Opinion

Zhou, Qiao v. Yums Subs

  • 2018 TN WC 200
Court
Tennessee Court of Workers' Compensation Claims
Filed
Dec 10, 2018
Status
Published
On the bench
Deana C. Seymour
Cited by
0 cases

The opinion

FILED

Dec 10, 2018

11:49 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MEMPHIS

QIAO ZHOU, ) Docket No. 2018-08-0640

Employee, )

v. ) State File No. 38746-2018

YUMS SUBS, )

Uninsured Employer. ) Judge Deana C. Seymour

EXPEDITED HEARING ORDER DENYING BENEFITS

________________________________________________________________________

This matter came before the Court on November 14, 2018, for an Expedited

Hearing. Mr. Zhou claimed benefits for injuries he suffered on June 28, 2017. Yums Subs

argued that Mr. Zhou neither worked for Yums nor suffered a work-related injury. The

central legal issue is whether Mr. Zhou demonstrated he is likely to prevail at a hearing

on the merits. The Court holds he failed to meet his burden and denies the requested

benefits. 1

History of Claim

Mr. Zhou worked as a cook for Yums. He claimed he injured his back when he

jumped from a second-floor window during an argument with the owner’s husband, Ming

Chi. When Yums denied workers’ compensation benefits, he filed a Petition for Benefit

Determination.

The Bureau initiated an insurance-coverage investigation, and the parties

stipulated to the report’s introduction into evidence. The Bureau investigator identified

Yums as an uninsured sole proprietorship on the day of Mr. Zhou’s injury. The parties

agreed that Yums employed Mr. Chi as a part-time cook, but the parties disagreed on

whether Mr. Zhou worked for Yums at the time of his injury. The investigator found the

owner’s minor children occasionally worked the front counter but did not receive pay.

1

Yums filed a Motion to Dismiss challenging the applicability of the Workers’ Compensation Law to this

claim. However, this potentially dispositive motion did not allow Mr. Zhou thirty days to respond before

this Expedited Hearing. Thus, the Court applied the standard of proof under Tennessee Code Annotated

section 50-6-239(d) (2018).

1

The investigator also determined that the owner, Ms. Xiuyun Chi, allowed Mr. Zhou to

live in her apartment while working for Yums. Before Yums fired Mr. Zhou, it employed

three people: Mr. Chi, an unnamed cook, and Mr. Zhou. Ms. Chi worked but did not

receive wages.

Both parties provided a different account of the incident that led to the injury.

According to Mr. Zhou, a robbery occurred at Yums five days before his injury. 2 Mr.

Zhou did not resist the robbers, which angered Mr. Chi. A few days later, Mr. Chi

reprimanded Mr. Zhou and terminated him for burning Yums’ ribs. Fearing for his safety,

Mr. Zhou retreated to his apartment. The next morning, Mr. Chi stopped by the apartment

and told Mr. Zhou to leave, since he no longer worked for Yums. Mr. Zhou discovered

Mr. Chi locked him inside the apartment. Mr. Zhou kicked out the window and jumped to

the ground.

In contrast, Mr. Chi testified that he fired Mr. Zhou the day before he suffered

injuries because Mr. Zhou burned Yums’ ribs. Mr. Chi went to Mr. Zhou’s apartment the

next morning and told him to get out. The men fought and fell from the window.

Findings of Fact and Conclusions of Law

Mr. Zhou must prove the essential elements of his claim. Scott v. Integrity Staffing

Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). He must

present sufficient evidence for the Court to determine he is likely to prevail at a hearing

on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.

LEXIS 6, at *9 (Mar. 27, 2015).

The determinative issue is whether an employer-employee relationship existed

within the meaning of the Tennessee Workers’ Compensation Law at the time of his

injury. Three elements must exist for an employment relationship: an employee, an

employer, and a contract for hire. Tenn. Code Ann. § 50-6-102(12)(A).

An “employee” includes every person under a “contract of hire” in service to an

“employer.” Id. Here, Mr. Zhou did not produce a written employment agreement.

Further, by his own admission, he last worked for Yums on June 27, but sustained

injuries on June 28. Mr. and Ms. Chi confirmed Yums last employed Mr. Zhou on June

27, the afternoon before the injury. The Court holds Mr. Zhou failed to sufficiently prove

that Yums employed him on June 28, the date of his injury.

In addition the Court finds that Yums did not employ five persons for pay as

required to be subject to the Workers’ Compensation Law. “Employer” is defined as “any

individual, firm, association or corporation . . . using the services of not less than five (5)

2

Mr. Zhou testified with assistance from a state-registered Mandarin interpreter.

2

persons for pay[.]” Tenn. Code Ann. §50-6-102(13). Mr. Zhou argued Yums employed

six people at the time of his injury, including Mr. and Ms. Chi, their two minor children,

an unnamed employee, and himself. Ms. Chi countered that Yums only paid wages to

three individuals: Mr. Chi, a part-time employee, and Mr. Zhou until his termination. Her

minor children did not receive compensation for occasionally “helping out,” and she did

not receive compensation. The Bureau’s report supported Yums’ position. The Court

holds the evidence did not sufficiently establish that Yums is subject to the Workers’

Compensation Law.

Considering the evidence as a whole, the Court holds that Mr. Zhou is unlikely to

prevail at a hearing on the merits and denies the requested benefits at this time. Based on

this ruling, the Court finds it unnecessary to address the remaining issues.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Zhou’s claim is denied at this time.

2. This matter is set for a Scheduling Hearing on February 11, 2019, at 11:00 a.m.

Central Standard Time. The parties must call (toll-free) 866-943-0014 to

participate in the Hearing. Failure to call in may result in a determination of the

issues without the parties’ participation.

Entered December 10, 2018.

____________________________________

JUDGE DEANA C. SEYMOUR

Court of Workers’ Compensation Claims

APPENDIX

Technical Record:

1. Petition for Benefit Determination, along with attachments.

2. Dispute Certification Notice, along with additional issues raised by the parties.

3. Request for Expedited Hearing, along with Mr. Zhou’s affidavit.

4. Employer’s Opposition to the Request to a Decision on the Record, along with

attachments.

5. Order Denying Employee’s Request for a Decision on the Record.

6. Motion to Dismiss.

Exhibits:

3

The parties jointly moved the Technical Record into evidence and identified the

exhibits as follows:

1. Petition for Benefit Determination, along with attachments.

2. Dispute Certification Notice, along with additional issues raised by the parties.

3. Request for Expedited Hearing, along with Mr. Zhou’s affidavit.

4. Employer’s Opposition to the Request to a Decision on the Record, along with

attachments.

5. Order Denying Employee’s Request for a Decision on the Record.

6. Motion to Dismiss.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order was

sent to the following recipients by the following methods of service on December 10,

2018.

Name Certified Fax Email Service sent to:

Mail

Qiao Zhou, X manhattanlaw888@gmail.com

Self-Represented

Employee

Michael Gatlin, theda@bellsouth.net

Employer’s Attorney

_____________________________________

Penny Shrum, Court Clerk

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

4

Expedited Hearing Order Right to Appeal:

If you disagree with this Expedited Hearing Order, you may appeal to the Workers’

Compensation Appeals Board. To appeal an expedited hearing order, you must:

1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the

form with the Clerk of the Court of Workers’ Compensation Claims within seven

business days of the date the expedited hearing order was filed. When filing the Notice

of Appeal, you must serve a copy upon all parties.

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten

calendar days after filing of 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 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 the appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request

from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of

the proceedings is to be filed, a licensed court reporter must prepare the transcript and file

it with the court clerk within ten business days of the filing the Notice of

Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both

parties within ten business days of the filing of the Notice of Appeal. The statement of

the evidence must convey a complete and accurate account of the hearing. The Workers’

Compensation Judge must approve the statement before the record is submitted to the

Appeals Board. If the Appeals Board is called upon to review testimony or other proof

concerning factual matters, the absence of a transcript or statement of the evidence can be

a significant obstacle to meaningful appellate review.

4. If you wish to file a position statement, you must file it with the court clerk within ten

business days after the deadline to file a transcript or statement of the evidence. The

party opposing the appeal may file a response with the court clerk within ten business

days after you file your position statement. All position statements 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.

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

.

ll .I

Tennessee Bureau of Workers' Compensation

220 French Landing Drive, 1-B

Nashville, TN 37243-1002

800-332-2667

AFFIDAVIT OF INDIGENCY

I, , having been duly sworn according to law, make oath that

because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be

waived. The following facts support my poverty.

1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -

3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -

5. Names and Ages of All Dependents:

- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --

- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

7. My present monthly household income, after federal income and social security taxes are deducted, is:

$ _ _ _ _ _ _ ___

8. I receive or expect to receive money from the following sources:

AFDC $ per month beginning

SSI $ per month beginning

Retirement $ per month beginning

Disability $ per month beginning

Unemployment $ per month beginning

Worker's Camp.$ per month beginning

Other $ per month beginning

LB-1108 (REV 11/15) RDA 11082

9. My expenses are: ' ; !•

'

Rent/House Payment $ per month Medical/Dental $ per month

Groceries $ per month Telephone $ per month

Electricity $ per month School Supplies $ per month

Water $ per month Clothing $ per month

Gas $ per month Child Care $ per month

Transportation $ per month Child Support $ per month

Car $ per month

Other $ per month (describe:

10. Assets:

Automobile $ _ _ __ _

(FMV) - - - - - -- - - -

Checking/Savings Acct. $ _ _ _ __

House $ _ _ _ __

(FMV) - - -- - - -- - -

)

Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __

11. My debts are:

Amount Owed To Whom

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete

and that I am financially unable to pay the costs of this appeal.

APPELLANT

Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____

NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _

LB-1108 (REV 11/15) RDA 11082

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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