                                                                                       FILED
                                                                                     Sep 07, 2018
                                                                                    09:32 AM(CT)
                                                                                 TENNESSEE COURT OF
                                                                                WORKERS' COMPENSATION
                                                                                       CLAIMS




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

David Lipske,                                   ) Docket No. 2017-06-0419
            Employee,                           )
v.                                              ) State File No. 16280-2017
Adam's Wood Flooring, a/k/a Adam's              )
Hardwood Flooring,                              ) Judge Kenneth M. Switzer
          Employer.                             )
                                                )


        EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF



      This case came before the Court on September 5 on David Lipske' s Request for
Expedited Hearing. The threshold factual issue is whether Mr. Lipske was an employee
of Adam's Hardwood Flooring when he suffered a work injury. For the reasons below,
the Court holds that on the present record Mr. Lipske is not likely to prevail at a hearing
on the merits in proving that he was an employee of Adam's Hardwood Flooring.
Therefore, at this time, he is not entitled to medical and temporary disability benefits.

                                       History of Claim

       Mr. Lipske testified that Mike Shaw hired him to work for "Adam's Wood
Flooring," a/k/a Adam's Hardwood Flooring. Adam Shaw represented to the Court that
he is the owner of Adam's Hardwood Flooring, a sole proprietorship.' Mr. Lipske
understood the owner of the business was Mr. Shaw or that possibly Mr. Shaw and Mike
were business partners, although Mr. Lipske later testified that Mike said he [Mike] was
working with Adam's Wood Flooring. Mr. Lipske believed the Shaws were brothers.
Mr. Lipske acknowledged he never met Mr. Shaw in person and did not think they had
ever spoken. Mr. Lipske said he completed an employment application bearing the name
"Adam's Hardwood Flooring," which he gave to Mike. However, he did not present this
document to the Court.
1
 Because Adam and Mike Shaw have the same surnames, for clarity, the Court will refer to Adam Shaw
as "Mr. Shaw" and Mike Shaw as "Mike" in this order.

                                                1
       Mr. Lipske alleged that, after just one day's work, he injured his hand while
operating a table saw. He gave immediate notice of the injury to Mike. According to Mr.
Lipske, "The conversation I had with Michael-! told him we wasn't going to report this.
Just take care of my hospital bills and keep me working. He said, 'No problem."'
However, a few days later, according to Mr. Lipske, Mike sent a text that said, "I hope
you find a job so you can pay your bills." Mr. Lipske testified that he was paid in cash
for the time he worked, but he did not say who paid him. Adam's Hardwood Flooring
never offered a panel, paid for any treatment, or provided temporary disability benefits.

       Mr. Lipske filed a Petition for Benefit Determination, which launched an
investigation by the Bureau's Compliance Unit, culminating with a written report. The
report documented that the investigator spoke with Mr. Shaw, an Ohio resident, who
"confirmed employment for Mr. Lipske and that the injury did occur as reported." Mr.
Shaw clarified at the hearing that he meant he confirmed Mr. Lipske's employment "with
Michael Shaw." Mr. Shaw said he did not know why Mike represented to Mr. Lipske
that Mike was working for Adam's Hardwood Flooring.

        Mr. Shaw testified that Mike is not his brother but a second cousin. Mike worked
for Adam's Hardwood Flooring in Ohio for approximately four years before moving to
Tennessee. Mr. Shaw said his second cousin attempted to start his own hardwood
flooring business in the new location, forming Wolf Works LLC in 2016 and registering
it in the name of "Michael Kirk Shaw" with the Tennessee Secretary of State's Office.
Mr. Shaw acknowledged lending equipment to help with the new business.

       Mr. Shaw further stated that he had no knowledge of Mike hiring Mr. Lipske. Mr.
Shaw acknowledged that, after Mr. Lipske's accident, Mr. Shaw's attorney made a
settlement offer to Mr. Lipske's counsel. Mr. Shaw said he did so because Mike was
"scared," and "I was helping my cousin out."

      Neither party subpoenaed Mike to testify at the hearing.

                      Findings of Fact and Conclusions of Law

       At an expedited hearing, Mr. Lipske must present sufficient evidence from which
this Court might determine he is likely to prevail at a hearing on the merits. McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015); Tenn. Code Ann. § 50-6-239(d)(l) (2017).

       Specifically, Mr. Lipske must show he was Mr. Shaw's employee. The Tennessee
Workers' Compensation law defines "employee" as "every person ... under any contract
of hire or apprenticeship, written or implied." Tenn. Code Ann. § 50-6-1 02(12)(A). "In
order for one to be an employee of another for purposes of our Workers' Compensation

                                           2
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." Black v. Dance, 643 S.W.2d 654, 657 (Tenn. 1982). Mr. Lipske, as the
employee, has the burden of proof on all essential elements of his workers' compensation
claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at
*6 (Aug. 18, 20 15). This includes the burden of proving that he was employed by
Adam's Hardwood Flooring.

        Mr. Lipske credibly testified that Mike hired him, representing that Mr. Lipske
would be an employee of Adam's Hardwood Flooring. Mr. Lipske stated that he was
paid for his work before the injury, but he did not say who paid him. Under Black, this is
a critical consideration; if Mike paid him, this suggests he was Mike's employee.

        Mr. Shaw was also a credible witness. He testified that around the date of alleged
injury, Mike was starting his own hardwood flooring business in Tennessee. The filing
information for Wolf Works LLC bearing the name Michael Kirk Shaw backs this
assertion. Mr. Shaw testified that he had no knowledge of Mike hiring Mr. Lipske before
the accident. Further, the Court does not construe the settlement offer by Mr. Shaw's
attorney as an admission that he employed Mr. Lipske. These facts are not the only lack
of proof.

       Notably absent from the hearing was Mike, whose testimony would shed light on
what he said when Mr. Lipske was hired. Without it, on the present record, the Court is
unable to hold that Mr. Lipske carried his burden of showing he would likely to prevail at
a hearing on the merits in proving he was an employee of Adam's Hardwood Flooring on
the date of injury.

      IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Lipske's requested relief is denied at this time.

   2. This case is set for a scheduling hearing on November 5, 2018, at 2:30 p.m.
      Central Time. The parties must call (615) 532-9552 or (toll-free) (866) 943-0025
      to participate. Failure to appear by telephone may result in a determination of the
      issues without your further participation.

      ENTERED September 7, 2018.




                                             3
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                                     State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                                     Date of Injury: - - - -- - - - -
                                                                                                     SSN: _______ _ ______ __




                      Employee


                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
