The opinion
FILED
Dec 04, 2025
10:49 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
BAUDILIO VELASQUEZ (Deceased), ) Docket No. 2021-08-0835
Employee, )
v. )
BROTHERS CONSTR., ) State File No. 60106-2021
Employer, )
And )
TRAVELERS PROP. CAS. CO. ) Judge Shaterra R. Marion
OF AM., )
Carrier. )
COMPENSATION HEARING ORDER GRANTING BENEFITS
Baudilio Velasquez died from an injury in the course and scope of his
employment with Brothers Construction. His surviving partner requested benefits
for his three minor children.
The Court held a compensation hearing on November 18, 2025, where the
parties agreed on all issues except Mr. Velasquez’s average weekly wage which, for
the reasons below, the Court finds was $950.00.
History of Claim
Mr. Velasquez died from a work injury on September 8, 2020, leaving three
minor children who live with their mother in Guatemala. He received authorized
medical treatment, but the bills have not been paid.
Argelio Samayoa, Mr. Velasquez’s brother, testified Mr. Velasquez began
working for Mr. Juan Esparza at Brothers Construction soon after Mr. Esparza
received his contact information in mid-July 2020 and worked “from five to seven
days” a week, sometimes on weekends, depending on the weather. He started at 6:30
or 7:00 a.m. and returned between 8:00 and 10:00 p.m. He was paid by check, but
Mr. Samayoa did not see the amounts or know how much Mr. Velasquez was paid.
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Maridalia Lucas Perez, Mr. Velasquez’s surviving partner, testified he
worked for about two months and sent her money about five times during his
employment. He sometimes sent money after eight days, and sometimes after 15
days. If he sent money after eight days, he sent “roughly $1,000,” and if he sent
money after 15 days he sent “roughly $1,800.” She said he only kept enough money
to eat but later acknowledged he also had to pay rent.
Mr. Esparza stated, in his discovery responses that were submitted into
evidence, that Mr. Velasquez worked for him for only eight days before his injury.
However, at trial he said that Mr. Velasquez could have worked for five to six
weeks. Additionally, he testified that Mr. Velasquez worked between three and five
days a week, and that he worked some weekends if the weather or other problems
prevented him from working five weekdays.
Mr. Esparza testified that he paid Mr. Velasquez $160 per day, and he
generally worked five days a week, although that varied due to weather and
availability of work. At one point on direct examination, Mr. Esparza did not recall
ever paying Mr. Velaquez more than $160 a day for a 5-day work week. That
amount equals the $800 per week he listed in his discovery responses.
However, in response to the question, “How much did you pay [Mr.
Velasquez]?” Mr. Esparza stated, “Normally I paid $950.” On cross examination,
in response to the statement, “A few minutes ago you testified that on average you
paid [Mr. Velasquez] $950 per week,” Mr. Esparza replied, “More or less,
depending on the number of days that we worked.” He paid Mr. Velasquez by check
on two occasions but stated he did not have copies of those checks to produce in
response to discovery.
Findings of Fact and Conclusions of Law
The only issue is Mr. Velasquez’s average weekly wage. At a compensation
hearing, the claimant has the burden to prove by a preponderance of the evidence
all essential elements of his claim. Tenn. Code Ann. § 50-6-239(c)(6) (2025).
Mr. Velasquez’s dependents argue that his average weekly wage was $960,
and Brothers argues that his average weekly wage was $800.
“Average weekly wages” means the earnings of the injured employee. Mr.
Esparza offered no wage statement detailing Mr. Velaquez’s wages for the weeks
he worked, as required by Tennessee Compilation Rules and Regulations 0800-02-
21-10 (3) (2023).
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While testimony did not establish when Mr. Velasquez started working for
Brother’s Construction, all parties agreed he worked less than 52 weeks. So, his
earnings are divided by the number of weeks and parts of weeks when he earned
wages. Id. § 50-6-102(3)(A-B).
Although Mr. Esparza testified that he paid Mr. Velaquez with a check on
two separate occasions, he offered no written proof of wages. His testimony is the
only direct evidence about Mr. Velasquez’s average weekly wage, and it was
contradictory.
At one point, he said he paid Mr. Velasquez $160 per day, five days a week,
which would total $800 per week. However, he said twice that Mr. Velasquez’s pay
“on average” or “normally” for a week was $950. This $950 amount also aligns
more closely with the amounts Mr. Velasquez sent to Ms. Perez, $1,000 every eight
days or $1,800 every fifteen days.
Brothers argued that the $800 figure should be given more weight because
he gave that number in his discovery responses. However, multiple inconsistencies
exist between Mr. Esparza’s discovery responses and his live testimony, including
how much he paid Mr. Velasquez and how many days Mr. Velasquez worked for
him.
The Court therefore finds that the preponderance of evidence shows that Mr.
Velasquez’s average weekly wage was $950.00 per week, and the compensation
rate is $633.33.
Death benefits are subject to the maximum total benefit under section
209(b)(3), defined as 450 weeks times the state average weekly wage. Id. §
102(13)(D). On September 8, 2020, the state average weekly wage was $1,093.40
meaning the maximum total benefit in this case is $447,300 (450 x $1,093.40). And
a $950 average weekly wage yields a compensation rate of $633.33.
The Court holds that the children should equally share the benefits. They are
entitled to those benefits at the rate of $633.33 per week. Thus, each shall receive
$57,542.55 in a lump sum for the period from Mr. Velasquez’s death until
November 30, 2025 ($211.11 x 272 weeks and four days). After that date, each shall
receive $211.11 per week until they turn 18 years old, or 22 years old if they attend
post-secondary school. These payments shall continue under section 50-6-
210(e)(11), or until the maximum benefit is reached. If one of the children reaches
age 18 and declines to attend post-secondary schooling, or alternatively reaches age
22, then the compensation rate shall increase to $316.66 per week for the remaining
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two children until they reach age 18, or age 22 if they attend post-secondary school.
All payments are subject to the maximum total benefit.
IT IS, THEREFORE, ORDERED as follows:
1. Brothers Construction shall pay all authorized medical bills pursuant to the
Tennessee fee schedule.
2. Mr. Velasquez’s average weekly wage is $950.00 per week.
3. Brothers Construction shall pay the maximum total award of death benefits
equaling $447.300 under section 209(b)(3) as follows:
- To the duly accredited consular officer of Guatemala, accrued benefits of
$ 57,542.55 for each child in a lump sum for a total of $172,627.66, to be
used on behalf of the children.
- To the duly accredited consular officer of Guatemalan, $633.33 per week,
equal to $211.11 weekly for each child until they reach 18 or leave post-
secondary school as described above. As each child is no longer eligible for
benefits, the compensation rate shall be divided equally by the remaining
eligible children.
4. Mr. Byrce Ashby shall file a motion for fees as guardian ad litem, itemized
by task, date of performance, time spent, and the requested hourly rate
within ten days of the date of this order. Brothers Construction shall pay
that fee but is granted five days to respond to Mr. Ashby’s motion.
5. Mr. Mink is entitled to an attorney’s fee. He shall file an affidavit in support
of the requested fee within ten days of the date of this order.
6. The Court taxes the $150.00 filing fee to Brothers Construction, to be paid
to the Court Clerk within five business days of this order becoming final, and
for which execution might issue, if necessary.
7. Brothers Construction shall prepare and submit to the Court Clerk a
Statistical Data Form (SD2) within 10 business days of this order becoming
final.
8. Unless appealed, this order shall become final 30 days after issuance.
IT IS ORDERED.
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ENTERED December 4, 2025.
______________________________________
Judge Shaterra R. Marion
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Text Messages between Argelio Samayoa and Juan Esparza
2. Video Taken at Horse Race on August 16, 2020
3. Mr. Esparza’s responses to Mr. Velasquez’s Interrogatories and Requests
for Production
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on December 4, 2025.
Name Email Service Sent to:
Robert Mink Sr., X robmink@holcombgroup.com
Robert Mink Jr., kwhalen@holcombgroup.com
Employee’s
Attorneys
Neil M. McIntire, X nmcintire@howell-fisher.com
Employer’s Attorney
Bryce Ashby, X bryce@donatilaw.com
Guardian Ad Litem
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
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 *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
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