982).

        Here, the Court must rely solely on the testimony of the parties in reaching its
determination. Per Black, the Court looks to evidence of an express or implied agreement
that Mr. Hernandez would pay Mr. Black for his services. Mr. Black offered no
testimony regarding the conversation between Mr. Hernandez and himself to evidence
that Mr. Hernandez hired him as a Prestige employee. In contrast, Mr. Hernandez
testified he told Mr. Black he had no work to offer, and directed him to see Mr. Spain for
work. Mr. Black's sole proof of compensation is his testimony that Mr. Hernandez paid
him, but he failed to produce any written documentation such as a cancelled check or pay
stub. Moreover, his testimony was indecisive on this point: Initially, Mr. Black was
unsure of the rate of pay. Mr. Hernandez denied paying Mr. Black for work done at
Abednego Road. Further, Mr. Black's only proof that he performed services on behalf of
Mr. Hernandez is his testimony that he reported to work at an appointed time and place
and performed tasks under Mr. Hernandez's direction. Mr. Hernandez denied this. In
sum, on the evidence presently before the Court, it cannot conclude Mr. Black carried his
burden to show that he will likely succeed at a hearing on the merits regarding his status
as an employee. Because Mr. Black has not established he is an employee, the Court
must deny his requests at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Black's claim against Prestige Group 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 July 11, 2016, at 9:15a.m.
      Central time.

       ENTERED this the 11th day ofMay, 2016.



                                   enneth M. Switzer, Ch1ef Jud
                                  Court of Workers' Compensati

Initial (Scheduling) Hearing:

        An Initial (Scheduling) Hearing has been set with Chief Judge Kenneth M.
Switzer, Court of Workers' Compensation Claims. You must call 615-532-9552 or
toll-free at 866-943-0025 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

                                            4
your further participation.

Right to Appeal:

       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

                                            5
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.




                                     6
                                                     APPENDIX

Exhibits:
   1. Affidavit of James Black
   2. Notice of Denial, October 24, 2014
   3. Medical bill, Robertson County EMS, $933.50: Marked for identification only
   4. Medical bill, Vanderbilt Department of Pharmaceutical Services, $18.3 2: Marked
       for identification only
   5. Medical bill, Vanderbilt medical Group, $3,856.00: Marked for identification only

Technical record: 4
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




4
    The Court considered factual statements in these filings as allegations unless established by the evidence.




                                                             7
                            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 11th day
ofMay, 2016.

Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
James Black,                                      X     1ameswblack 1@gmai !.com
Self-represented
Employee
Michael Haynie,                                   X     mha ~nie @manierherod .com
Employer's Counsel




                                                                                    (
                                                                                     f




                                            8
