                                                                                     FILED
                                                                                   Jul 17, 2019
                                                                                  02:31 PM(CT)
                                                                               TENNESSEE COURT OF
                                                                              WORKERS' COMPENSATION
                                                                                     CLAIMS




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

Robert Kent,                                 ) Docket No. 2018-06-1969
            Employee,                        )
                                             ) State File No. 81424-2018
v.                                           )
Delatorre Art Design, Inc.,                  ) Judge Kenneth M. Switzer
             Employer.                       )


       EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


       Robert Kent alleged injuries while working for Delatorre Art Design and
requested a panel of physicians. Mr. Kent asserted he was Delatorre's employee;
Delatorre contended he was an independent contractor. The Court conducted an
expedited hearing on July 12, 2019, and holds that Mr. Kent was an independent
contractor and is not likely to prevail at a hearing on the merits regarding his request.

                                     History of Claim

        Mr. Kent, a Florida resident, worked as a rock-technician artist for Delatorre at the
Nashville Zoo and injured his shoulder on October 20, 2017. Per his affidavit, Mr. Kent
also repeatedly scratched himself on the job with rebar and tire wire, resulting in a staph
infection. He still suffers shoulder pain and residual problems from the infection. Mr.
Kent received unauthorized medical treatment for these injuries.

       Delatorre denied the claim, asserting that Mr. Kent was an independent contractor.
The hearing testimony revolved almost exclusively on the parties' recollection of Mr.
Kent's employment status.

       Mr. Kent testified that Mike Torres, owner of Delatorre, contacted him in May
2017 to help work on a project involving the creation of several themed exhibits at the
Nashville Zoo. Mr. Kent understood he was hired for this one project only. Mr. Torres
admitted he told Mr. Kent the work would be forty hours per week or more. Mr. Torres
offered $40 per hour. Mr. Kent asked if he would receive a per diem. Mr. Torres

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declined but said he would pay Mr. Kent's hotel expenses and agreed to $43 per hour.
Mr. Kent said he knew and liked the other artists working on the project. According to
Mr. Torres, the artists' work requires specialized skills, and those who can perform the
work are a small community.

        Mr. Kent testified that Mr. Torres was his supervisor. Mr. Torres determined the
daily tasks and informed him which area of the zoo he would be working at every day.
Mr. Kent agreed that Mr. Torres conveyed "the overall artistic vision of the zoo" and did
not tell him what to do "hour to hour." For his part, Mr. Torres said that he did not direct
how to sculpt or texture the rock, he trusted Mr. Kent to make independent decisions and
hired him on the basis of his experience "so [he] wouldn't have to oversee or hover over
someone' s back."

       Mr. Torres agreed he was responsible for the final product to the zoo but stated he
did not remain on the jobsite every time Mr. Kent worked. Mr. Torres explained that as
the "art director" of the entire project, he wanted to make sure it reflected "continuity
throughout the zoo."

       As for payment, Mr. Kent said Mr. Torres decided that he would pay him weekly
by direct-deposit check and withhold taxes rather than have Mr. Kent submit an invoice.
Mr. Torres kept track of Mr. Kent's hours. According to Mr. Torres, Mr. Kent did not
want to invoice him. Mr. Torres agreed to put him on the payroll at Mr. Kent's request
and "for his convenience."

       Mr. Kent further stated that Mr. Torres set the work hours from 7:00 a.m. until
3:30p.m. Monday through Friday. He said he was not free to show up or leave when he
wanted to and said he would have "probably gotten fired" by Mr. Torres if he had. He
further stated he arrived after 7:00 a.m. a few times and "sometimes he'd [Mr. Torres]
say something about it." He was never disciplined for arriving late but believed it was
possible.

       In contrast, Mr. Torres recalled that he did not require Mr. Kent to work at those
times. Instead, he hired "day laborers" to assist him and other artists during those hours.
Mr. Torres conceded on cross-examination that he expected Mr. Kent to stay until 3:30
each day. Mr. Torres maintained that Mr. Kent had the ability to work past 3:30 and
sometimes did. He said he would not care if Mr. Kent arrived at 8:00 a.m. or even noon,
but "it just affects the work getting done" because the laborers were onsite to assist
during those hours. Mr. Torres denied setting Mr. Kent's work schedule.

        At some point, Mr. Kent missed work because he was sick. He called Mr. Torres
at the outset to say he was ill and unable to work, but he did not call in the next two days
that he missed. Mr. Torres recalled the same event as follows: Mr. Kent left work on a


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Friday, never called in and returned on Thursday, worked a half-day on Friday, and then
was out the entire next week because Mr. Kent returned to Florida.

       Mr. Kent testified that he was not able to hire assistants. Mr. Torres said Mr. Kent
could have done so but would have had to pay them. Mr. Kent never asked to hire
anyone but recommended prospective hires to Mr. Torres. The parties agreed Mr. Torres
had the right to terminate Mr. Kent.

       Mr. Kent acknowledged he brought his own "small, specialty tools," but Mr.
Torres provided the "main, major tools."

       Mr. Kent further testified that he was not free to work for other entities while
working for Delatorre. Mr. Torres, however, said "there was no understanding as to
exclusivity."

                          Findings of Fact and Conclusions of Law

       Mr. Kent must present sufficient evidence from to show he is likely to prevail at a
hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2018). Tennessee Code
Annotated section 50-6-102(12)(D)(i) directs courts to consider the following factors
when determining whether an individual 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[.]

The Appeals Board characterized the right to control the conduct of the work as the most
significant factor when determining whether one is an employee or independent
contractor. Thompsen v. Concrete Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 3, at
*14 (Feb. 10, 2015).

       Applying each factor, Mr. Torres credibly testified that he instructed Mr. Kent
which area of the zoo he was to work on each day, but he did not tell him how to sculpt,
texture or create the artificial rocks. Mr. Torres hired him because Mr. Kent was an artist
with that particular skill set. Mr. Torres's explanation that he oversaw the entire project
and set daily work areas strikes the Court as Mr. Torres merely fulfilling his
responsibility to the zoo to lead and execute the project, fulfilling his role as art director
and ensuring continuity throughout the zoo. He did not always remain onsite or closely
scrutinize Mr. Kent's work as a supervisor might in the typical employment setting.

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       The Tennessee Supreme Court explained, "[A] party to a contract can exercise
direction and control over the results of the work without destroying the independence of
the contract or creating an employer-employee relationship." Wright v. Knox Vinyl &
Aluminum Co., 779 S.W.2d 371, 373 (Tenn. 1989). Further, an independent contractor is
"one who undertakes to produce a given result without being in any way controlled as to
the methods by which he attains that result." Galloway v. Memphis Drum Serv., 822
S.W.2d 584, 587 (Tenn. 1991). Here, Mr. Torres directing Mr. Kent where to work is not
equivalent to telling him how to work. Thus, the right to control the conduct of the work
- the most significant factor - favors a finding that Mr. Kent was an independent
contractor.

       As for the right of termination, in this case, Mr. Torres could have terminated Mr.
Kent at any time. However, "the fact that the contractor retained the right to fire the
worker from any job site if he did not like the manner in which [the worker] was
performing the work does not ipso facto create an employee-employer relationship."
Wright, at 374.

      As for the method of payment, this factor generally supports a finding of an
employment relationship because Mr. Torres paid him wages via W-2 rather than a 1099
and withheld taxes. The Supreme Court in Starjlight, Inc. v. Thoni, 773 S.W.2d 908, 909
(Tenn. 1989) cautioned, "This, however, is only one factor among a number of indicia
which are relevant to the determination of the relationship from a legal standpoint."

        Concerning the freedom to select and hire helpers, Mr. Kent testified that he did
not hire helpers but recommended prospective hires to Mr. Torres. Mr. Torres agreed but
clarified that Mr. Kent never asked to hire helpers and could have done so at his own
expense. The Court finds this factor favors neither party.

      As to the furnishing of tools, this factor also favors neither party. Mr. Kent
brought and used his sculpting tools, as apparently is common in his field, but Mr. Torres
provided the "main, major tools" for the project.

        Regarding scheduling, the Court finds that while Mr. Torres expected Mr. Kent to
arrive at 7:00 a.m. and leave at 3:30 p.m. so he could work with other artists and the
laborers, he did not require this. An expectation and a requirement are not synonymous.
Mr. Kent acknowledged that when he arrived past 7:00 a.m., Mr. Torres commented on
it, but he suffered no discipline or other adverse consequence. More telling on this point
is Mr. Kent's testimony that he did not feel obligated to call in sick every day when that
occurred, which is generally expected of employees. Further, Mr. Torres testified that
Mr. Kent occasionally worked past 3:30p.m. The Court finds that Mr. Torres did not set
Mr. Kent's work hours. This factor favors the existence of an independent contractor
relationship.

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      Finally, regarding the freedom to offer services to others, Mr. Torres testified he
hired Mr. Kent with no understanding as to exclusivity. He further testified that he told
Mr. Kent he could offer him forty hours of work. This factor favors neither party.

        The majority of the factors that favor one party or the other, especially the element
on controlling the work activities, supports the existence of an independent contractor
relationship. Thus, the Court holds Mr. Kent failed to present sufficient evidence that he
would likely prevail at a hearing on the merits that he was an employee of Delatorre.

IT IS, THEREFORE, ORDERED as follows:

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

   2. This case is set for a status conference on September 4, 2019, at 9:00 a.m.
      Central time. You must call 615-532-9552 or toll-free 866-943-0025 to
      participate. Failure to call might result in a determination of the issues without the
      party's participation.

ENTERED July 17, 2019.




                                   Court of Workers' Compensati




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                                        APPENDIX

Exhibits:
   1. Mr. Kent's Affidavit
   2. W-2
   3. Employer's Responses to Requests for Admissions

Technical Record:
   1. Petition for Benefit Determination
   2. Employee Position Statement to Mediator
   3. Employer Position Statement to Mediator
   4. Dispute Certification Notice and Employee' s additional issues
   5. Request for Scheduling Hearing
   6. Order on Scheduling Hearing
   7. Employee's Motion to Extend Deadline for Employee to Identify Medical Experts
   8. Order Granting Motion to Extend
   9. Request for Expedited Hearing
   10. Order Setting Expedited Hearing
   11. Employee's Pre-Hearing Brief
   12. Employer's Pre-Hearing Statement

                            CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent as indicated on July 17, 2019.

          Name              Certified    Email    Service sent to:
                             Mail
Adam Selvidge,                            X       adam@reasonoverlaw .com
Employee's Attorney
Brent Morris,                             X       bmorris@wimberlylawson.com
Rosalia Fiorello,                         X       rfiorello@wimberlylawson.com
Employer's Attorneys




                                              PENNY SHRUM, OURT CLERK
                                                  wc.courtclerk@tn.g v




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