                                                                                                 FILED
                                                                                               Apr 26, 2019
                                                                                               07:49 AM(CT)
                                                                                            TENNESSEE COURT OF
                                                                                           WORKERS' COMPENSATION
                                                                                                  CLAIMS




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

TIMOTHY MAYS,                                          )   Docket Number: 2018-02-0659
        Employee,                                      )
                                                       )
v.                                                     )   State File Number: 93196-2018
MATTHEW PEARSON, d/b/a                                 )
HANDYMAN CONSTRUCTION,                                 )
       Employer.                                       ) Judge Brian K. Addington
                                                       )

                                  EXPEDITED HEARING ORDER
                                   DECISION ON THE RECORD


        This case came before the Court on April 24, 2019, on Mr. Mays' request for
benefits. The issue is his entitlement to medical and temporary benefits from Mr.
Pearson, an uninsured employer. For the reasons below, the Court holds that Mr. Mays is
likely to succeed at trial in proving he was an employee of an uninsured employer; he
suffered an injury that arose primarily out of and in the course and scope of his
employment; and he is entitled to medical but not temporary disability benefits.

                                             History of Claim

        Mr. Mays worked one month for Mr. Pearson remodeling homes. Mr. Mays cut
the middle and index fingers on his left hand with a table saw on September 12, 2018.
After visiting an urgent care and emergency room near Knoxville, he treated at the
emergency room in Kingsport, Tennessee. 1 Dr. Samuel Hilton diagnosed a fracture of
the index finger and multiple lacerations. Dr. Hilton stitched the lacerations and provided
splints. Later, Mr. Mays sought conservative treatment on his own with Dr. Ashraf
Youseff. His treatment cost $1,562.82.

       Concerning Mr. Mays' work, Mr. Pearson paid him by cash. The parties dispute
the total amount Mr. Mays earned, but both acknowledged he earned $10.00 per hour.

1
    The parties did not supply medical records from urgent care or the first emergency room.

                                                       1
According to the Expedited Request for Investigation Report, Mr. Pearson did not have
insurance; the injury occurred after July 1, 2015; Mr. Mays resided in Tennessee at the
time of accident; and he notified the Bureau of his injury on November 28, 2018.
Further, Mr. Pearson controlled the work, possessed the right of termination, provided the
tools and equipment, and scheduled the working hours. Following the injury, Mr.
Pearson would not let Mr. Mays return to work because he believed he was an unsafe
worker.

       Mr. Mays contended he was Mr. Pearson's employee and is entitled to medical
and temporary disability benefits from him and/or the Uninsured Employer's Fund. Mr.
Pearson countered that Mr. Mays was an independent contractor, not his employee; he
offered to pay for Mr. Mays' medical treatment but he refused; and he would not allow
Mr. Mays to return to work because he was an unsafe worker.

                       Findings of Fact and Conclusions of Law

        At an Expedited Hearing, Mr. Mays must present sufficient evidence that he is
likely to prevail at a hearing on the merits. Tenn. Code Ann.§ 50-6-239(d)(l) (2018).

       First, regarding whether Mr. Mays was an employee or independent contractor, the
evidence supports his position that he was an employee. The factors a court must
consider in determining whether a person is an employee or independent contractor are in
Tennessee Code Annotated section 50-6-102(12)(D)(i). The applicable statutory factors
are that Mr. Pearson directed the method of payment, controlled the schedule and the
work, and provided the tools. The Court holds that Mr. Mays is likely to succeed at trial
in proving he was Mr. Pearson's employee.

       Second, because Mr. Pearson did not provide medical benefits, Mr. Mays sought
treatment at the emergency room and with Dr. Youseff. Because ofMr. Pearson's failure
to provide medical benefits, Mr. Mays was reasonable in seeking his own treatment. See
Hackney v. Integrity Staffing Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *8-
9 (July 22, 2016). Because Dr. Youseff has already provided substantial care to Mr.
Mays, the Court designates him the authorized physician and orders Mr. Pearson to pay
for any reasonable and necessary medical expenses incurred due to the injury.

       Third, Mr. Mays requested temporary disability benefits. For temporary total
disability benefits, Mr. Mays must show he is likely to prove: ( 1) a disability from
working as the result of a compensable injury; (2) a causal connection between the injury
and the inability to work; and (3) the duration of the period of disability. Shepherd v.
Haren Const. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30,
2016). The medical records fail to establish that Mr. Mays could not work. Rather, the
evidence shows Mr. Pearson would not let Mr. Mays work because Mr. Pearson believed


                                            2
he was unsafe. The Court holds Mr. Mays is unlikely to succeed at trial in proving
entitlement to temporary disability benefits.

        Finally, Mr. Mays requested payment by UEF. The Court notes that it can only
issue a judgment against an uninsured employer. It is an employee's option to seek
benefits from UEF once he obtains the judgment and appeals are finished. See Tenn.
Code Ann. § 50-6-802(a). An injured employee may receive benefits from UEF if the
factors set out in Tennessee Code Annotated 50-6-803(d) are met. One of those factors
requires an employee to provide notice to the Bureau within sixty days of his injury.
Tenn. Code Ann. § 50-6-803(d)(l). However, based on the evidence, the Court finds he
failed to give notice to the Bureau within sixty days of his injury.


IT IS, THEREFORE, ORDERED as follows:

   1. The Court designates Dr. Youseff as Mr. Mays' authorized physician. Mr.
      Pearson shall pay all reasonable and necessary medical treatment provided or
      recommended by Dr. Youseff. He shall pay Dr. Youseff $1,562.82 for past
      medical treatment

   2. Mr. May's request for temporary disability benefits is denied at this time.

   3. This matter is set for a Scheduling Hearing on June 10, 2019, at 10:00 a.m. (EDT).
      You must call toll-free at 855-543-5044 to participate in the Hearing. Failure
      to call in may result in a determination of the issues without your further
      participation.

   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).
      The Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to the Bureau by email to WCCompliru1ce.Proe:ram@tn.gov 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 at
      WCCompliance_Program@ltn.gov.




                                            3
   ENTERED this the 26th day of April, 2019.


                                         IS/ Brian K. Addington
                                        BRIAN K. ADDINGTON, JUDGE
                                        Court of Workers' Compensation Claims

                                       APPENDIX
Exhibits:
   1. Mr. Mays' Affidavit
   2. Medical Records
   3. Expedited Request for Investigation Report

Technical Record:
   1. PBD
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Docketing Notice




                           CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on April 26, 20 19.

Name                       Certified   Fax       Email   Service sent to:
                           Mail
Timothy Mays,               X                            10 17 West Stone Drive,
Employee                                                 Apt. 323
                                                         Kingsport, TN 3 7660
Matthew Pearson,             X                           1794 Big Moccasin Road
Employer                                                 Nickelsville, VA 24271


                                          ./)            ffi~ ~
                                        P~ RUM, COURT CLERK
                                        w;.'"~~~~;f{;r.k@tn. gov




                                             4
                           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.
 .
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
