                                                                               FILED
                                                                             Jan 31, 2020
                                                                            10:04 AM(CT)
                                                                          TENNESSEE COURT OF
                                                                         WORKERS' COMPENSATION
                                                                                CLAIMS




           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

BERT BEELER,                              )
        Employee,                         ) Docket No. 2019-06-0764
                                          )
v.                                        )
                                          ) State File No. 28479-2019
ERIC CORUM,                               )
d/b/a GABLE TO STABLE                     )
CONSTRUCTION,                             ) Judge Joshua D. Baker
          Employer.                       )


                         EXPEDITED HEARING ORDER


       Although a court can resolve legal claims, some answers remain elusive: like how
a twenty-five year working relationship can crumple into a small wad of nine, $1-bills
and two intervertebral disks that are “plumb gone.” The Court heard evidence on these
issues during a January 21, 2020 expedited hearing in which Mr. Beeler requested
temporary disability and medical benefits. For the reasons discussed below, the Court
grants his request for medical benefits but denies his temporary disability benefits’
request.

                                    Claim History

       Mr. Beeler is resident of Franklin, Tennessee who worked as a foreman for Eric
Corum, the owner of Gable to Stable Construction. On March 27, 2019, he injured his
back picking up a board during a home-construction project. Mr. Corum told Mr. Beeler
he would pay for treatment if Mr. Beeler would not file a workers’ compensation claim.
The two had worked together “off and on” for twenty-five years.

       At first, Mr. Beeler thought he had just tweaked his back, but the next day, the
pain was so intense that he could barely get down from scaffolding. He went to a doctor
and received limited care. The doctor told him that two disks in his back were “plumb
gone” and that he needed an MRI and treatment with an orthopedic surgeon, Dr. John
William Klekamp. Mr. Beeler did not have the MRI because he could not afford to pay
the $509 fee. He provided medical bills totaling $397.49 for the treatment and a
prescription he received.

       Several weeks after the injury, Mr. Corum visited Mr. Beeler, urged him not to file
a workers’ compensation claim, and handed him cash. Mr. Beeler shoved the cash into
his pocket. Only later did he realize the wad was only “nine $1- bills.” Mr. Beeler said,
“It was like he just smacked me in the mouth.”

       Realizing that Mr. Corum had no intention of paying for his medical care, Mr.
Beeler filed a petition for benefit determination on April 16. When he tried to hand Mr.
Corum a copy of his petition, Mr. Corum refused it and walked away. So, Mr. Beeler left
a copy in Mr. Corum’s vehicle.

       Mr. Corum appeared for one hearing, and the Court granted him opportunity to
obtain counsel. However, he did not cooperate in resetting the hearing, nor did he attend
the second hearing. Similarly, he did not respond to the mediator, participate in
mediation, or identify disputed issues for adjudication.

        Mr. Beeler’s petition prompted a Bureau compliance specialist to investigate
whether Mr. Corum or Gable to Stable had workers’ compensation insurance covering
Mr. Beeler’s injury date. The specialist reported that Mr. Corum ignored all her contact
and that searches for a workers’ compensation policy for the business “yielded no
results.”

      In the investigative report, the specialist reported that Nicky Korrell, who also
worked for Gable to Stable, claimed she and Mr. Beeler were subcontractors rather than
employees of the business and that “the business only uses sub-contractors.”

       Concerning his work for Gable to Stable, Mr. Beeler testified Mr. Corum paid him
every Friday by check at the rate of $25 per hour to work where and when needed as a
construction foreman. One time, Mr. Beeler directed four other workers whom Mr.
Corum had hired to build a deck. Another time, he lived in a tent on Mr. Corum’s
property to build Mr. Corum’s “personal house” as quickly as he could, working
whenever he had daylight. He described the working relationship as on and off. For
instance, sometimes he quit when Mr. Corum would not hire enough help or provide
necessary tools. When Mr. Corum did not have enough work throughout the year, Mr.
Beeler worked odd jobs. Otherwise, he worked solely for Gable to Stable.

                       Findings of Fact and Conclusions of Law

      To prevail at an expedited hearing, Mr. Beeler must provide sufficient evidence to
show that he is likely to prevail at a final hearing. See Tenn. Code Ann. § 50-6-239(d)(1)

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(2019). The Court holds Mr. Beeler is likely to prove at a final hearing that Mr.
Corum/Gable to Stable meets the statutory definition of an employer, that Mr. Beeler was
an employee of Mr. Corum, and that he suffered a work injury. Further, the Court holds
he is eligible to request benefits from the Uninsured Employers Fund.

                                Employment Relationship

       The Court must first determine whether an employment relationship existed which
would require Mr. Corum to carry workers’ compensation insurance. In Workers’
Compensation Law, an employer is defined as “any individual . . . using the services of
not less than five (5) persons for pay[.]” Tenn. Code Ann. § 50-6-102(13). Yet
construction services providers are required to carry workers’ compensation insurance
“whether or not the provider employs fewer than five (5) employees.” Tenn. Code Ann. §
50-6-902(d).

       Still, an independent contractor is not an employee, and courts must consider the
following factors when determining whether an individual 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).

       Here, the Court finds that Mr. Corum/Gable to Stable was a construction services
provider, and Mr. Beeler worked there as an employee. Mr. Beeler testified the business
constructed homes “from the ground up.” Further, it paid him to work as a carpenter and
foreman – not as an independent contractor. Since Mr. Corum did not present any
defenses or identify any disputed issues for the mediator, the only assertion that Mr.
Beeler worked as an independent contractor came from Ms. Korrell in the specialist’s
report. However, in light of Mr. Beeler’s testimony, the Court gives that assertion little
weight. Mr. Beeler testified Mr. Corum told him when and where to work, paid him
hourly rather than by the job, and hired and fired his help. Thus, the Court holds Mr.
Beeler was Mr. Corum’s employee.




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                        Medical and Temporary Disability Benefits

       Having determined that Workers’ Compensation Law is applicable to Mr. Beeler’s
employment relationship with Mr. Corum, the Court next addresses whether he is likely
to prove at a final hearing that he suffered a work injury that requires medical treatment.

       Under Workers’ Compensation Law, an employer “shall furnish, free of charge to
the employee, such medical and surgical treatment . . . made reasonably necessary by
accident as defined in this chapter.” Tenn. Code Ann. § 50-6-204(a)(1)(A). An “injury”
means “an injury by accident . . . arising primarily out of and in the course and scope of
employment that causes . . . the need for medical treatment.” Tenn. Code Ann. § 50-6-
102(14). Further, an injury is “accidental” only if the injury is caused by a specific
incident, or set of incidents, arising primarily out of and in the course and scope of
employment. Id.

        Here, Mr. Beeler’s unrefuted testimony was that he injured his back performing
construction work for Gable to Stable Construction and that Mr. Corum did not provide
reasonable, necessary medical care. His medical records support his contention that he
injured himself at work and that Dr. Klekamp recommended an MRI to diagnose and
treat his injury.

       Thus, the Court finds Mr. Beeler is likely to prevail at trial in establishing that he
sustained an accidental injury caused by a specific incident arising primarily out of and in
the course and scope of his employment with Mr. Corum. The Court holds Mr.
Corum/Gable to Stable must pay for treatment Mr. Beeler received for this injury. See
Ducros v. Metro Roofing and Metal Supply Co., Inc., TN Wrk. Comp. App. Bd. LEXIS
62, at *10 (Oct. 17, 2017) (“[A]n employer who does not timely provide a panel of
physicians risks being required to pay for treatment an injured worker receives on his
own.”).

        Additionally, the Court appoints Dr. Klekamp as Mr. Beeler’s authorized treating
physician, as Mr. Corum failed to provide him with medical care, requiring him to seek
treatment on his own. See Young v. Young Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS
24, at *16 (May 25, 2016).

       Concerning temporary disability benefits, Mr. Beeler must prove (1) he became
disabled from working due to a compensable injury; (2) a causal connection exists
between the injury and his inability to work; and (3) his disability existed for a specific
duration. Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at
*7 (Dec. 11, 2015). As Mr. Beeler presented no expert medical proof identifying his
disability from working, its duration, or the causal relationship between his work injury
and inability to work, the Court declines to award temporary disability benefits at this
time.

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                                Uninsured Employers Fund

       The Bureau has discretion to pay limited temporary disability and medical benefits
from the UEF to an employee when:

       (1) The employee was employed by an employer who failed to secure
       payment of compensation pursuant to this chapter; (2) The employee
       suffered an injury on or after July 1, 2015, primarily within the course and
       scope of employment, at a time when the employer had failed to secure the
       payment of compensation; (3) The employee was a Tennessee resident on
       the date of injury; (4) The employee provided notice to the bureau of the
       injury and of the failure of the employer to secure the payment of
       compensation within a reasonable period of time, but in no event more than
       sixty (60) days, after the date of the injury; and (5) Except as provided in §
       50-6-802(d) and (e), the employee secured a judgment for workers’
       compensation benefits against the employer for the injury.

Tenn. Code Ann. § 50-6-801(d)(1)-(4).

        As decided here, Mr. Corum/Gable to Stable employed Mr. Beeler and was
required to carry workers’ compensation insurance. Based on the compliance specialist’s
report that she could not find a policy in effect, the Court finds the business failed to have
workers’ compensation coverage for Mr. Beeler’s work injury, which occurred after July
1, 2015. The Court also finds Mr. Beeler was a Tennessee resident when injured, as he
testified he has lived at his Tennessee address for the last three years. Finally, the Court
finds Mr. Beeler timely notified the Bureau of the business’s failure to secure workers’
compensation insurance when he filed his petition less than a month after his injury.

      Therefore, the Court holds Mr. Beeler is eligible to receive benefits from the
Uninsured Employers Fund, should the Fund decide to provide benefits.

       IT IS, THEREFORE, ORDERED as follows:

   1. Eric Corum shall pay the $397.49 of medical bills Mr. Beeler accrued for
      treatment of his work-related injury.

   2. Dr. Klekamp shall serve as the authorized treating physician. Mr. Beeler or the
      medical providers shall furnish reasonable, necessary and related bills to Mr.
      Corum/Gable to Stable for prompt payment.

   3. Mr. Beeler’s request for temporary disability benefits is denied at this time.

   4. Mr. Beeler is eligible to receive benefits from the Uninsured Employers Fund.

                                              5
  5. This matter is set for a status conference on Monday, April 20, 2020, at 9:00 a.m.
     Central Time. The parties must call 615-741-2113 or 855-874-0474 toll-free to
     participate in the conference. Failure to appear by telephone may result in
     determination of the issues without your participation.

  6. 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).
     Mr. Corum must submit confirmation of compliance with this Order to the Bureau
     by email to WCCompliance.Program@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
     Penalty Unit by email at WCCompliance.Program@tn.gov.


ENTERED JANUARY 31, 2020.



                                       _____________________________________
                                       Joshua Davis Baker, Judge
                                       Court of Workers’ Compensation Claims




                                          6
                                      APPENDIX

Exhibits:

   1.   Medical Records
   2.   Affidavit of Mr. Beeler
   3.   Bills
   4.   Expedited Request for Investigation Report


Technical Record:

   1. Petition for Benefit Determination
   2. Request for Expedited Hearing
   3. Dispute Certification Notice




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                            CERTIFICATE OF SERVICE

        I certify that a correct copy of this Order was sent as indicated on January 31,
2020.


Name                       Certified Via Via         Service sent to:
                           Mail      Fax Email
Bert Beeler,                  X            X          caseygmeb4u@gmail.com
Self-represented                                     3442 Sweeney Hollow Rd.
Employee                                             Franklin, TN 37064
Eric Corum,                   X                 X    eric@gabletostable.com
Self-represented                                     P.O. Box 680604
Employer                                             Franklin, TN 37064
LaShawn Pender                                  X    lashawn.pender@tn.gov




                                  _____________________________________
                                  Penny Shrum, Clerk
                                  Court of Workers’ Compensation Claims
                                  WC.CourtClerk@tn.gov




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