The opinion
FILED
Jun 05, 2025
08:05 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
JOSE VEGA, ) Docket No. 2023-05-7310
Employee, )
v. )
) State File No. 860455-2023
C. A. SMITH CONSTRUCTION, )
INC., )
Employer. ) Judge Dale Tipps
EXPEDITED HEARING ORDER GRANTING BENEFITS
The Court held an Expedited Hearing on May 29, 2025, on whether Mr. Vega is
entitled to medical and temporary disability benefits. Mr. Vega asserted he was Smith
Construction’s employee; Smith Construction primarily contended he was an independent
contractor, as well as asserting other defenses. For the reasons below, the Court holds that
Mr. Vega is likely to prove at a hearing that he was an employee and is entitled to the
requested benefits.
History of Claim
Mr. Vega worked for Smith Construction for several months before he suffered an
injury on July 13, 2023. He was installing siding when the ladder began to slide. Mr. Vega
jumped from the falling ladder and seriously injured his left ankle.
Smith Construction presented evidence to show that Mr. Vega was intoxicated. Joe
Sullivan, who described himself as a subcontractor for Smith, testified that the accident
occurred shortly after a break, when he saw Mr. Vega drinking “what looked like a beer”
in his truck. He also said Mr. Vega smelled of alcohol when he helped him back to his
truck after the accident, and he saw a 40 oz. Bud Light bottle in the truck. Another Smith
Construction worker, Curtis Newton, also said he saw Mr. Vega in his car during the break
and smelled alcohol. He later saw Mr. Vega stumbling as he walked back to the job.
Mr. Vega denied drinking the morning of the accident. His coworker, Arturo
Contreras, also helped him to his truck and said he smelled no alcohol. Mr. Vega’s wife
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agreed he did not smell of alcohol when he came home from the jobsite.
Smith Construction also suggested that Mr. Vega was working in an unsafe manner
by standing on the next-highest rung of the ladder. Mr. Sullivan added that he should not
have jumped from the ladder but should have “ridden it down” to avoid injury.
The primary dispute during the hearing was Mr. Vega’s employment status. He
testified that Joe Sullivan controlled the work, telling him where to go, what to do, and
when to do it. There was no written contract, but Mr. Vega was hired to work for $19.00
per hour and was paid weekly. He was not free to hire helpers. Mr. Sullivan provided the
ladders and tools, and he scheduled the work hours.
Mr. Vega admitted signing a W-9 form but said Mr. Sullivan filled it out, including
falsifying a social security number.
Mr. Contreras described a similar status, saying that he was paid hourly and that
someone else provided the tools. He said Mr. Sullivan worked as a supervisor for Smith
Construction and that Mr. Sullivan and the owner, Cody Smith, scheduled his hours. Mr.
Contreras testified that Mr. Sullivan eventually fired him after a disagreement.
Cody Smith disagreed and insisted Mr. Vega was an independent contractor. He
said he offered Mr. Vega the option of being an employee, but Mr. Vega chose to be a
contractor. He did not remember how Mr. Vega was paid. Similarly, he did not know who
gave Mr. Vega the W-9 form, as his wife handles the paperwork for his business, but said
it would not have been Mr. Sullivan, who was just another of his subcontractors. He
admitted he had no workers’ compensation insurance.
Mr. Smith did not know who furnished the ladder but said it did not belong to his
company. He also denied furnishing tools. Mr. Smith did not set the working hours but
explained that the development where the houses were being built limited the hours when
tradespeople were allowed to work. He said that both he and Mr. Vega had the right to
terminate the relationship.
Mr. Sullivan testified that he and Mr. Vega were both subcontractors. All the
materials were furnished by Smith Construction. Mr. Vega was supposed to bring his own
tools, but they often used tools found on site. However, these did not belong to Smith
Construction. He also said that everyone on the site tried to take their breaks at the same
time to keep from disrupting each other’s work. Mr. Sullivan denied being involved in
hiring decisions or filling out the W-9. Instead, Mr. Vega asked him what to do with the
form, and Mr. Sullivan just told him how to fill it out.
Regarding Mr. Vega’s injuries, Dr. Jeffrey Loveland testified by deposition that he
suffered a left calcaneal fracture and underwent a surgical reconstruction. As a result, Mr.
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Vega was unable to work until May 6, 2024. Presented with copies of his medical bills
and those of St. Thomas Highland, Dr. Loveland said the charges were reasonable and
necessary.
At the hearing, the parties agreed that Mr. Vega missed 298 days of work because
of the accident. They also agreed to a $450.81 compensation rate and medical expenses of
$55,445.45.
Mr. Vega requested payment of his medical bills and temporary disability benefits.
Smith Construction contended that Mr. Vega is not entitled to benefits because he was an
independent contractor. In the alternative, it argued that his claim is barred for intoxication
and violation of safety rules.
Findings of Fact and Conclusions of Law
Mr. Vega must prove he is likely to prevail at a hearing on the merits. Tenn. Code
Ann. § 50-6-239(d)(1) (2024); McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Because the parties agree that Mr. Vega was injured at the jobsite, the threshold
issue is whether he was Smith Construction’s employee or an independent contractor at the
time. Tennessee Code Annotated section 50-6-102(12)(D)(i) directs courts to 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[.]
The right to control the conduct of the work is the most significant factor when
determining whether a worker is an employee or independent contractor. Further, 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.” Thompson v.
Concrete Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 3, at *14, 15 (Feb. 10, 2015).
Regarding factors (a) and (e), both Mr. Vega and Mr. Contreras said that Mr.
Sullivan functioned as a sort of supervisor for Smith, telling them where, when, and how
to do the job. Mr. Sullivan and Mr. Smith contended that the hours were effectively
dictated by the housing development’s rules on when workers could get through the gates.
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The Court is unpersuaded by this argument. Although access to the jobsite was
limited by the gate hours, Smith Construction presented no proof that, within those
limitations, Mr. Vega was free to work whenever he wanted. Further, the evidence
suggested that Smith Construction’s workers all took their breaks at the same time. While
Mr. Sullivan explained that this was a matter of courtesy, it seems more likely that the
break times were mandated by a representative of Smith Construction. Finally, Mr.
Sullivan said he told Mr. Vega on several occasions that it was unsafe to use the uppermost
rungs of the ladder. This suggests a level of supervision or control greater than that of one
subcontractor to another. The same is true of Mr. Contreras’s uncontroverted testimony
that Mr. Sullivan fired him from the job. These inconsistencies preclude a finding that Mr.
Vega controlled the conduct of the work or scheduled his own work hours.
As for the right of termination, Mr. Smith admitted he could have terminated Mr.
Vega at any time. This suggests an employee/employer relationship.
Regarding the method of payment, this factor generally supports a finding of an
employment relationship because Smith Construction paid Mr. Vega an hourly wage,
rather than a contract price.
As to the freedom to select and hire helpers, Smith Construction offered no proof to
rebut Mr. Contreras’s and Mr. Vega’s testimony that they could not hire helpers. This
favors a finding that Mr. Vega was an employee.
As to the furnishing of tools, the testimony conflicted, but only to a point. While
Mr. Smith and Mr. Sullivan said that Smith did not provide tools, everyone agreed that Mr.
Vega did not furnish the ladder involved in the accident. Further, Mr. Sullivan testified
that workers often used tools that were found on the jobsite. The proof on this issue is
insufficient to find that Mr. Vega furnished or was expected to furnish his own tools and
equipment.
Finally, regarding the freedom to offer services to others, the parties offered little or
no evidence on whether they had any understanding as to exclusivity. At best, this factor
favors neither party.
Smith Construction has asserted an affirmative defense, which imposes the burden
of proving by a preponderance of the evidence that Mr. Vega was an independent
contractor. Pope v. Nebco of Cleveland, Inc., 585 S.W.3d 874, 888 (Tenn. Workers’ Comp.
Panel Jan. 16, 2018). It has not met that burden, as most of the factors support the existence
of an employer/employee relationship. Therefore, the Court holds that Mr. Vega would
likely prevail at a hearing on the merits on his claim that he was an employee.
Smith Construction’s other defenses are similarly unsuccessful. It suggested Mr.
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Vega’s injuries were caused by his position near the top rung of the ladder or by his
decision to jump when it fell but offered no proof supporting this assertion. Further, the
affirmative defense of willful misconduct requires Smith Construction to prove: (1) the
employee’s actual, as opposed to constructive, notice of the rule; (2) the employee’s
understanding of the danger involved in violating the rule; (3) the employer’s bona fide
enforcement of the rule; and, (4) the employee’s lack of a valid excuse for violating the
rule. Mitchell v. Fayetteville Pub. Utilities, 368 S.W.3d 442, 453 (Tenn. 2012). Smith did
not present proof on any of these factors.
Similarly, Smith Construction contended that Mr. Vega drank beer on his break and
smelled of alcohol but failed to present any proof that he was intoxicated or impaired, or
that his accident was the result of any impairment. See Woodard v. Freeman Expositions,
LLC, 2020 TN Wrk. Comp. App. Bd. LEXIS 15, at *4-5 (Apr. 3, 2020) (an employer must
present evidence that an employee’s substance use was the proximate cause of his injuries).
For these reasons, the Court holds Mr. Vega is likely to prove he was an employee
and is entitled to medical benefits, including continuing treatment with Dr. Loveland and
payment of medical expenses already incurred. He is also entitled to temporary total
disability benefits based on the agreed-upon disability period and compensation rate.
Finally, the Court considers whether Mr. Vega is eligible to apply for benefits from
the Bureau’s Uninsured Employers Fund. Under section 50-6-801(d), the Bureau has
discretion to pay limited benefits to Mr. Vega if he proves the following:
1) He worked for an employer who failed to carry workers’ compensation
insurance;
2) He suffered an injury primarily within the course and scope of
employment on or after July 1, 2015;
3) He was a Tennessee resident on the date of injury;
4) He 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 180 days after the date of the injury.
5) He secured a judgment against the employer for the injury.
Based on the information in the Petition for Benefit Determination and the proof
presented, the Court finds Mr. Vega worked for an uninsured employer, C.A. Smith
Construction, Inc. He has secured an order that he would likely prevail at a hearing on the
merits that he suffered injuries arising in the course and scope of his employment on July
13, 2023. He was a Tennessee resident on that date and provided notice to the Bureau of
his injury and Smith’s lack of insurance within 180 days.1 Therefore, Mr. Vega satisfied
1 Mr. Vega filed his Petition for Benefit Determination on October 13, 2023, and a Request for Investigation
was filed on October 19. The Expedited Request for Investigation Report by Nicolette Sanders was
completed on October 23 and concluded that the employer had no coverage.
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all the requirements of section 50-6-802(d)(1). He may complete the enclosed form for
consideration of a discretionary payment through the Uninsured Employers Fund.
IT IS, THEREFORE, ORDERED as follows:
1. C.A. Smith Construction, Inc. shall furnish all treatment made reasonably necessary
by Mr. Vega’s July 13, 2023 injury under Tennessee Code Annotated section 50-6-
204. Dr. Jeffrey Loveland is the authorized treating physician. C.A. Smith
Construction, Inc. shall also pay Mr. Vega’s medical bills from Dr. Loveland and
St. Thomas Highland, subject to the fee schedule.
2. C.A. Smith Construction, Inc. shall pay Mr. Vega temporary total disability benefits
of $19,191.20 for the period of July 13, 2023, through May 6, 2024.
3. Mr. Vega satisfied the requirements of Tennessee Code Annotated section 50-6-
801(d) and thus is eligible to request limited medical and temporary disability
benefits from the Uninsured Employers Fund at the Administrator’s discretion. To
do so, he must complete and file the attached form.
4. This case is set for a Status Hearing on August 14, 2025, at 9:00 a.m. Please call
855-874-0473 to participate. Failure to call might result in a determination of the
issues without your further participation. All conferences are set using Central
Time.
5. Unless an 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). The
Employer 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 confirmation within seven business days
may result in a penalty assessment for non-compliance. For questions regarding
compliance, contact the Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED June 5, 2025.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Deposition of Dr. Jeffrey Loveland
2. Affidavit of Sandy Vega
3. Affidavit of Arturo Contreras
4. Affidavit of Jose Vega
5. Expedited Request for Investigation Report
6. Parties’ stipulations
7. IRS W-9 form signed by Jose Vega
8. Records from Tennessee Orthopedic Alliance
9. Ms. Yepes’s Rule 72 Declaration
10. Photographs of workstation (identification only)
11. Plant Work Rules
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on June 5, 2025.
Name Certified Email Service sent to:
D. Russell Thomas, X russthomas@thethomaslawfirm.com
Employee Attorney
William J. Butler, X joey@farrar-hollimanlaw.com
Employer Attorney
LaShawn Pender X Lashawn.pender@tn.gov
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
¾ If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
¾ If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,
if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing the Notice of Appeal. Payments can be made in-person at any Bureau office
or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an
Affidavit of Indigency (form available on the Bureau’s website or any Bureau office)
seeking a waiver of the filing fee. You must file the fully-completed Affidavit of Indigency
within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing
fee or file the Affidavit of Indigency will result in dismissal of your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ
ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗
ප Expedited Hearing Order filed on _______________ ප Motion Order filed on ___________________
ප Compensation Order filed on__________________ ප Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ܆Employer ܆Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
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Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ܆Employer ܆Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082