             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

James Keaton Austin                                ) Docket No. 2017-07-0161
                                                   )
v.                                                 ) State File No. 15013-2017
                                                   )
American Land and Timber                           )
                                                   )
                                                   )
Appeal from the Court of Workers’                  )
Compensation Claims                                )
Amber E. Luttrell, Judge                           )

                    Affirmed and Remanded—Filed December 1, 2017

The claimant suffered an amputation of his thumb while working for the purported
employer in its sawmill. The employer did not dispute the claimant’s account of the
injury but denied the claim on the basis the claimant was an independent contractor.
Following an expedited hearing, the trial court concluded the claimant was likely to
prevail at trial in establishing he was an employee, rather than an independent contractor,
and ordered the employer to pay his medical expenses. The employer has appealed. We
affirm the trial court’s decision and remand the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.

Benjamin Harmon, Savannah, Tennessee, for the employer-appellant, American Land
and Timber

Edward Martindale, Jr., Jackson, Tennessee, for the employee-appellee, James Keaton
Austin

                                     Memorandum Opinion1

      James Austin (“Claimant”) suffered a traumatic amputation of his left thumb while
working for American Land and Timber (“American”), a sawmill. The parties stipulated
1
 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.

                                                   1
that the injury arose primarily out of and occurred in the course of Claimant’s work at the
sawmill and that the medical expenses incurred as a result of that injury were reasonable
and necessary.

        The sole issue on appeal is whether there is sufficient evidence that Claimant was
an employee of American at the time of his injury.2 In deciding that he was an employee,
the trial court observed:

       [Claimant] performed work at an hourly wage from seven a.m. to five p.m.
       weekly, and Mr. Jones [owner of the sawmill] paid him weekly by check
       from American Land and Timber. Mr. Jones provided all tools and
       equipment and exerted control by directing [Claimant] where to work on
       any given day. Mr. Jones further controlled the right to hire and fire
       helpers. Payment by 1099 without withholding taxes is not controlling
       when the Court considers the totality of the evidence.

       American has appealed, arguing there is “no indication that Mr. Jones exerted
control over the work being done.” It further argues that Claimant was given a Form
1099 for income tax purposes, that it was “impractical or impossible for [Claimant] to
furnish his own tools and equipment,” and that American did not determine what hours
workers were required to be present. We find these arguments unpersuasive.

       Tennessee Code Annotated 50-6-102(12)(D)(i) (2017) sets out various factors to
consider in determining whether an injured worker is an employee or an independent
contractor. These factors include: (1) “[t]he right to control the conduct of the work”; (2)
“[t]he right of termination”; (3) “[t]he method of payment”; (4) “[t]he freedom to select
and hire helpers”; (5) “[t]he furnishing of tools and equipment”; (6) the “[s]elf-scheduling
of working hours”; and (7) “[t]he freedom to offer services to other entities.” Id.
However, these factors “are not absolutes that preclude examination of each work
relationship as a whole and are no more than a means of analysis.” Smiley v. Four
Seasons Coach Leasing, Inc., Nos. 2016-06-0104 & -0105, 2016 TN Wrk. Comp. App.
Bd. LEXIS 28, at *10 (Tenn. Workers’ Comp. App. Bd. July 15, 2016). Further,

       [w]hile no single factor is determinative, the Tennessee Supreme Court has
       repeatedly emphasized the importance of the right to control, the relevant
       inquiry being whether the right existed, not whether it was exercised.


2
  At the expedited hearing, Claimant sought payment from the Uninsured Employers Fund pursuant to
Tennessee Code Annotated section 50-6-801 (2017). However, the trial court denied Claimant’s request
for benefits from the Uninsured Employers Fund because Claimant had not informed the Bureau of
Workers’ Compensation of the injury and the employer’s failure to provide benefits within sixty days as
required by that statute. Claimant has not appealed that determination and, accordingly, we do not
address the issue.

                                                  2
        Moreover, determining whether an individual is characterized as an
       employee or an independent contractor for workers’ compensation purposes
       requires a specialized factual analysis. No single aspect of a work
       relationship is conclusive in making this determination, and in deciding
       whether a worker is an employee or independent contractor, the trier of fact
       must examine all relevant factors and circumstances of the relationship.
       The fact that a company did not deduct social security or income taxes is
       not a controlling factor in deciding whether an employer-employee
       relationship existed.

Id. at *10-11 (citations and internal quotation marks omitted).

       The proof presented at the expedited hearing establishes that Claimant would not
have been able to hire his own helpers. Rather, that was the exclusive province of Mr.
Jones, American’s owner. Also, Claimant testified that he was required to report to work
at a certain time and work a certain number of hours. Although Mr. Jones testified that
workers were able to come and go whenever they chose, the trial court credited
Claimant’s testimony. When the trial court has seen and heard the witnesses, we give
considerable deference to the court’s factual findings. Id. at *21. Furthermore, the proof
establishes that American provided all tools, equipment, and materials necessary to
perform the work, and that Mr. Jones instructed Claimant where to report for work each
day. While American argues that Mr. Jones did not exert the requisite control over
Claimant’s work, we note that the “relevant inquiry [is] whether the right [to control]
existed, not whether it was exercised.” Id. at *10-11.

        At an expedited hearing, an injured worker must come forward with enough
evidence to establish he or she is likely to prevail at a hearing on the merits. Tenn. Code
Ann. § 50-6-239(d)(1) (2017). A trial court’s conclusions in that regard are given a
presumption of correctness unless the preponderance of the evidence is otherwise. Tenn.
Code Ann. § 50-6-239(c)(7). The evidence in this case does not preponderate against the
trial court’s conclusion that Claimant was an employee of American. Accordingly, we
affirm the decision of the trial court and remand the case.




                                             3
                      TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                        WORKERS’ COMPENSATION APPEALS BOARD


James K. Austin                                              )   Docket No.   2017-07-0161
                                                             )
v.                                                           )   State File No. 15013-2017
                                                             )
American Land and Timber                                     )


                                         CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 1st day of December, 2017.
 Name                        Certified   First Class   Via   Fax      Via     Email Address
                             Mail        Mail          Fax   Number   Email

 Edward L. Martindale, Jr.                                              X     edwardlmartindale@gmail.com
                                                                              rachalmwallace@gmail.com
 Benjamin Harmon                                                        X     benharmonlaw@gmail.com
 Amber E. Luttrell, Judge                                               X     Via Electronic Mail
 Kenneth M. Switzer,                                                    X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                    X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
