              TENNESSEE BUREAU OF WORKERS' COMPENSATION
                                                                                                       TN COllR'f' OF
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS                                               n roRB.'.E.RS::
                              AT JACKSON                                                              CO:Ml''E NSAJ']:ON
                                                                                                           CL4lllS
GARY BIRCHETT,                                          )      Docket Nos. 2010-07-0030                '.fimit .11 :40 A.M.
         Employee,                                      )                  2010-07-0031
                                                        )
v.                                                      )      State File Nos. 2792-2017
GAMBRELL HICKORY MILL,                                  )                      2793-2017
        Uninsured Employer.                             )
                                                        )     Judge Allen Phillips


                  EXPEDITED HEARING ORDER DENYING MEDICAL AND
                       TEMPORARY DISABILITY BENEFITS


        This case came before the undersigned Workers' Compensation Judge on August
30, 2017, on Gary Birchett's Request for Expedited Hearing. Mr. Birchett requested
medical and temporary disability benefits for two alleged back injuries. The dispositive
issue is whether Mr. Birchett was an employee of Gambrell Hickory Mill (Gambrell) or
an independent contractor. 1 The Court holds Mr. Birchett was an independent contractor
and therefore is not entitled to the requested benefits.

                                            History of Claim

       Mr. Birchett is a diesel mechanic. On different occasions, he has owned and
operated his own repair shop. In May 2016, heart bypass surgery forced him to close his
most recent business. Afterward, he performed mechanic work for different individuals
on his own and worked for a longtime acquaintance who owns a shop in Alabama. Mr.
Birchett moved his toolbox to the shop in Alabama, and he claimed he continued working
there until Mr. Jeffery Gambrell, the owner of Gambrell Hickory Mill, offered him a job
in August 2016.



        1
          Gambrell also contested the occurrence of the injuries and medical causation. Because of the Court's
holding regarding Mr. Birchett's employment status, it need not address these defenses.
       Specifically, Mr. Birchett claimed Mr. Gambrell telephoned him to offer an "easy"
job that involved only "pointing fingers" to assist other mechanics. He claimed Mr.
Gambrell agreed to pay him a weekly salary of $1,200 and said he should report to work
each morning at 8:00 a.m. Mr. Birchett claimed he accepted the offer and with his
brother's help moved his toolbox from the shop in Alabama to Mr. Gambrell's shop. He
stated he would not have moved the large toolbox had he not intended on working only
for Mr. Gambrell. He further believed his agreement to work for Gambrell bound him
exclusively to Gambrell.

       Conversely, Mr. Gambrell contended Mr. Birchett contacted him looking for
work. Mr. Gambrell knew Mr. Birchett was a mechanic because he had patronized Mr.
Birchett's shop for repairs on Gambrell vehicles. Mr. Gambrell claimed that, in August
2016, Mr. Birchett told him that health issues forced him to close his shop but he had
several customers for whom he could perform work if he could use Gambrell's shop. Mr.
Gambrell replied that he had no present need for mechanic work. However, in an effort
to help Mr. Birchett "get back on his feet," he said he would allow him to conduct
business in his shop, with no fee, and would offer Mr. Birchett mechanic work for
Gambrell as it became available. Mr. Gambrell explained his primary business was the
manufacture of hickory ax handles but that he also owned several vehicles and equipment
that needed repair occasionally.

       Mr. Gambrell recalled Mr. Birchett offered his mechanic services to others while
working at his shop. In fact, Mr. Gambrell testified that on the day of the hearing, a
customer called looking for Mr. Birchett. Further, Mr. Birchett asked if Gambrell would
"build [his wife] an office" at the shop to carry on Mr. Birchett's business.

       As for Mr. Birchett's pay, Mr. Gambrell produced a ledger memorializing the
payments he made to Mr. Birchett by check during their arrangement. The checks
matched repair invoices reflecting Mr. Birchett's work on Gambrell vehicles. Mr.
Gambrell said he gave the ledger to his accountant, who produced a Form 1099 for Mr.
Birchett. He also noted Mr. Birchett asked to be paid in cash. For his part, Mr. Birchett
disputed the accuracy of the amounts on the invoices but admitted his handwriting
appeared on them. The check stubs matched the payments in the ledger.

       Regarding the injuries at issue, Mr. Birchett claimed he first injured his back on an
uncertain date in September 2016 when flipping a tire. Mr. Gambrell denied knowledge
of the event. Records documenting the medical care Mr. Birchett received in September
2016 reflect that Mr. Birchett "(had] his own business."

        Mr. Birchett claimed a second back injury on October 21 when he fell from a
tractor. Mr. Gambrell questioned whether he injured his back in a fall because his son



                                                 2
witnessed Mr. Birchett "wreck" his motorcycle on Gambrell's premises on that day.
Medical records again noted Mr. Birchett was "self-employed."

        Mr. Birchett last worked at Gambrell on November 3. He claimed the alleged
injuries suffered at Gambrell still prevent him from working except in an "advisory
position" for his Alabama acquaintance. His wife called the payments from the Alabama
acquaintance "loans" and corroborated her husband's testimony that he only works for
his friend in an "advisory" position. However, on cross-examination, Mr. Birchett
admitted his acquaintance in Alabama provided him a Form 1099 for mechanic work. He
requested the Court order Gambrell to pay for his lost time and provide ongoing medical
treatment.

                          Findings of Fact and Conclusions of Law

                                      Standard applied

       Mr. Birchett 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).
                                          Analysis

      Tennessee Code Annotated section 50-6-102(12)(D)(i) provides:

      In a work relationship, in order to determine whether an individual is an
      "employee," or an "independent contractor," the following factors shall be
      considered:

      (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.
10, 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. Birchett establishes the existence of an
employment relationship under this standard, then it becomes Gambrell' s burden to prove



                                                  3
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.

                                      Right of control

        The Tennessee Supreme Court "has repeatedly emphasized the importance of the
right to control" and that "the relevant inquiry [is] whether the right existed, not whether
it was exercised." Thompsen, at *15. Here, Mr. Birchett performed repair work as he saw
fit, not under Gambrell's control and without Mr. Gambrell's participation. Moreover,
Gambrell' s primary business was not mechanic work but rather wooden handle
manufacturing. Mr. Gambrell's skills are not in the area of mechanical repair, but he
instead relied upon Mr. Birchett's expertise.

       Likewise, Mr. Gambrell explained from the beginning of the relationship that he
did not need a full-time mechanic but only someone to do work on a piecemeal basis. Mr.
Birchett's claim that Mr. Gambrell offered him a job involving only advising other
mechanics is inconsistent with the evidence as a whole, and the Court finds Mr.
Gambrell's testimony more credible. Thus, as to the right of control, the Court finds Mr.
Birchett had the ability to control how he did the work from the outset and throughout the
parties' relationship.

                                       Right of termination

       "The power of an employer to terminate the employment at any time is
incompatible with the full control of the work which is usually enjoyed by an
independent contractor, and hence is considered as a strong circumstance tending to
show" an employment relationship. Peters v. Jonathan Mitchell, 2016 TN Wrk. Comp.
App. Bd. LEXIS 7, at *10 (Feb. 8, 2016). Here, either Mr. Birchett or Mr. Gambrell
could have terminated their relationship at any time, and Gambrell had no more power to
end it than did Mr. Birchett. This factor supports a finding that Mr. Birchett was an
independent contractor.

                                       Method ofpayment

        The Court finds this factor supports a finding of an independent contractor
relationship. The Court found Mr. Gambrell's version of the inception of the parties'
arrangement more credible. Likewise, it finds his testimony regarding the payment
arrangements more credible. Further, the payment history reflected that Mr. Birchett
received checks matching the actual services performed and not regular payments
indicative of an average weekly wage. Mr. Birchett conceded Gambrell paid him on a
different basis for certain activities, such as changing tires, and Mr. Gambrell effectively
explained the amounts shown on the invoices. Importantly, the payment ledger and Mr.


                                                4
Birchett's own evidence from his check stubs match identically. In short, the Court finds
that Mr. Birchett did not receive a regular average weekly wage like an employee but
instead received a per-job payment like an independent contractor.

                               Freedom to select and hire helpers

       This factor supports an independent contractor relationship. Mr. Birchett admitted
hiring a "helper," namely his brother, to work with him at Gambrell's shop and that he
paid his brother from the money he made. This is directly indicative of an independent
contractor relationship, as Mr. Birchett introduced no proof that his brother was a
Gambrell employee. Additionally, the Court believes Mr. Gambrell's testimony that Mr.
Birchett inquired as to whether he would allow his wife to have an office at Gambrell's
site to conduct Birchett's business. This, too, is consistent with the Birchetts'
understanding that Mr. Birchett worked as an independent contractor.

                                      Furnishing oftools

       This factor supports an independent contractor relationship. Mr. Birchett used his
own tools. He provided a photograph taken in Gambrell's shop of a large cabinet labeled
with the name "Gary Birchett Diesel Repair." He identified the cabinet as the same one
previously used in his own shop and in the shop in Alabama. Thus, it is clear Mr. Birchett
not only provided the tools of his trade but also used them to perform repairs on Gambrell
equipment instead of using tools provided by Gambrell.

                                        Self-scheduling

       The Court notes Mr. Birchett's testimony that Mr. Gambrell told him to report at
8:00 a.m. each morning. However, the payments made to Mr. Birchett reflected neither a
regular wage nor a regular amount of hours. To the contrary, the payment ledger showed
various payments for piecemeal work, and the invoices indicated Mr. Birchett worked for
different amounts in each pay period. These facts support a finding that he worked at his
own pace and at times conducive to completing a given task as opposed to working set
hours.

                              Freedom to offer services to others

        The Court finds this factor supports a finding of an independent       contractor
relationship. Mr. Gambrell explained he did not have sufficient business       to hire a
mechanic but provided work to Mr. Birchett as it became available. Mr.          Gambrell
testified that Mr. Birchett actually performed work for others at Gambrell's   shop; Mr.
Birchett offered no rebuttal.



                                               5
                                        Conclusion

       Based upon the statutory factors, the Court holds Mr. Birchett was an independent
contractor and not an employee of Gambrell Hickory Mill. Because of this finding, the
Court need not address the issues regarding entitlement to medical and temporary
benefits.

IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Birchett's claim for benefits is denied at this time.

   2. This matter is set for a Scheduling (Status) Hearing on Thursday, October 26,
      2017, at 10:30 a.m. Central time. You must call 731-422-5263 or toll-free 855-
      543-5038 to participate in the Hearing.

ENTERED this the 22nd day of September,:2




                                       APPENDIX

Exhibits:

   1. Bureau's Expedited Request for Investigation Report
   2. Affidavit of Gary Birchett-DOI: 9/19/16
   3. Affidavit of Gary Birchett-DOI: 10/21/16
   4. Affidavit of Dr. Stephen Collier
   5. Affidavit of George D. Moore
   6. Medical Records of Jackson-Madison Co. General Hospital
   7. Letter from Dr. Collier regarding permanent restrictions
   8. Photographs of toolbox, tire, and tractor (collective)
   9. Memorandum stating no liability of Mr. Gambrell for injuries
   10. Invoices for repair work performed by Mr. Birchett
   11. Mr. Birchett's check stubs from payments by Gambrell
   12. Gambrell's Payment Ledger for checks to Mr. Birchett
   13.Copy ofMrs. Birchett's "Linkedin" page advertising Birchett Diesel Repair



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   Technical record:

       1.   Petition for Benefit Determination-DOI: 9/19/16
       2.   Petition for Benefit Determination-DOI: 10/21116
       3.   Dispute Certification Notice-DOI: 9/ 19116
       4.   Dispute Certification Notice-DOI: 10/21/16
       5.   Request for Expedited Hearing-DOI: 9/ 19/16
       6.   Request for Expedited Hearing-DOI: 10/21/16
       7.   Order Denying De_cision on the Record Expedited Hearing
       8.   Transfer Order




                                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 22nd day of
September, 2017.

Name                           Certified     First        Via     Service Sent To:
                                Mail         Class       Email
                                             Mail
Gary Birchett,                     x           x           x     2051 Major Hill Rd.
Self-Represented                                                 Bethel Springs, TN 38315
Employee                                                         lbirchett(a)vahoo.com
Lewis L. Cobb, Esq.,                                       x     lewiscobb@sgraginslaw.com
Attorney for Employer



                                       &      ~~ ,
                                       Pe~ Shrum, Clerk of Court
                                       Court of Workers' Compensation Claims
                                       WC.CourtClerk@tn.gov




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