                                                                                                 FILED

                                                                                            October 11, 201 7

               TENNESSEE BUREAU OF WORKERS' COMPENSATION                                     TN COURT OF
                                                                                              WORKERS'
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                                                                                            COJ\!IPENSATION
                               AT MEMPHIS                                                        CLAIMS

                                                                                             Time 3:03 P.M .
ANTHONY TERRY,                                          )       Docket No. 2016-08-1054
         Employee,                                      )
                                                        )
v.                                                      )       State File No. 73704-2016
WHALEY'S TOWING,                                        )
         Uninsured Employer.                            )
                                                        )       Judge Allen Phillips


                   EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


       Anthony Terry claimed he fell on a tow truck owned by Whaley on July 27, 2016,
and requested medical and temporary disability benefits. Mr. Terry asserted he was
Whaley's employee; Whaley contended Mr. Terry was an independent contractor and
questioned whether the injury occurred. The Court conducted an Expedited Hearing on
September 27, 2017, and based on the evidence submitted holds Mr. Terry was Whaley's
employee on the date of injury, that he came forward with sufficient proof of his injury,
and that he is entitled to some of the requested medical benefits.

                                            History of Claim

      Mr. Terry drove a tow truck for Whaley. He claimed he fractured his right leg and
hip when he fell on the deck of a "rollback 1" truck. The legal issues involved the
employment relationship and the circumstances of the injury itself.

                                       Employment relationship

        Mr. Terry worked for Whaley for several months. He kept a Whaley truck at his
home and responded to service calls for tows and tire repairs. Generally, a Whaley
dispatcher would contact Mr. Terry by text message to provide the location and nature of
a call and an estimate of the time needed to complete it. Mr. Terry could then contact the

       1
           A "rollback" tow truck uses an inclined deck to load and transport vehicles.

                                                            1
customer, or the customer's insurance carrier, if he needed to adjust his arrival time or
modify the fee because of what he found at the scene. 2

       Mr. Terry said he remained "on-call 24/7," and, based on his experience, "all
wrecker companies do it" that way. He said he had to accept all dispatched accident calls
or face termination, but he admitted to rejecting some non-accident assignments because
of personal reasons. Regardless, he believed Whaley could terminate him at any time.

       Mr. Terry said he never performed towing work on his own with a Whaley truck,
and any other work he did during his Whaley's tenure was "not [a] per se job, [but]
somebody [might] bring by a car and I would fix it for them." He disputed that Whaley's
proffer of an advertisement for mechanic services that bore his name proved he had his
own repair business, but he explained the ad actually promoted his son's business. That
same son helped him with Whaley assignments on a few occasions, but otherwise Mr.
Terry felt bound to request that other Whaley drivers help him if needed.

       Mr. Terry's compensation was thirty percent of the tow fees. Copies of checks
placed into evidence were for various amounts, but each stated the payment was for
"contract labor." Mr. Terry said he simply cashed the checks and did not know what
"contract labor" meant. He believed he and the other drivers were employees, just as he
believed three "girls in the office" and a "shop manager" were employees.

       David Whaley, the owner of Whaley's Towing, countered Mr. Terry's assertions.
Mr. Whaley contended all of his drivers were independent contractors and he paid them
that way; their commissions were clearly marked on the checks as "contract labor." He
explained it was within the driver's control of how to make the calls and perform the
work. They were not required to work only for him, and they could utilize any helper
they wanted. His drivers were "their own boss" and most, if not all drivers at the time of
the accident, had other jobs, such as firefighting and delivering appliances. He had
"probably" fourteen drivers at the time and maintained "files" on them not because they
were employees, but because "Federal" regulations required he keep records of driver's
licenses and "health cards" for commercial vehicle operators.

       Mr. Whaley produced text messages that indicated Mr. Terry did mechanic work
for others at the same time he worked for Whaley. Further, he said Mr. Terry told him
that he helped his son with mechanic work and Mr. Terry performed some mechanic
work for Mr. Whaley during the time he drove his tow trucks.

       Mr. Whaley's testimony was consistent with Mr. Terry's to the extent that his
dispatchers called or texted the drivers with assignments. He confirmed the dispatchers
told the drivers of the fee, the "time out," and the nature of the call. He confirmed Mr.

      2
          For example, the tow might require the use of special equipment that would add to the cost.

                                                        2
Terry's testimony that the driver might have to adjust times and fees depending upon the
circumstances.

       Jerry Barham testified he was the longest-tenured driver for Whaley and believed
he was an independent contractor. Whaley pays him by commission, and at the outset of
his relationship with Whaley, Mr. Barham owned his own tow truck and actually
competed with Whaley.

                                          Accident

      As to the accident, Mr. Terry testified Whaley dispatched him to a tire repair call
where he found a car with two blown tires. He determined the car would need to be
loaded onto the rollback truck and started pulling the tow cables from the truck. Seeing
he needed more cable, he stepped onto the bed of the truck, slipped and fell.

       Teresa Grant, the owner of the car, testified by deposition. She said the tow truck
driver came to her work and began attaching tow cables to her car. She went inside her
office and later returned to find the driver lying on the ground yelling for help. He said he
thought he broke his leg. She called an ambulance. Ms. Grant noted that the driver
exhibited no signs of physical problems when he arrived and that he arrived alone. She
confirmed she did not see the fall.

       Whaley contested the occurrence of the event by producing a text message from
Mr. Terry saying, "I'll go try [to do the call but] I'm down in my back" after falling off
his porch the night before. Mr. Terry described twisting his back when he fell from the
porch, and he specifically denied injuring his leg or hip. The date and time of the text
message is unclear.

       Chelsea Pruitt was a dispatcher at Whaley and saw Mr. Terry the morning of the
incident. He was limping about the office so severely that she thought he should go
home. His son was with him, and Mr. Terry told her that his son might help him to make
any service calls. She confirmed on cross-examination that Mr. Terry's text message
mentioned only that Mr. Terry injured his back in the fall from the porch.

        Whaley also introduced evidence that Mr. Terry had a history of criminal
convictions for theft and that he had made claims against other employers for falls that it
argued were questionable. It produced an affidavit from an alleged former employer who
said Mr. Terry made a false injury claim. Mr. Terry disputed that he had worked for that
individual, but instead he worked for the affiant's father. He denied prior injuries to his
right leg and hip.




                                                 3
        The ambulance transported Mr. Terry to Methodist Hospital where he underwent
surgery to repair fractures to his right leg and hip. He claimed his injury was so obvious
that it required no medical proof. He has not worked since the date of the accident but
placed neither medical bills nor records detailing his missed time into evidence.

                           Findings of Fact and Conclusions of Law

                                       Standard applied

       Mr. Terry must come forward with sufficient evidence from which the Court can
determine he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-
239(d)(l) (2016).
                         Employee vs. Independent Contractor

       Tennessee Code Annotated section 50-6-102(12)(D)(i) directs the Court 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[.]

       However, these factors are not absolutes, but merely a means of analysis.
Thompsen v. Concrete Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 3, at *15 (Feb.
l 0, 2015). Moreover, no single aspect is conclusive, but instead "the trier of fact must
examine all relevant factors and circumstances" of the relationship. Boruff v. CNA Ins.
Co., 795 S.W.2d 125, 127 (Tenn. 1990). If Mr. Terry establishes the existence of an
employment relationship under these factors, then it becomes Whaley's burden to prove
he was an independent contractor. Galloway v. Memphis Drum Serv., 822 S.W.2d 584,
586 (Tenn. 1991). The Court will examine the statutory criteria in turn.

                                        (a) Right of control

       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. Peters v. Jonathan Mitchell, 2016 TN Wrk. Comp. App. Bd. LEXIS 7, at *9
(Feb. 8, 2016). "[T]he relevant inquiry [is] whether the right existed, not whether it was
exercised." Thompsen, at * 15.


                                                   4
       In Peters, the Appeals Board found the employer "instructed [the employee]
where and when to report to work" and provided him a "list of tasks" to perform. The
employer in that case also provided a timeframe and ensured the assigned tasks were
completed. Peters, at *9. Here, Whaley instructed Mr. Terry where his assignments were
located and told him the nature of the job. It provided the timeframe in which he should
perform the job and it maintained ultimate responsibility for the satisfaction of the
customer. This control exercised by Whaley is dispositive, not the driver's control over
the minutiae of hooking cables and moving cars. Thus, the Court finds this factor
supports an employment relationship.

                                   (b) Right of termination

        The power of an employer to terminate the employment at any time is
incompatible with full control of the work as usually enjoyed by an independent
contractor, and hence is a strong circumstance supporting an employment relationship. ld
at* 10. Here, Whaley could have terminated Mr. Terry at any time, and he had no right to
advance notice of termination and no employment contract. Id. at * 11. The Court finds
this factor supports a finding of an employment relationship.

                                   (c) Method ofpayment

        The Court finds this factor supports a finding of an independent contractor
relationship. The evidence establishes Mr. Terry did not receive a regular weekly wage
like an employee but instead received a per-job payment like an independent contractor.
The checks were all marked "contract labor." However, the method of payment does not
control, even when it suggests an independent contractor relationship, when other factors
strongly suggest a different characterization. Star.flight, Inc. v. Thoni, 773 S.W.2d 908,
910 (Tenn. 1989). Here, the Court finds the other factors strongly support a different
characterization.

                           (d) Freedom to select and hire helpers

       The Court finds this factor supports a finding that Mr. Terry was an employee. Mr.
Terry testified he might have sought help from others but did not, apart from asking his
son for help on occasion. Otherwise, he would have sought "helpers" from other Whaley
drivers if he needed help. This arrangement appears to be conducting work in tandem
with other employees rather than selecting one's own helpers to complete a task.




                                               5
                                   (e) Furnishing of tools

       This factor strongly supports an employment relationship. Specifically, Whaley
provided the tools of the trade, namely the trucks driven by Mr. Terry and the other
drivers. Mr. Whaley testified he paid for fuel and routine maintenance.

                                     (/) Self-scheduling

      This factor supports an employment relationship. Whaley received and
coordinated the service calls performed by Mr. Terry. Mr. Terry kept a Whaley vehicle at
his home and worked only when dispatched to do so. He had no control over when, or if,
Whaley might call him to perform work. Whaley instructed Mr. Terry when to appear for
towing work and told him how long the service should take. See Peters, at *10.

                           (g) Freedom to offer services to others

      The Court accredits Mr. Whaley's testimony that Mr. Terry and all other drivers
might perform work for others. He explained that most of his drivers hold other jobs and
Whaley did not bind them to specific, set hours.

       However, the evidence also shows Mr. Terry remained in possession of Whaley's
truck and was on call "24/7." Nothing in the proof indicates a different relationship
between Whaley and the other drivers. The Court finds no evidence that any Whaley
driver, as of July 27, 2016, performed tow work for others. To the contrary, the proof
shows the drivers' other work was of a totally different nature.

       In so finding, the Court considers Mr. Barham's testimony that he started working
for Whaley when he might have been considered a "competitor." However, as noted, the
Court finds no evidence that Mr. Terry or any other driver was working as a tow truck
driver for himself or others as of the date of injury.

       Based upon the statutory factors, the Court holds Mr. Terry came forward with
sufficient evidence to show he would likely prevail at a hearing on the merits that he was
an employee of Whaley.
                                       Medical benefits

       Under the Workers' Compensation Law, "the employer or the employer's agent
shall furnish, free of charge to the employee, such medical and surgical treatment . . .
made reasonably necessary by accident[.]" Tenn. Code Ann. § 50-6-204(a)(l)(A).
Employers are also required to offer a panel of physicians "from which the injured
employee shall select one (1) to be the treating physician." Tenn. Code Ann. § 50-6-
204(a)(3)(A)(i).


                                               6
       At this interlocutory stage, the Court holds Mr. Terry would likely prevail at a
hearing on the merits in proving a compensable injury. The medical records contain a
diagnosis of a fractured hip, a description of a fall on a tow truck, and the specific
treatment rendered for his injury. The only disinterested witness, Ms. Grant, testified Mr.
Terry did not appear injured on the morning of the accident until she found him lying on
the ground in obvious pain. She also noted he was alone; neither his son nor another
helper was present in contravention of Whaley' s proof.

       The Court considered the challenges to Mr. Terry's credibility, both as to prior
injury claims and his criminal record. It also notes Mr. Terry was a poor historian.
However, under the burden he carries at this interlocutory stage, the Court finds his
account of the injury the most believable. He admitted to having back pain from an
incident at home, but the severity of a fractured hip is not compatible with his
demonstrated abilities on the morning of his claimed fall.

        Because Whaley denied the claim, Mr. Terry was forced to seek treatment on his
own. Fairness requires that Mr. Terry need not change providers at this stage, and the
Court finds it appropriate to designate Dr. Murrell, the treating surgeon, as the authorized
treating physician. Mr. Terry produced no evidence of incurred medical expenses, and the
Court may not order payment of any bills.

                                  Temporary disability benefits

        To establish entitlement to temporary benefits, Mr. Terry must show he (1)
became disabled from working due to a compensable injury, (2) a causal connection
between the injury and his inability to work, and (3) the duration of the period of
disability. Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at
*7 (Dec. 11, 2015). At this stage, Mr. Terry offered no proof of the required elements,
and the Court denies his request for temporary disability benefits.

                                   Uninsured Employer Fund

        The Bureau has discretion to pay limited temporary disability and medical benefits
from the Uninsured Employers Fund to an employee who: 1) worked for an employer
who failed to secure payment of compensation; 2) suffered an injury primarily arising in
the course and scope of employment on or after July 1, 2015; 3) was a Tennessee resident
on the date of the injury; and, 4) "provided notice to the bureau of the injury and of the
failure of the employer to secure the payment of compensation within a reasonable period
of time, but in no event more than sixty (60) days after the date of the injury[.]" Tenn.
Code Ann. § 50-6-80l(d)(l)-(4).



                                                7
        Based on the evidence, the Court finds Mr. Terry was a Tennessee resident on July
27, 2016, and was an employee of Whaley for purposes of the Tennessee Workers'
Compensation Law. As of July 27, 2016, Whaley failed to secure workers' compensation
insurance. Mr. Terry suffered his injury after July 1, 2015, and the Court holds he is
likely to prevail at hearing on the merits that his injury arose primarily out of and in the
course and scope of his employment with Whaley. Mr. Terry provided notice to the
Bureau within sixty days of the date of injury by the filing of a Petition for Benefit
Determination on September 23, 2016, that described both his injury and noted that
Whaley was uninsured.

       IT IS, THEREFORE, ORDERED as follows:

   1. Whaley shall provide Mr. Terry with ongoing medical treatment under Tennessee
      Code Annotated section 50-6-204(a)(3) with Dr. Murrell. Mr. Terry or Dr. Murrell
      shall provide the medical bills to Whaley.

   2. The Court denies Mr. Terry's requests for all other benefits at this time.

   3. This matter is set for a Scheduling (Status) Hearing on Thursday, November 16,
      2017, at 10:00 a.m. Central time. You must call 731-422-5263 or toll-free 855-
      543-5038 to participate in the Hearing.


ENTERED this the 11th day of October, 2017.




                                                                    pensation Claims




                                                8
                                          APPENDIX

     Exhibits:
•I

        1.  Bureau's Expedited Request for Investigation Report
        2.  Deposition of Teresa Grant
        3.  Medical Records of Methodist Healthcare
        4.  Affidavit of Dan Baskin
        5.  Copies of Mr. Terry's paychecks from Whaley
        6.  Copy of text message between parties regarding independent mechanic work by
            Mr. Terry
        7. Screenshot of purported advertisement for Mr. Terry's repair business
        8. Copy of text message between parties regarding freedom to accept or decline
            towing job
        9. Copy of text message between parties regarding Mr. Terry's report ofinjury at
            home on day prior to alleged injury date
        10. Page from Bureau Investigative Report detailing past alleged work injuries
            sustained by Mr. Terry
        11. Copy of text message between parties purporting to show personal use of Whaley
            equipment by Mr. Terry
        12. Photograph depicting location of tow truck at scene of alleged accident
        13. Copy of Mr. Terry's alleged criminal record
        14. Copy of text message between parties purporting to show independent nature of
            mechanic work performed by Mr. Terry for Whaley
        15. Copy of text message between parties purporting to show method of payment for
            work
        16. (Duplicate of Exhibit 14)
        17. Photographs of deck of tow truck


     Technical record:

        1. Petition for Benefit Determination
        2. Dispute Certification Notice
        3. Request for Expedited Hearing
        4. Order Granting Additional Time Following Show Cause Hearing and Denying
           File Review Expedited Hearing
        5. Whaley's Pre-Hearing Statement
        6. Mr. Terry's Pre-Hearing Statement




                                                  9
                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Expedited Hearing Order was sent
to the following recipients by the following methods of service on this the 11th day of
October, 201 7. ·

Name                           Certified     First      Via     Service Sent To:
                                Mail         Class     Email
                                             Mail
Emily B. Bragg, Esq.,                                    x     ebragg@forthepeople.com
Attorney for Employee
William A. Wooten, Esq.,                                 x     wawooten@gmail.com
Attorney for Employer



                                                     ))µ~ /
                                     Pe    ~~m,   Clerk of Court
                                     Court of Workers' Compensation Claims
                                     WC.CourtClerk@tn.gov




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