            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT KINGSPORT

James Peters                                           )   Docket No.: 2015-02-0209
                 Employee,                             )
v.                                                     )   State File Number: 49650/2015
Johnathan Mitchell d/b/a/                              )
A Clean Connection, LLC                                )
           Employer,                                   )   Judge Brian K. Addington
And                                                    )
Auto-Owners Insurance,                                 )
           Insurance Company.                          )
                                                       )

             EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


      This cause came before the undersigned workers' compensation judge on
December 11, 2015, for an Expedited Hearing. The present focus of this case concerns
the employee's right to medical treatment and temporary benefits after suffering a fall at
work. The central legal issue is whether th employee i an independent contract r or an
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employee. For the reasons set fortb below. the ourt grants medical benefit at this
time.

                                            History of Claim

       Employee, James Peters, is a forty-year-old resident of Sullivan County,
Tennessee. (T.R. 1 at 1.) He testified that he has worked for Jonathan Mitchell d//b/a A
Clean Connection, LLC for fifteen years, primarily as laborer. His last job with A Clean
was as a supervisor cleaning the rafters at Aurora Casket Company one day per month.
A Clean provided safety equipment such as masks and glasses at the work site. Mr.
Peters testified he primarily worked for a different employer, Peter's Garages.

       Mr. Peters testified that on March 10, 2015, he arrived at Aurora and began
preparing for the shift. He climbed a ladder into a scissor lift provided by Aurora to do
the job. He slipped from the ladder and landed hard on concrete. He called Jonathan
1
 Additional information regarding the certified issues, technical record and exhibits admitted at the Expedited
Hearing is attached to this Order as an Appendix.

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Mitchell, the owner of A Clean, and reported the accident. He later spoke to Mr. Mitchell
about the accident when Mr. Mitchell arrived at Aurora to inspect the crew's work.
Although his right foot hurt, after discussing the matter with Mr. Mitchell, Mr. Peters did
not request medical treatment at that time.

       In April 2015, Mr. Peters discussed the pain in his right foot with Mr. Mitchell,
when Mr. Mitchell contacted him about working at Aurora Casket that month. Mr. Peters
did not know what was wrong with his foot, but his foot still hurt. Mr. Mitchell told him
he may have chipped or broken it and that maybe he should see a doctor. Mr. Peters did
not seek medical attention at that time but waited a few more weeks. Mr. Peters worked
for A Clean that month.

       Mr. Peters chose to go to the emergency room at Holston Valley Medical Center
on May 12, 2015. He provided a history of a fall from a ladder onto "dirt," and advised
that the accident occurred eight weeks earlier. (Ex. 3 at 2.) X-rays of Mr. Peters' right
foot were negative for acute fracture or dislocation. !d. at 6. The providers diagnosed
right foot strain, but issued no restrictions. /d. at 7. Mr. Peters did not inform Mr.
Mitchell he was going to the emergency room or what had happened at the hospital. A
Clean received a bill for Mr. Peters' treatment

      Following his hospital visit, Mr. Peters returned to work the next scheduled
workday; however, Aurora Casket had cancelled the cleaning for May 2015, and neither
Mr. Peters nor the other employees worked that day.

        In June, Mr. Mitchell testified he contacted Mr. Peters by text and told him he no
longer needed him if he were unable to work. Mr. Mitchell also testified, however, that
Mr. Peters never told him about work restrictions. Mr. Mitchell testified A Clean could
have worked Mr. Peters on the floor instead of the scissor lift in order to meet his
restrictions. Mr. Mitchell replaced Mr. Peters on the Aurora Casket work crew, because
it was a five-man job.

       On July 20, 2015, Mr. Peters signed a physician panel provided by A Clean and
chose Dr. Kent Lord. (Ex. 2 at 3.) Dr. Lord first examined Mr. Peters on August 5,
2015, and diagnosed a right foot sprain. (Ex.4 at 5.) Dr. Lord prescribed a pneumatic tall
walking boot and insert. !d. Dr. Lord placed Mr. Peters on work restrictions, including
work in the boot with the insert and no climbing ladders or scaffolding equipment. !d.
Mr. Peters also discussed his prior treatment and missed work. Dr. Lord was unaware of
the emergency room treatment notes, but he opined limiting activity after a foot sprain is
not unreasonable. !d.

       Mr. Peters testified he returned to Dr. Lord on September 2, 2015. Mr. Peters told
Dr. Lord he had returned to work. Dr. Lord opined Mr. Peters had improved. the parties
did not provide the medical records from the September 2, 2015 visit. Mr. Peters did not

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return to visit Dr. Lord. Mr. Peters testified there were some issues with scheduling
therapy following the September 2, 2015 visit, but neither he nor A Clean explained the
issues to the Court.

       Mr. Peters testified Dr. Lord released him to work approximately two months prior
to the Expedited Hearing.

        A Clean presented a wage statement indicating Mr. Peters earned $1,795.40 during
the fifty-two weeks preceding the accident date. Mr. Peters' average weekly wage would
be $34.53, but the minimum compensation rate of $127.20 applies. Mr. Gibson testified
he did a number of other jobs for A Clean that were not included on the wage statement.

       Mr. Peters filed a Petition for Benefit Determination on June 29, 2015, requesting
temporary disability benefits and medical benefits. (T.R. 1 at 1.) The parties did not
resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice on August 21, 2015. (T .R. 2.) Mr. Peters filed a Request for
Expedited Hearing, pursuant to Tennessee Code Annotated section 50-6-239 (2014).
(T.R. 3.)

       During the Expedited Hearing, Mr. Peters argued that he was an employee of A
Clean and was entitled to additional medical and temporary disability benefits. He
asserted that he worked for Mr. Mitchell for years and that one day Mr. Mitchell advised
that his company would no longer have employees, but independent contractors.
However, he continued to act as the supervisor at Aurora Casket work-site, and nothing
else changed. He admitted he received a 1099, but not until late in the year. Mr. Peters
asserted he does not own a business. He requested the Court to order a return
appointment with Dr. Lord to either get a full work release or continued treatment for his
work injury. He asserted he is entitled to temporary benefits for the three-month period
he was unable to work.

       A Clean contended that Mr. Peters was an independent contractor, not an
employee, pursuant to Tennessee Code Annotated section 50-6-102(ll)(D) (2014). Mr.
Peters provided his own way to work. The client and not A Clean provided most of the
equipment. Mr. Peters could hire workers, and he could work for other employers. A
Clean did not monitor Mr. Peters' work, but provided some safety equipment. All A
Clean would do was a final walk through occasionally with Aurora to make sure it was
done. Mr. Peters could refuse work.

         A Clean asserted Mr. Peters was not entitled to any medical benefits because he
failed to submit an opinion from Dr. Lord proving causation. In addition, A Clean argued
that it should not be held responsible for Mr. Peters' emergency room visit because he did
not seek permission to go to the emergency room prior to his treatment.


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                        Findings of Fact and Conclusions of Law

       The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party, but shall be construed fairly, impartially, and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn . . Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987); Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). At an expedited hearing, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. !d. This lesser evidentiary standard "does not relieve
an employee of the burden of producing evidence of an injury by accident that arose
primarily out of and in the course and scope of employment at an expedited hearing, but
allows some relief to be granted if that evidence does not rise to the level or a
'preponderance of the evidence."' Buchanan v. Carlex Glass Co., No. 2015-01-0012,
2015 TN Wrk. Comp. App. Bd. Lexis 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept.
29, 2015).

       The first issue is whether Mr. Peters is an employee of A Clean or an independent
contractor. The Tennessee Workers' Compensation Act requires that:

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

       (i)     The right to control the conduct of the work;
       (ii)    The right of termination;
       (iii)   The method of payment;
       (iv)    The freedom to select and hire helpers;
       (v)     The furnishing of tools and equipment;
       (vi)    Self-scheduling of working hours; and
       (vii)   The freedom to offer services to other entities.

Tenn. Code Ann.§ 50-6-102(11)(D) (2014).

       The Worker's Compensation Appeals Board has stated the following regarding

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these factors:

       These factors are not absolutes that preclude examination of each work
       relationship as a whole and are no more than a means of analysis. Masiers,
       639 S.W.2d at 656 (citing Jackson Sawmill v. West, 619 S.W.2d 105 (Tenn.
       1981)). While no single factor is determinative, the Tennessee Supreme
       Court "has repeatedly emphasized the importance of the right to control, the
       relevant inquiry being whether the right existed, not whether it ·was
       exercised." Galloway v. Memphis Drum Service, 822 S.W.2d 584, 586
       (Tenn. 1991 ). Once it is established that an employment relationship exists,
       "the burden is on the employer to prove the worker was an independent
       contractor rather than an employee." ld. Another factor that has gained
       significance is the right of termination. Masiers, 639 S.W.2d at 656 (citing
       Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn. 1976)). "As
       noted in Masiers [citation omitted], 'the power of a party to a work contract
       to terminate the relationship at will is contrary to the full control of work
       activities usually enjoyed by an independent contractor."' Boruff, 795
       S.W.2d at 127.

Thompsen v. Concrete Solutions, No. 2014-04-2012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 3, *14-16 (Tenn. Workers' Comp. App. Bd. Feb. 10, 2015).

       The parties testified that there was a long-standing employment relationship
between them, so A Clean has the burden to prove Mr. Peters was an independent
contractor. The Court concludes that A Clean has failed to meet that burden. A Clean
controlled when or if Mr. Peters worked. Mr. Mitchell testified the Aurora Casket crew
was a five-man crew, and he replaced Mr. Peters when he decided Mr. Peters was unable
to work. Instead of telling Mr. Peters their contract was terminated, Mr. Mitchell told
him he was not needed. The right of termination belonged to Mr. Mitchell. Mr. Mitchell
also testified he could have accommodated Mr. Peters' work restrictions, if Mr. Peters
would have told him.

        The next issue is whether Mr. Peters suffered an injury that arose primarily out of
and in the course and scope of employment. The only disputed evidence about the injury
in question is Mr. Peters' testimony that he landed on concrete while the medical records
from the emergency room indicate he landed on dirt. A Clean presented no evidence to
refute Mr. Peter's testimony that he was at work at Aurora Casket when he fell.

       Dr. Lord is the authorized treating panel physician. He, along with the emergency
room providers, noted Mr. Peters suffered a foot sprain. However, Dr. Lord's treatment
ended before he provided a causation statement concerning Mr. Peters' sprain. Based on
the evidence presented, the Court cannot make a determination on the causation of the
Mr. Peters' injury, and it is unclear why Dr. Lord's treatment stopped when an issue

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arose over therapy. A Clean did not present to the Court a Notice of Denial or a Notice
of Controversy.

        Tennessee Code Annotated section 50-6-102(13)(E) (2014) states that "The
opinion of the treating physician, selected by the employee from the employer's
designated panel of physicians ... shall be presumed correct on the issue of causation,
but this presumption shall be rebuttable by a preponderance of the evidence."

       Although Mr. Peters has the burden of proof on the issue of causation, and there is
no causation opinion in the record, the Court finds that Dr. Lord's treatment ended
prematurely. The Court makes no finding of fault concerning that issue. The Court finds
the reasonable course at this time is to return Mr. Peters to Dr. Lord for a causation
opinion of Mr. Peters' sprain. If Dr. Lord opines Mr. Peter's sprain arose primarily out of
and in the course and scope of his employment, then A Clean shall pay for any unpaid
treatment with Dr. Lord and shall authorize all treatment, if any, made reasonably
necessary due to the injury. At this point, Mr. Peters has presented sufficient evidence
for the Court to conclude that he is likely to succeed at a hearing on the merits of his
request for authorized medical treatment, until Dr. Lord renders a causation opinion.

       The final issues of payment of prior emergency room medical benefits and
entitlement to temporary disability benefits are reserved, pending a causation statement
by Dr. Lord. The parties must file an additional PBD for these reserved issues, if they do
not reach agreement.


IT IS, THEREFORE, ORDERED as follows:

   1. A Clean shall authorize a return appointment for Mr. Peters with Dr. Lord. If Dr.
      Lord opines Mr. Peters' condition arose primarily out and in the course and scope
      of his employment, A Clean or its workers' compensation carrier, shall provide all
      medical treatment made reasonably necessary by accident, including ~my unpaid
      prior treatment.

   2. This matter is set for an Initial (Status) Hearing on January 22, 2016, at 10:30 a.m.
      Eastern Time.

   3. 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) (2014). The Insurer or Self-Insured
      Employer must submit confirmation of compliance with this Order to the
      Bureau by email to WCCompliance.Progra m@tn.gov no later than the
      seventh business day after entry of this Order. Failure to submit the

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       necessary confirmation within the period of compliance may result in a
       penalty assessment for non-compliance.

   4. For questions regarding compliance, please contact the Worker's Compensation
      Compliance Unit via email W 'Comp lian ·c.Proc:ra m f{{;Ln.go or by calling (615)
      253-1471 or (615) 532-1309.


       ENTERED this the      a\S""' day ofDecember, 2015.


                                  Judge   ih. ~±ff
                                  Court of Workers' Compensation Claims

Illitial (Status) Hearing:

       A Status Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call at 855-543-5044 to participate in
the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Eastern Time (ET).


Right to AppeaJ:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

    1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or

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   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the workers' compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing~ (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing~ (3) a
   statement of the issue(s) presented for review~ and (4) an argument, citing
   appropriate statutes, case law, or other authority.




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                                                APPENDIX

 Exhibits:
    1. Affidavit of James Peters
    2. Collective Exhibit containing a wage statement, Mr. Peters' 1099 Tax Form for
        year 2014 from A Clean Connection, LLC, and the Panel of Physicians
    3. Medical Records: Holston Valley Medical Center
    4. Medical Records: Dr. Kent Lord.

 Technical record:i 2
    1. Petition for Benefit Determination, June 29, 2015
    2. Dispute Certification Notice, August 21, 2015
    3. Request for Expedited Hearing, October 01, 2015



 2
    The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
 Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
 allegations unless established by the evidence.




                                      CERTIFICATE OF SERVICE

         I hereby certify that a true and correct copy of the Expedited Hearing Order for
 Medical Benefits was sent to the following recipients by the following methods of service
 on this the __
              21st day of December, 2015.


Name                      Certified    First     Via    Fax         Via      Sent To:
                          Mail         Class     Fax    Number      Email
                                       Mail
James Peters                 X           X                                   1812 Lamont Street
                                                                             Kingsport, TN 37664
Travis Ledgerwood,                                                   X       tledgerwood@manierherod.com
Employer/Carrier's
Counsel




                                                    Penny Shrum, Clerk of Court
                                                    Court of Workers' Compensation Claims
                                                    WC.Cou rtClerk@tn.gov


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