                                                                                   FILED
                                                                                 Oct 04, 2019
                                                                                 01:00 PM(CT)
                                                                                  TENNESSEE
                                                                             WORKERS' COMPENSATION
                                                                                APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Robert Kent                                  ) Docket No. 2018-06-1969
                                             )
v.                                           ) State File No. 81424-2018
                                             )
Delatorre Art Design, Inc.                   )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Kenneth M. Switzer, Chief Judge              )

                                Affirmed and Remanded

The claimant is an artisan whose expertise is fabricating and sculpting artificial rocks for
various types of exhibits. In this case, he was working at the Nashville Zoo and alleged
he suffered a work-related injury. He contended the company that hired him to come to
Nashville to perform the work was his employer and was responsible for providing
workers’ compensation benefits as a result of his injury. The alleged employer denied
that it was responsible for providing benefits, asserting the claimant was an independent
contractor. Following an expedited hearing, the trial court determined the claimant was
an independent contractor and denied the requested benefits. The claimant has appealed.
We affirm the trial court’s decision and remand the case.

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

Adam W. Selvidge, Nashville, Tennessee, for the claimant-appellant, Robert Kent

Brent A. Morris, Nashville, Tennessee, for the respondent-appellee, Delatorre Art
Design, Inc.

                         Factual and Procedural Background

       Many of the underlying facts of this case are undisputed for purposes of this
interlocutory appeal. Delatorre Art Design, Inc. (“Delatorre”) and its owner, Mike
Torres, contract with business entities such as museums and zoos to build exhibits.
Delatorre had a contract with the Nashville Zoo (“the Zoo”) that included building certain
elements of various animal exhibits. Mr. Torres characterized himself as the art director

                                             1
of the project, and there is no dispute that the Zoo worked and communicated solely with
Mr. Torres regarding the project. Robert Kent (“Claimant”) is a resident of Florida. He
is an artisan whose craft is to fabricate and sculpt artificial rocks that are incorporated
into a variety of exhibits and displays in museums, zoos, and amusement parks.

       Delatorre hired artisans, including Claimant, to perform portions of the artistic
work at the Zoo and general laborers to provide assistance to the artisans. Claimant
alleges that on October 20, 2017, he sustained an injury to his left shoulder in the course
of his work at the Zoo. He stated in an affidavit that for several weeks before the October
20, 2017 incident, and on October 20, he was repeatedly scratched by the rebar and the
tie-wire that was used with the rebar. On October 20, 2017, he reported to Mr. Torres
that he was bending rebar and felt a pop and pain in his shoulder. Within a few days, he
was ill, and his wife took him to a Nashville hospital where he remained hospitalized for
thirty days due to an abscess and staph infection in his left shoulder. When he was
released from the hospital, he returned home to Florida where he sought and received
additional medical care. Delatorre denied Claimant’s request for workers’ compensation
benefits, asserting Claimant was an independent contractor and, therefore, not entitled to
workers’ compensation benefits. Claimant contends he was an employee of Delatorre.

       After an expedited hearing at which Claimant and Mr. Torres testified in person,
the trial court concluded Claimant was an independent contractor and denied the
requested benefits. In reaching its conclusion, the court addressed each of the factors set
out in Tennessee Code Annotated section 50-6-102(12)(D)(i) (2018) that are to be
considered in determining whether an individual is an employee, a subcontractor, or an
independent contractor.

        Addressing the right to control the conduct of the work, the court found that
Delatorre controlled Claimant’s work activities only to the extent required to ensure the
artistic vision of the Zoo was realized with respect to the appearance of the exhibits. The
court found Mr. Torres’s testimony that he considered Claimant to be a freelance artist
and that he hired him for his particular set of skills to be credible testimony. The court
also noted Mr. Torres’s testimony that, although he expected the artisans to work from
7:00 a.m. to 3:30 p.m. because that is when the laborers were on site, he did not enforce
those working hours, and the artisans were essentially able to work when and how much
they desired. The trial court found it significant that Claimant felt no obligation to call
Mr. Torres to let him know he would not be at work when he was sick. Rather, Claimant
simply did not come to work if he was ill, and he returned to work when he was better.
These factors, considered in the totality of the circumstances and in the context of the
nature of the relationship between Claimant and Delatorre, led the court to determine that
Claimant would not likely prevail at trial in establishing he was an employee.
Claimant has appealed.



                                            2
                                   Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2018).

                                         Analysis

       Claimant raises a single issue on appeal: whether the evidence supports the trial
court’s determination that he would not likely establish at trial that he was an employee
of Delatorre. Tennessee Code Annotated section 50-6-102(12)(D)(i) identifies seven
factors that are to be considered in determining whether an individual in a work
relationship 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.

Tenn. Code Ann. § 50-6-102(12)(D)(i).

       As we have previously observed,

       [t]hese factors are not absolutes that preclude examination of each
       work relationship as a whole and are no more than a means of analysis.
       While no single factor is determinative, the Tennessee Supreme Court has
       repeatedly

                                              3
       emphasized the importance of the right to control, the relevant inquiry
       being whether the right existed, not whether it was exercised.

       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.

Smiley v. Four Seasons Coach Leasing, Nos. 2016-06-0104 & -0105, 2016 TN Wrk.
Comp. App. Bd. LEXIS 28, at *10-11 (Tenn. Workers’ Comp. App. Bd. July 15, 2016)
(internal quotation marks and citations omitted).

        In the instant case, the trial court addressed each of the statutory factors in the
context of the witnesses’ testimony. The court found Mr. Torres’s testimony concerning
the right to control the conduct of the work to be credible and to support a finding that
Claimant was an independent contractor. Claimant testified that Mr. Torres was his
supervisor and determined what area of the Zoo or job site he was responsible for
completing, but he also stated that Mr. Torres’s instruction as to the work concerned the
overall artistic vision of the project as opposed to what Claimant was to do “hour to
hour.” The trial court noted that although Mr. Torres instructed Claimant where in the
Zoo he was to work each day, he did not tell Claimant how to sculpt, texture, or create
the artificial rocks. Moreover, the court observed that “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 [Z]oo to lead and execute the project, fulfilling his role
as art director and ensuring continuity throughout the [Z]oo.” While it is undisputed that
Mr. Torres was the person who communicated with and collected payment from the Zoo
and was the person to whom the Zoo would report any complaints, it does not necessarily
follow that Mr. Torres could or did control the conduct of Claimant’s work. Rather, the
duties that Mr. Torres was performing were more akin to the duties of a general
contractor. As the trial court stated, “Mr. Torres telling [Claimant] where to work is not
equivalent to telling him how to work.”

        The trial court also gave significant consideration to the parties’ descriptions of the
work schedule. Mr. Torres hired laborers to be on site from 7:00 a.m. to 3:00 p.m. to
assist the artists. Mr. Torres testified that he expected the artists to generally work those
hours as well, since that is when they would have help available. However, Mr. Torres
testified he did not discipline any artists who were late. Claimant agreed, stating that
while Mr. Torres had made comments to him when he arrived late, he had never been
disciplined for not being at the worksite at 7:00 a.m. Mr. Torres also testified that, since
Claimant had no intention of moving to Nashville permanently, he had agreed to pay
Claimant’s lodging expenses while he was working on the project and, in return, he

                                              4
expected Claimant to work full weeks, adding that, otherwise, there was no point in him
being on the project or in Mr. Torres continuing to pay for a hotel. We agree with the
trial court’s conclusion that the “right to control the conduct of the work” factor favors a
finding that Claimant was an independent contractor.

       In addition, both Claimant and Mr. Torres testified that Mr. Torres could terminate
Claimant at any time. Although the right to terminate a worker at will is consistent with
an employer-employee relationship, the trial court did not find this factor to be
determinative. We agree. See Wright v. Knox Vinyl & Aluminum Co., 779 S.W.2d 371,
374 (Tenn. 1989) (“[T]he fact that [a] 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 employer-employee relationship.”).

       The trial court also determined that Delatorre’s method of payment “generally
supports a finding of an employer-employee relationship,” as Delatorre paid weekly
wages via direct deposit to Claimant and withheld taxes and social security each
paycheck. Further, Delatorre reported Claimant’s wages on a W-2 form. However, as
noted by the trial court, the method of payment is only one factor among a number of
indicia relevant to the determination of the relationship. Here, Mr. Torres testified that
Claimant had the option of invoicing Delatorre each week, stating that some artists “did
not want to deal with that,” in which case he would “run [the time] through the payroll”
as he did with Claimant.

       Further, the trial court concluded the factors of freedom to select and hire helpers
and the furnishing of tools and equipment did not favor either party. Claimant testified
he could not hire helpers, but that he could recommend to Mr. Torres that Delatorre hire
particular individuals that Claimant recommended. By contrast, Mr. Torres testified that
Claimant never asked to hire helpers, but that he could have done so if he paid them
himself. Delatorre provided the equipment to make the artificial rocks, but Claimant
provided the specialty tools that he described were “like an artist uses or a chef would
bring knives.”

       As to the scheduling of working hours, the trial court found Mr. Torres did not set
Claimant’s working hours and the arrangement supported the existence of an independent
contractor relationship. Again, we agree. Asked whether Claimant could come to work
whenever he wanted and what the consequences would be if Claimant came to work at
noon, Mr. Torres stated that Claimant could show up whenever he wanted and that
“nothing” would happen if he were to show up at noon, adding that “[i]t just affects the
work that he’d done, but being a freelance guy, I’ve got no control over that.” Although
both Claimant and Mr. Torres testified the laborers typically worked from 7:00 a.m. until
3:30 p.m. or later, we agree with the trial court’s determination that the self-scheduling of
work hours supports the relationship being one of independent contractor rather than
employer-employee.

                                             5
        Addressing Claimant’s freedom to offer services to other entities, the trial court
was of the opinion the proof did not support one party over the other. While Claimant
did not offer his services to any other entity during his work at the Zoo, Mr. Torres
testified that nothing would have prevented him from doing so. Claimant testified that he
would not have been able to work elsewhere while working on the project at the Zoo.
We cannot know from the proof what, if any, consequences Claimant would have faced
had he worked for other entities during the project. Thus, we agree with the trial court
that this factor favors neither party.

        Finally, we find it significant to the parties’ work relationship that Claimant was a
resident of Florida who agreed to come to Nashville for the purpose of completing a
single project that was known to be temporary work. Claimant admitted that the work
was temporary and never intended it to be otherwise. The very nature of the working
arrangement was that of a contractor (here, Delatorre, the artistic director of the project)
and an independent contractor (Claimant, an artist tasked with effectuating a portion of
the artistic vision of the Zoo). We conclude the preponderance of the evidence supports
the trial court’s determination that it is unlikely Claimant will establish at trial that he was
an employee of Delatorre.

                                         Conclusion

      For the foregoing reasons, we affirm the trial court’s decision and remand the
case. Costs on appeal are taxed to Claimant.




                                               6
                 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                   WORKERS’ COMPENSATION APPEALS BOARD

Robert Kent                                           )      Docket No. 2018-06-1969
                                                      )
v.                                                    )      State File No. 81424-2018
                                                      )
Delatorre Art Design, Inc.                            )
                                                      )
                                                      )
Appeal from the Court of Workers’                     )
Compensation Claims                                   )
Kenneth M. Switzer, Chief Judge                       )

                                   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 4th day
of October, 2019.

 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Adam W. Selvidge                                                    X     adam@reasonoverlaw.com
 Brent A. Morris                                                     X     bmorris@wimberlylawson.com
 Rosalia Fiorello                                                          rfiorello@wimberlylawson.com
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 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
