                                                                                                           FILED
                                                                                                        l\llay 24,. 2016

                                                                                                         TN COURT OF
                                                                                                 "\:VOR.KER.S' COMPE NSATION
                                                                                                              CLAD IS

                                                                                                          Time: UJ>:.it.9' AM

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

Seyed Koshkebaghi,                                             )   Docket No.: 2015-06-1155
           Employee,                                           )
v.                                                             )   State File Number: 74360-2015
Bell Auto Sales, Inc.,                                         )
             Employer.                                         )   Judge Kenneth M. Switzer


         EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


       This case came before the undersigned workers' compensation judge on the
Request for Expedited Hearing filed by the employee, Seyed Koshkebaghi, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is
whether the employer, Bell Auto Sales, is subject to the Workers' Compensation Law.
For the reasons set forth below, the Court finds Bell is an employer pursuant to the statute
and Mr. Koshkebaghi is entitled to the relief he seeks. 1

                                                History of Claim

       Mr. Koshkebaghi is a forty-one-year-old resident of Davidson County, Tennessee.
He worked at Bell Auto Sales as a shop manager, where his duties were to test-drive
vehicles and, if necessary, order parts to make them ready for sale. On July 6, 2015, he
test-drove a vehicle and, upon completion, noticed liquid dripping from beneath it. When
he opened the hood to investigate the leak, the radiator hose immediately shot liquid into
his face, burning his face and eyes.

      Mr. Koshkebaghi testified he first went to the Southern Hills emergency room, and
then required eight days' hospitalization at Vanderbilt (See generally Ex. 3) and
approximately one month at home to recuperate from his injuries. He still takes
medication related to the injury, and his doctor told him he might permanently suffer

1
 A complete listing of the technical record and exhibits admitted at the expedited hearing is attached to this order as
an appendix. Mr. Koshkebaghi primarily speaks Farsi. A state-registered court interpreter, Mousa Sadreddini,
provided interpretation services during the expedited hearing.


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after-effects from this accident. Although Bell cross-examined Mr. Koshkebaghi
extensively regarding the mechanism of injury, Bell ultimately agreed Mr. Koshkebaghi
suffered a work-related injury.

       Concerning the circumstances of Mr. Koshkebaghi's employment, he testified six
employees worked for Bell on the date of injury: 1) Dariush Alibaigi; 2) Jamshid
(surname unknown to Mr. Koshkebaghi); 3) an unidentified salesperson; 4) "Choui," a
mechanic; 5) "Parham," a vehicle washer; and 6) himself. He does not know how Bell
paid the others. According to Mr. Koshkebaghi, they all reported to work in the morning
and left late in the afternoon.

        Alireza Nourabadi, a/k/a AI Rabiei, 2 testified he is Bell's owner and his company
is an active Tennessee corporation. According to him, at the time of Mr. Koshkebaghi' s
injury, Bell did not have five salaried employees. He acknowledged the following three
individuals as employees: 1) Jamshid Goshtasvi, a salaried bookkeeper; 2) Dariush
Alibaigi, a salaried and commission-based salesperson; and 3) Jesus Cadena, a/k/a
"Choui," a mechanic. He testified the other salesperson, "Victor" (surname unknown),
was paid commission only and he is no longer employed at Bell. According to Mr.
Rabiei, Mr. Parham was paid a flat rate per vehicle washed, and he denied that Mr.
Parham kept regular hours at Bell but rather Mr. Parham was "on-call." For tax purposes,
both Victor and Mr. Parham received 1099s rather than W2s.

      Mr. Koshkebaghi filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. 3 The parties did not resolve the disputed issues through
mediation, and the mediating specialist filed a Dispute Certification Notice. Mr.
Koshkebaghi filed a Request for Expedited Hearing, and this Court heard the matter on
May 18,2016.

        Mr. Koshkebaghi waived entitlement to past temporary total disability benefits at
the expedited hearing. 4 The parties stipulated Mr. Rabiei paid Mr. Koshkebaghi's
emergency room bill. According to Mr. Koshkebaghi, his private health insurance paid
the bills for hospitalization at Vanderbilt.

2
  The Petition for Benefit Determination (T.R. I) lists Mr. Nourabadi as Bell's contact person. Mr. Nourabadi
testified this is his legal name, but he goes by the name "AI Rabiei," and "Rabiei" is his middle name. Throughout
the expedited hearing, Bell's counsel referred to him as Mr. Rabiei, and since it is his preference, the Court will also
refer to him in that fashion throughout this order.
3
  Mr. Koshkebaghi filed an earlier Petition for Benefit Determination regarding injuries allegedly sustained on the
same date of injury, but the Court dismissed the petition without prejudice to its refiling. See generally T.R. 1-4.
4
  To be precise, after much questioning on cross-examination regarding Mr. Koshkebaghi's entitlement to past
temporary total disability benefits, he stated, "I have never asked for money." Bell's counsel characterized this
statement as a waiver. The Court, likewise, interprets this statement as a waiver of past temporary total disability
benefits at the expedited hearing stage, but notes the language barrier might have played a role in the exchange. Mr.
Koshkebaghi is not foreclosed from seeking such benefits at the compensation hearing.

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                               Findings of Fact and Conclusions of Law

       In order to grant the relief Mr. Koshkebaghi seeks, the Court must apply the
following legal principles. Mr. Koshkebaghi 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.
Koshkebaghi 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). At an expedited hearing, Mr.
Koshkebaghi 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.

       Tennessee Code Annotated section 50-6-102(13) (2015) defines an "employer" as
"any individual, firm, association or corporation ... using the services of not less than
five (5) persons for pay." Further, the Workers' Compensation Law does not apply "[i]n
cases where fewer than five (5) persons are regularly employed[.]" Tenn. Code Ann. §
50-6-106(5) (2015). The five-person requirement for employers has been in place almost
since the very beginning of workers' compensation in Tennessee. See generally Ezell v.
Tipton, 264 S.W. 355 (Tenn. 1924). For almost as long, the Workers' Compensation
Law has placed the burden of proof on the claimant to show the employer used the
services of five or more persons. See King v. Buckeye Oil Co. , 296 S. W. 3 (Tenn. 1927).

       The statute additionally states, '"Employee' includes every person ... in the
service of an employer, as defined in subdivision (13), under any contract of hire[]"
Tenn. Code. Ann. § 50-6-102(12)(A) (2015) (emphasis added). In Garner v. Reed, the
full Tennessee Supreme Court cited The American Heritage Dictionary of the English
Language to define the word "hire" as "to engage the services of a (a person) for a fee; to
employ." Garner v. Reed, 856 S.W. 698, 700 (Tenn. 1993). 5 The Garner Court held, "In
order for one to be an employee of another for purposes of our Worker's 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
former." !d. The Court went on to quote Professor Larson's treatise to observe, "the
word 'hire' connotes payment of some kind." !d. at 701.



5
 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court' s decision or rationale relied on a remedial interpretation of pre-
July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063 , 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).


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       Applying these legal principles to the facts of this case, the Court finds Bell
employed a minimum of five persons on the date of injury. The parties do not dispute the
employee status of 1) Mr. Koshkebaghi, 2) the bookkeeper, 3) the salesperson (Dariush)
and 4) the mechanic. This leaves Victor and Mr. Parham. By Mr. Rabiei's own
admission, Bell paid Victor on a commission basis. The Court finds this payment-by-
commission arrangement to be an "agreement for the ... employer to remunerate the ...
employee for his services in behalf of the former," as explained in Garner. Therefore,
Victor was an employee. Further, Mr. Rabiei conceded paying Mr. Parham based upon
the number of vehicles he washed. Whether he worked full- or part-time, maintained
predictable work hours, or had wages withheld for tax purposes are considerations that
bear no legal significance under Garner. 6 Thus, Mr. Koshkebaghi has come forward with
sufficient evidence from which this Court concludes he is likely to prevail at a hearing on
the merits regarding Bell's status as an employer subject to the Workers' Compensation
Law.

       Turning now to the requested relief, the parties agreed at this time there are no
outstanding medical bills for past care. Mr. Koshkebaghi testified he requires ongoing
medical care. He further testified, without objection, that his physician told him he might
suffer a permanent disability as a result of the workplace incident.

        Ordinarily when an employee reports a work-related accident resulting in injury,
the Court orders the employer to offer a panel of three or more independent, reputable
physicians in the injured employee's community from which the employee selects one to
be the treating physician. See Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) (2015). However,
in this case, according to Mr. Koshkebaghi's testimony, he continues to see providers at
Vanderbilt, who presumably possess complete knowledge of the injury and treatment
progress to date. Common sense dictates they continue to serve as his treatment provider,
rather than ordering Bell to provide a panel of physicians who are unfamiliar with his
history. The Court reviewed the Vanderbilt records and notes multiple physicians,
including ophthalmologists, evaluated Mr. Koshkebaghi, but at the hearing, he did not
identify which Vanderbilt physician provides ongoing outpatient care. That physician
shall be designated as the authorized treatment provider, and Bell shall furnish, free of
charge to Mr. Koshkebaghi, the medical treatment he or she deems reasonably necessary
by the workplace accident. See Tenn. Code Ann.§ 50-6-204(a)(l)(A) (2015).




6
  The Court additionally observes that the Workers' Compensation Panel, relying upon Garner, held when a
corporate officer received payment from a corporation, it "statutorily qualifies him as an employee of the
corporation." Douglas v. Graves Gold Leaf Gallery, No. 02SO 1-980 1-CH-000 11, 1998 Tenn. LEX IS 454, at *4-7
(Tenn. Workers' Comp. Panel Sept. I, 1998). In this case, Mr. Rabiei testified he is the "owner" of Bell, but neither
party questioned him regarding whether Bell compensated Mr. Rabiei at the time of Mr. Koshkebaghi's injury.
Therefore, on the record presently before this Court, it cannot find Mr. Rabiei as an additional employee for
purposes of whether the Workers' Compensation Law applies.

                                                          4
IT IS, THEREFORE, ORDERED as follows:

   1. Bell shall provide Mr. Koshkebaghi with additional medical treatment at
      Vanderbilt for his injuries as required by Tennessee Code Annotated section 50-6-
      204 (2015). Mr. Koshkebaghi or Vanderbilt shall furnish Bell the medical bills for
      prompt payment.

   2. Mr. Koshkebaghi's request for past temporary total disability benefits is denied at
      this time.

   3. This matter is set for an Initial (Scheduling) Hearing on July 11, 2016, at 9:45a.m.

   4. 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)
      (2015). The Insurer or Self-Insured Employer must submit confirmation of
      compliance      with    this     Order    to   the    Bureau     by    email     to
      WCCompliance.Program@tn .g v 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. For
      questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.

ENTERED this the 24th day of May, 2016.




Initial (Scheduling) Hearing:

       An Initial (Scheduling) Hearing has been set with 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
your further participation.




                                            5
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
      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

                                            6
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 Seyed Koshkebaghi
   2. Vanderbilt Medical Center statement of account, for identification only
   3. Vanderbilt medical records

Technical record: 7
   4. Petition for Benefit Determination
   5. Dispute Certification Notice
   6. Show Cause Order
   7. Order to Dismiss
   8. Petition for Benefit Determination
   9. Dispute Certification Notice
   8. Request for Expedited Hearing




7
   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.




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                            CERTIFICATE OF SERVICE

        I hereby certify 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 24th day of May,
2016.


Name                         Regular    Via         Via     Service sent to:
                             Mail       Fax         Email
Seyed Koshkebaghi,            X                       X     ak13532000@gmail. com; 437
Self-represented                                            Mountain High Drive, Cane
Employee                                                    Ridge TN 37013
Bob Travis,                   X                             107 S. Greenwood St., Suite B,
Employer's Counsel                                          Lebanon TN 37087




                                                             ~~
                                         Pe       n~, Clerk of Court
                                         Court of  rkers' Compensation Claims
                                         WC.Cou rtClerk@tn.gov




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