                                                                                  FILED
                                                                                Aug 23, 2019
                                                                                02:48 PM(ET)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

Reginald Yearby,                            )    Docket No.: 2018-01-0224
            Employee,                       )
v.                                          )
Armstrong Relocation,                       )    State File No.: 68327-2017
           Employer,                        )
And                                         )
Travelers,                                  )    Judge Audrey A. Headrick
           Carrier.                         )


 EXPEDITED HEARING ORDER FOR TEMPORARY DISABILITY BENEFITS


       The Court conducted an Expedited Hearing on August 16, 2019. The only issue is
whether Mr. Yearby is likely to establish at a hearing on the merits that he is entitled to
past temporary disability benefits at the maximum compensation rate of $992.20. If not,
then Armstrong seeks a $22,462.01 credit for overpayment of temporary benefits. For
the reasons below, the Court holds Mr. Yearby is not entitled to payment of benefits at
the maximum compensation rate.

                                    History of Claim

       In February 2019, the Court ordered Armstrong to provide Mr. Yearby with
medical treatment, including surgery, from Dr. Jason Rogers for a September 14, 2017
injury. The Court denied his request for temporary disability benefits at that time.

      However, following his surgery, Armstrong voluntarily paid Mr. Yearby
temporary disability benefits from September 5, 2017, through May 17, 2018, at the
maximum compensation rate of $992.20, a total of $36,002.69. It based its payment at
the maximum rate upon Mr. Yearby's deposition testimony regarding his earnings.
However, after further discovery, Armstrong obtained Mr. Yearby's tax returns and




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discovered his taxable earnings were substantially less than the earnings he represented in
his deposition testimony. 1

       Mr. Yearby's hearing testimony focused on his 2016 and 2017 tax returns. His
2016 tax return reflected gross business income of $321,900, business expenses of
$290,333, and taxable income of$31,567. His 2017 tax return listed gross business
income of$262,726, business expenses of$235,257, and taxable income of$27,469. Mr.
Yearby testified his expenses included wages for any employees he hired, payment for
workers' compensation insurance, and equipment. Although the parties disputed Mr.
Yearby's correct compensation rate, no one disputed that he is entitled to temporary
disability benefits from Aprill, 2019, through July 23,2019.

                         Findings of Fact and Conclusions of Law

                                       Standard Applied

      To prevail at an expedited hearing, Mr. Yearby must provide sufficient evidence to
show the likelihood of prevailing at a hearing on the merits in establishing entitlement to
the maximum compensation rate of $992.20 for temporary disability benefits. See Tenn.
Code Ann. § 50-6-239(d)(l) (2018). The Court holds he did not.

                                     Average Weekly Wage

         Tennessee Code Annotated 50-6-102(3)(A) defines "average weekly wage" as
"the earnings of the injured employee in the employment in which the injured employee
was working at the time of the injury during the period of fifty-two (52) weeks
immediately preceding the date of the injury divided by fifty-two (52)." The statute is
silent regarding the method of determining an employee's average weekly wage when an
employer contractually treats an independent contractor as an employee.

       Here, Mr. Yearby relied upon Am. Mut. Liability Ins. Co. v. Bradshaw, 568
S.W.2d 97 (Tenn. 1978), regarding his entitlement to the maximum weekly compensation
rate. However, the trial court in Bradshaw relied on a liberal construction of the
Workers' Compensation Law and the material evidence standard in reaching its
conclusion, and the Supreme Court affirmed it. Regardless, Bradshaw is distinguishable
because the evidence there was speculative regarding the employee's actual expenses,
and the Court used the earnings of a worker employed in the same type of work to
calculate the employee's average weekly wage.



1
  A written contract between the parties required Mr. Yearby, an independent contractor, to pay
Armstrong for workers' compensation coverage. Although Mr. Yearby is an independent contractor, the
parties agreed that he is an employee for purposes of this workers' compensation claim.

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       Even under a liberal construction, the Court refused to broaden the definition of
average weekly wage to include the value of fringe benefits, finding "[i]t would be
inappropriate for this Court to judicially legislate what would amount to a large increase
in compensation costs never contemplated by employers, carriers or the Legislature."
Pollard v. Knox Co., 886 S.W.2d 759, 760 (Tenn. 1994). Similarly, this Court finds it
inappropriate to treat Mr. Yearby's business expenses from which he paid other
employees, workers' compensation insurance, and equipment as earnings from which he
realized an economic gain.

        Unlike Bradshaw, the Court here has evidence of Mr. Yearby's expenses for the
fifty-two weeks before his injury. After deducting those expenses, the Court determines
that Mr. Yearby's actual earnings from which he realized an economic gain were $31,567
for 2016 and $27,469 for 2017. Using the weekly average from each of those years,
(specifically, thirty-six weeks at $528.25 in 2016 and sixteen weeks at $607.06 in 2017),
Mr. Yearby's average weekly wage equates to $552.50 with a resulting compensation
rate of $368.35. Therefore, Mr. Yearby's request for temporary disability benefits at the
maximum compensation rate from April 4, 2019, through June 26, 2019, is denied;
however, he is entitled to the stipulated benefits at the rate of$368.35.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Yearby's request for temporary disability benefits at the maximum
      compensation rate is denied. His correct average weekly wage is $552.50 with a
      resulting compensation rate of $368.35 and, as stipulated by the parties, he is
      entitled to temporary disability benefits from April 4, 2019, through June 26,
      2019. After using the correct compensation rate, Armstrong is entitled to a credit
      for any overpayment of past temporary disability benefits from September 5,
      2017, through May 17, 2018.

   2. This case is set for a Status Hearing on Thursday, October 17, 2019, at 10:00
      a.m. Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to
      participate. Failure to call might result in a determination of the issues without
      your participation.

      ENTERED August 23,2019.




                                  ~ ocVJ:.QJA
                                  Judge AU<ireY drlck
                                  Court of Workers' Compensation Claims



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                                     APPENDIX

Exhibits:
   1. Affidavit of Reginald Yearby
   2. May 29, 2019 letter signed by Dr. Jason Rogers
   3. Wage Statement (For Identification Only)
   4. Medical records of Dr. Rogers
   5. 2016 Tax Return
   6. 2017 Tax Return
   7. Independent Contractor Operating Agreement

Technical record:
   1. Expedited Hearing Order
   2. Order Resetting Status Hearing
   3. Motion for Payment of Temporary Disability Benefits
   4. Order Setting Expedited Hearing
   5. Request for Expedited Hearing
   6. Employee's Prehearing Brief
   7. Notice ofFiling
   8. Motion for Leave to File Late-Filed Exhibit
   9. Employer's Prehearing Brief
   10. Employer's Witness and Exhibit List
   11. Order Granting Motion for Leave to File Late-Filed Exhibit

                             CERTIFICATE OF SERVICE

      I certify that a copy of this Expedited Hearing Order was sent as indicated on
August 23, 2019.

           Name               Certified     Email      Service sent to:
                               Mail
Wilson C. von Kessler, II,                      X      wvonkessler@markelfirm.com
Employee Attorney
Richard R. Clark, Jr.,                          X      rclark@eraclides.com
Employer Attorney




                                          Pent~b                               ~tpr~~
                                          Court of Workers' Compensation Claims
                                          WC.CourtClerk@tn.gov


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