                                                                                 FILED
                                                                               Dec 20, 2018
                                                                              11:54 AM(CT)
                                                                                TENNESSEE
                                                                           WORKERS' COMPENSATION
                                                                              APPEALS BOARD

           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
              WORKERS’ COMPENSATION APPEALS BOARD
              (HEARD NOVEMBER 27, 2018 AT KNOXVILLE)


Byron Albright                              ) Docket No. 2018-01-0109
                                            )
v.                                          ) State File No. 11611-2018
                                            )
Hercules HVAC Pads, Inc., et al.            )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Thomas L. Wyatt, Judge                      )

                 Affirmed and Remanded – Filed December 20, 2018

In this interlocutory appeal, the claimant alleges he sustained multiple injuries when he
fell from a platform at his place of employment. The defendant denied the claim,
asserting the claimant was an independent contractor and not an employee. The trial
court determined the claimant was likely to prevail at trial in establishing an employer-
employee relationship, and it ordered the payment of certain past medical expenses and
the authorization of additional medical treatment. However, the trial court denied the
claimant’s request for temporary disability benefits. Both parties appealed. Upon careful
consideration of the record, we affirm the trial court’s order and remand the case.

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

Tim Henshaw, Chattanooga, Tennessee, for the employee-appellant/appellee, Byron
Albright

L. Blair Cannon, Nashville, Tennessee, for the employer-appellee/appellant, Hercules
HVAC Pads, Inc.

                         Factual and Procedural Background

      Byron Albright (“Claimant”), a 58-year-old resident of Hamilton County,
Tennessee, worked as a construction laborer and maintenance worker for Hercules
HVAC Pads, Inc. (“Defendant”), a manufacturer of concrete pads for heating and air

                                           1
conditioning units. On November 9, 2017, Claimant was helping reconstruct an elevator
shaft for later installation in Defendant’s owner’s home. When he climbed to a platform
to hang a chain hoist, the mechanism moved unexpectedly and he fell to the ground. He
reported suffering pain in his hip, foot, and left shoulder. He was transported by
ambulance to a local hospital where he was treated and released. He followed up with his
primary care physician, who referred him to Dr. Daniel Doty to treat his shoulder and to
Dr. Jesse Doty to treat his foot.1

       Defendant denied the claim for workers’ compensation benefits, asserting
Claimant was an independent contractor and, therefore, was not entitled to benefits.
During the expedited hearing, Defendant’s owner, Phil Lynch, testified he spoke to
Claimant prior to Claimant’s beginning work and urged him on several occasions to join
the company as an employee, but it was Claimant who insisted he be considered an
independent contractor. According to Mr. Lynch, at Claimant’s request, he was paid as a
contract worker, had no taxes withheld from his paycheck, and was issued a 1099 tax
form. Claimant was not given a key to the facility and was not allowed to be in the
building unless an employee was present. Claimant did not perform any work related to
the construction of concrete pads for HVAC units, but instead was given a list of various
projects to be completed that were unrelated or, at most, peripheral to Defendant’s
primary business of manufacturing concrete pads. Mr. Lynch explained that the elevator
shaft on which Claimant was working on the day of his fall was to be installed in a home
he owned in Florida. Another project on the list was to repair part of the metal roof on
the building housing Mr. Lynch’s businesses. With respect to the issue of supervising
Claimant’s work, Mr. Lynch testified, “the day he was working on the elevator, I wasn’t
aware that that’s what he was doing. I didn’t keep up with what he did. As long as he
got stuff done, that’s all that mattered to me.” Later in the hearing, he testified, “I wasn’t
out there every day telling him what to do.”

       Claimant, on the other hand, disputed Mr. Lynch’s testimony. He asserted he
wanted to be made an employee. He claimed Mr. Lynch informed him that, for the first
several weeks, he would be paid as a contract worker, but after that he would be made an
employee. Claimant asserted that due to difficulties he had in the past with the Internal
Revenue Service, he did not want the financial responsibilities of being an independent
contractor, but wanted Defendant to treat him like an employee and withhold appropriate
taxes from his paycheck. He further testified, and Defendant acknowledged, that he was
permitted to use the time clock to keep track of his hours and that he was paid at an
hourly rate. He was given a list of projects that needed to be completed. Any materials
needed for those projects would be purchased by Defendant. Other than a few hand tools
Claimant kept in his tool belt, all other tools and equipment needed for the projects were
furnished by Defendant. If Claimant needed help to complete a project, Mr. Lynch

1
 The extent and nature of Claimant’s medical treatment is not at issue in this appeal, and we need not
address it further.

                                                  2
would assign a company employee to assist him. The following exchange occurred
during Mr. Lynch’s cross-examination:

      Q.     Essentially, you paid Mr. Albright to do maintenance work at
             Hercules, didn’t you?

      A.     Whatever was needed.

      Q.     At a rate of $12 per hour?

      A.     Yes.

      ....

      Q.     Did you have the right to terminate Mr. Albright?

      A.     As an independent contractor, I’m sure I did. . . . Again, I have the
             right to terminate him if he doesn’t do the job properly, but he was
             always timely and did his job good.

      ....

      Q.     You provided the tools?

      A.     No. He had his own tools. I provided tools that were not []normal
             for him to have as an independent contractor.

      Q.     But he didn’t have his own tools?

      A.     He couldn’t afford them.

Mr. Lynch also acknowledged that, at the time of the accident, Claimant had climbed a
ladder provided by the company to hang a chain hoist owned by the company.

       Following the expedited hearing, the trial court concluded Claimant was likely to
prevail at trial in proving he was an employee instead of an independent contractor.
Referring to the criteria set forth in Tennessee Code Annotated section 50-6-
102(12)(D)(i) (2018) for determining whether an individual is an employee, the trial
court noted that the Tennessee Supreme Court has repeatedly emphasized the importance
of the right to control the conduct of the work, the relevant inquiry being whether the
right existed, not whether it was exercised. The trial court concluded, “[Defendant’s]
owner maintained the right to control [Claimant’s] work and exercised it in several
instances, such as designation of his work assignments, the purchase of materials, the

                                           3
authorization for his use of other . . . employees and equipment, and authorization to
work outside . . . normal working hours.” Moreover, according to the trial court,
“[Defendant’s] provision of materials, equipment, and helpers . . . makes the work
situation appear more like employment.”

       As a result, the trial court ordered Defendant to pay certain past medical bills,
including ambulance charges, emergency room bills, medical expenses from Claimant’s
primary care physician, and medical bills incurred for treatment with Dr. Daniel Doty and
Dr. Jesse Doty. It also ordered Defendant to authorize any further reasonable and
necessary medical treatment with Dr. Daniel Doty and Dr. Jesse Doty. However, the trial
court denied Claimant’s request for temporary disability benefits, determining Claimant
had failed to present expert medical proof of such disability. Both parties have appealed.

                                  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

                        Employee versus Independent Contractor

       In Smiley v. Four Seasons Coach Leasing, Inc., No. 2016-06-0104, 2016 TN Wrk.
Comp. App. Bd. LEXIS 28 (Tenn. Workers’ Comp. App. Bd. July 15, 2016), we
addressed the factors to be considered in analyzing whether the injured worker is an
employee or an independent contractor for workers’ compensation purposes. After
noting the statutory factors listed in Tennessee Code Annotated section 50-6-
102(12)(D)(i), we explained “[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.” Id. at

                                            4
*10 (citing Masiers v. Arrow Transfer & Storage Co., 639 S.W.2d 654, 656 (Tenn.
1982)). We also emphasized, as did the trial court in the present case, that “[w]hile no
single factor is determinative, the Tennessee Supreme Court has repeatedly emphasized
the importance of the right to control [the conduct of the work].” Id. Finally, we noted
that “[t]he 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
*11.

        In the present case, the trial court determined Claimant was an employee for
workers’ compensation purposes. The court reasoned Mr. Lynch reserved the right to
control the conduct of Claimant’s work and exercised that right on several occasions.
Mr. Lynch designated the projects on which Claimant would work, provided tools and
equipment Claimant needed to complete those assignments, assigned an employee to
assist Claimant at times, and reserved the right to terminate Claimant if his work was not
acceptable. Mr. Lynch acknowledged that Claimant clocked in and out and was paid by
the hour. Finally, the trial court noted Mr. Lynch intended to hire Claimant as an
employee and, in effect, treated him as such. Under these circumstances, we conclude
the preponderance of the evidence supports the trial court’s determination that Claimant
is likely to prevail at trial in proving he was an employee for workers’ compensation
purposes.

                         Denial of Temporary Disability Benefits

        Although the trial court awarded past medical benefits and ordered Defendant to
authorize additional medical treatment, it denied Claimant’s request for temporary
disability benefits. In doing so, the trial court cited our decision in Young v. Young
Electric Co., No. 2015-06-0860, 2016 TN Wrk. Comp. App. Bd. LEXIS 41, at *12-13
(Tenn. Workers’ Comp. App. Bd. Sept. 14, 2016), in which we affirmed a denial of
temporary disability benefits because there was no expert medical evidence the employee
in that case had been restricted from working due to a work-related injury.

        In the present case, however, Claimant asserts there was a stipulation pertinent to
this issue. During the course of the expedited hearing, the following colloquy occurred:

      [Counsel for Claimant]: I believe they’re willing to stipulate that [Claimant]
      fell and was injured and is out of work because of those injuries and needed
      medical treatment for those injuries. It’s just the issue is whether he’s an
      employee. And based on that stipulation, we’re not calling Ms. Day
      because she would just corroborate the medical situation largely.
      (Emphasis added).

       [Trial Court]: All right. Does that stipulation go so far as to say he fell and
       was injured at the Hercules HVAC premises?

                                             5
       [Counsel for Defendant]: Yes. On their premises on November 9th, 2017.

Counsel for Defendant did not object to the characterization of the stipulation as stated by
counsel for Claimant and agreed with the court’s clarification of that stipulation.
However, Defendant argues that the stipulation, which was entered into after Claimant’s
testimony was complete, was never intended to address the issue of temporary disability,
but was instead intended to avoid the necessity of calling a fact witness who would testify
to the impact of the alleged injury on Claimant’s physical condition. Defendant further
argues that it never agreed Claimant would qualify for temporary disability benefits if the
trial court found he was an employee instead of an independent contractor.

       As we have noted previously, “[p]arties are bound by the oral statements and
agreements made by their attorneys in open court.” Demotte v. United Parcel Service,
No. 2017-06-1778, 2018 TN Wrk. Comp. App. Bd. LEXIS 38, at *8 (Tenn. Workers’
Comp. App. Bd. Aug. 13, 2018) (citing Prater v. Louisville & N. R. Co., 462 S.W.2d 514,
519 (Tenn. Ct. App. 1970)). Under such circumstances, a stipulation is binding and
“obviate[s] the need for [the parties] to present expert medical proof on that issue.” Id. at
*9-10. However, if a stipulation is ambiguous and uncertain in its terms, it should be
disregarded. See, e.g., Stumpenhorst v. Blurton, No. W2000-02977-COA-R3-CV, 2002
Tenn. App. LEXIS 161, at *11 (Tenn. Ct. App. Feb. 27, 2002) (a stipulation must
be “definite and certain in order to afford a proper basis for judicial decision”).

       Moreover, in Simpson v. Satterfield, 564 S.W.2d 953 (Tenn. 1978), the Tennessee
Supreme Court addressed an employee’s burden with respect to a claim for temporary
disability benefits:

       [T]o make out a prima facie case of entitlement to temporary total
       disability, an employee must prove that he was (1) totally disabled to work
       by a compensable injury; (2) that there was a causal connection between the
       injury and his inability to work; and (3) the duration of that period of
       disability. Temporary disability benefits are terminated either by the ability
       to return to work or attainment of maximum recovery.

Id. at 955. As a result, the question we must address is whether the parties entered into a
stipulation regarding Claimant’s entitlement to temporary disability benefits in the event
the trial court determined he was an employee and, if not, whether Claimant has satisfied
the elements necessary to show he is likely to prevail on this issue at trial.

       Claimant argues that even if the stipulation did not obviate the need for expert
medical proof of causation, this case falls in a category of cases recognized by the
Tennessee Supreme Court as so “obvious, simple and routine” that expert medical proof
of causation is unnecessary. See Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676
(Tenn. 1991) (“Except in the most obvious, simple and routine cases, the claimant in a

                                             6
workers’ compensation action must establish by expert medical evidence the causal
relationship . . . between the claimant’s injury (and disability) and the employment
activity.”).

       We previously addressed this issue in Willis v. All Staff, No. 2014-05-0005, 2015
TN Wrk. Comp. App. Bd. LEXIS 42 (Tenn. Workers’ Comp. App. Bd. Nov. 9, 2015),
where we noted that, given the substantial amendments to the Workers’ Compensation
Law that took effect in 2014, “it is unclear whether expert medical testimony is now
required in cases deemed to be ‘obvious, simple and routine.’”2 Id. at *27. On appeal,
the Tennessee Supreme Court’s Special Workers’ Compensation Appeals Panel agreed
with our conclusion that the causal relationship between the alleged accident and the
employee’s medical condition in that case was not “obvious.” Willis v. All Staff, No.
2014-05-0005, 2017 Tenn. LEXIS 455, at *13 (Tenn. Workers’ Comp. Panel Aug. 3,
2017). In the present case, Claimant asserts that the Panel’s discussion of “obvious”
cases of medical causation in Willis is an implicit acknowledgment that the principle
espoused in Orman, that an employee need not present expert medical proof of causation
in “obvious, simple and routine” cases, survived the recent amendments to the law.
However, we do not interpret the Panel’s decision in Willis as broadly as is suggested by
Claimant. Instead, we conclude that Willis does not directly address whether an
employee must present expert medical proof of causation in cases deemed to be “obvious,
simple and routine.”

       In the present case, we conclude that the terms of the stipulation were ambiguous
or incomplete as they may have pertained to the issue of temporary disability. Moreover,
even if we were to conclude the parties’ stipulation in the present case had obviated the
need for expert medical evidence on the issue of temporary disability and medical
causation, Claimant did not present sufficient evidence of the duration of any such
temporary disability, which is a necessary component of an employee’s prima facie claim
for temporary benefits. Therefore, we affirm the trial court’s denial of Claimant’s claim
for temporary disability benefits.

                                            Conclusion

       Based on the foregoing, we affirm trial court’s order and remand the case.




2
  The 2013 Workers’ Compensation Reform Act amended the definition of “injury” to state that “an
injury causes death, disablement or the need for medical treatment only if it has been shown to a
reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the
death, disablement or need for medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-
102(14)(C) (2018).

                                                  7
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Byron Albright                                                )     Docket No. 2018-01-0109
                                                              )
v.                                                            )     State File No. 11611-2018
                                                              )
Hercules HVAC Pads, Inc., et al.                              )
                                                              )
                                                              )
Appeal from the Court of Workers’                             )
Compensation Claims                                           )
Thomas L. Wyatt, 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 20th day of December, 2018.

 Name                              Certified   First Class   Via   Fax      Via     Sent to:
                                   Mail        Mail          Fax   Number   Email

 Tim Henshaw                                                                 X      tim@mcmahanlawfirm.com
 G. Brent Burks                                                              X      brentburks@mcmahanlawfirm.com
 L. Blair Cannon                                                             X      blair.cannon@thehartford.com
 Thomas L. Wyatt, Judge                                                      X      Via Electronic Mail
 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
