The opinion
FILED
Oct 01, 2019
08:23 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT COOKEVILLE
DONALD GRADY RILEY, ) Docket No. 2019-04-0154
Employee, )
V. ) State File No. 41403-2019
)
ROBIN DRIVER, ) Judge Robert Durham
Uninsured Employer. )
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS IN PART
The Court conducted an expedited hearing on September 24, 2019, to determine
whether Robin Driver is obligated to provide medical and temporay disability benefits for
Donald Grady Riley’s alleged work injury.’ The Court holds Mr. Riley submitted
sufficient evidence to establish he is likely to prevail in proving he was Mr. Driver’s
employee and not an independent contractor when he suffered a work-related accident on
July 6, 2018. Thus, he is entitled to a panel from which he may select an authorized
physician for treatment of any work-related injuries. However, Mr. Riley did not provide
sufficient proof to establish entitlement to reimbursement for past medical expenses or
payment of temporary disability benefits at this time.
History of Claim
According to Mr. Riley, Mr. Driver hired him three or four years ago to work as a
painter for his various businesses in DeKalb County. On July 6, 2018, he picked up an
assistant in a vehicle registered to one of Mr. Driver’s companies, Center Hill Chalets,
Inc. They drove to a store and purchased a broom for the assistant to use and then
proceeded to the jobsite. En_ route, the vehicle pulled violently to one side, causing it to
crash into a concrete culvert and flip over, injuring Mr. Riley’s low back and legs. He
also asserted that glass flew into his right eye.
Mr. Riley testified that he attempted to return to work over the next week, but his
pain continued to intensify. As a result, he visited an emergency room in Smithville
'Mr. Driver did not attend the Expedited Hearing and did not respond to the Notice of Expedited Hearing.
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where he received testing and medication. During that time, Mr. Driver told him that he
was fired because a “third party” made a claim against Mr. Driver’s auto insurance
following the accident. In February 2019, Mr. Riley went to the emergency room at
Cookeville Regional for treatment of low-back pain and was referred to a neurologist.
However, he stated that because of his financial condition and lack of insurance, he has
not received follow-up treatment.
Mr. Riley testified that he has not worked since his termination due to intense pain
in his back and legs that severely restricts his ability to move. He came to Court in a
back brace and using crutches. He is entirely without income and lives in his car or on
the kindness of friends. He relies on food stamps. He has filed for social security
disability.
As to his job status, Mr. Riley testified that when he was initially hired, Mr. Driver
told him he would be working “for him.” After that, Mr. Riley worked exclusively for
Mr. Driver on projects for his various companies. He also painted Mr. Driver’s home.
He testified he did not have an option to work for anyone else, since Mr. Driver
demanded he be available when needed. Mr. Driver told him which projects to attend to,
what to do when he got there, and the priority assigned to each. He also gave Mr. Riley
deadlines for each job. Mr. Riley testified that Mr. Driver had at least eight to ten
employees working for him.
Mr. Driver paid Mr. Riley $14.00 per hour. He provided check stubs from CHL
Contractors, Inc. and Center Hill Services, LLC for his work. He also testified to
receiving payment from Center Hill Chalets, Inc. and Mr. Driver’s personal account
when he painted Mr. Driver’s home. Mr. Riley charged his painting supplies to credit
accounts, which Mr. Driver and his companies maintained. Mr. Riley was driving a
vehicle insured by Center Hill Chalets, Inc. at the time of his accident. While Mr. Riley
hired assistants, Mr. Driver, through his companies, paid them based on their hours
worked. Finally, Mr. Driver personally called Mr. Riley to terminate him.
Findings of Fact and Conclusions of Law
Mr. Riley must present sufficient evidence that he is likely to prevail at a hearing
on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)(2018); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The first issue is whether Mr. Riley worked for Mr. Driver personally or for the
various entities the latter owned and operated. The unrebutted testimony is that Mr.
Driver asked Mr. Riley to “come work for me” when he hired him. Since then, other than
painting Mr. Driver’s house, Mr. Riley worked exclusively as a painter for Mr. Driver on
projects for the corporations and LLCs he owns.
While these businesses are perhaps separate legal entities, they are all
interconnected. Mr. Driver owns and operates them, and they operate out of the same
office. Assets that were listed in one company’s name, for example the wrecked vehicle
insured by Center Hill Chalets, Inc., were used by Mr. Riley for various projects in which
he was paid through another company’s account. Mr. Driver directed Mr. Riley as to
when, where, and how to do each job, without regard to the company through which Mr.
Riley was paid. In addition, Mr. Driver directed Mr. Riley to paint his home and paid
him from his personal account. Given these uncontroverted facts, the Court holds that
Mr. Riley is likely to prove that Mr. Driver directly employed Mr. Riley to work for him
on projects for the companies he owned and operated.
The next issue is whether Mr. Riley was working as an independent contractor or
as an employee at the time of his accident. Tennessee Code Annotated section 50-6-
102(12)(D)(i) lists the following factors for making this determination:
(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;
) Self-scheduling of working hours; and
(g) — The freedom to offer services to other entities.
Here, the undisputed evidence established that Mr. Driver required Mr. Riley to
work exclusively for him. He told Mr. Riley which painting jobs to do, when to do them,
and how to do them. He gave him deadlines. Mr. Driver paid Mr. Riley by the hour, and
he paid him weekly with checks drawn on one of Mr. Driver’s businesses. While Mr.
Riley hired helpers, Mr. Driver paid them through his companies at a wage he set based
on their hours worked. Mr. Riley did not pay for any of the painting supplies he used,
and he drove a company vehicle to work. Finally, Mr. Driver personally terminated Mr.
Riley’s employment. Under these facts, the Court holds Mr. Riley is likely to establish
that he was Mr. Driver’s employee as opposed to an independent contractor.
Since Mr. Driver employed Mr. Riley, the Court further finds that he was subject
to the Workers’ Compensation Law, given that construction employers must provide
benefits to injured workers even if they only have one employee. Tennessee Code
Annotated section 50-6-902(a). Thus, Mr. Riley is entitled to workers’ compensation
benefits for any injury causally related to his employment with Mr. Driver.
To establish causation, Mr. Riley must first show he is likely to prove that his
accident “arose primarily out of and in the course and scope of employment.” Tenn.
Code Ann. section 50-6-102(14)(A). The unrebutted testimony was that Mr. Riley and
his assistant first traveled in a company vehicle to a store and then as they were headed to
3
a jobsite suffered the car accident. It is “well-settled” that injuries sustained by
employees while in transportation provided by the employer as an incident to
employment arises out of and within the course of employment. Smith v. Macy’s Corp.
Serv., Inc., 2019 TN Wrk. Comp. App. Bd., LEXIS 2, at *8-9 (Jan. 8, 2019). As a result,
the Court holds Mr. Riley’s accident arose primarily out of and in the course and scope of
employment.
However, that does not end the causation inquiry. Mr. Riley must also establish
that he is likely to prove to a “reasonable degree of medical certainty” that his alleged
injuries primarily arose out of and in the course and scope of employment. Tenn. Code
Ann. section 50-6-102(14)(C). Causation must be established by expert medical
testimony, and it must be by more than “speculation or possibility.” Id.
In this case, Mr. Riley did not submit any records documenting his emergency
room treatments. All he submitted were medical bills documenting the amount owed for
these visits and a record from Cookeville Regional stating he was seen for low-back pain.
No medical evidence connects the treatment he received to his automobile accident.
Therefore, the Court cannot find Mr. Riley is likely to prove the medical bills represented
reasonable and necessary expenses for treatment of a work-related injury. See Russell v.
Genesco, Inc., 651 S.W.2d 206, 211 (Tenn. 1983). Mr. Riley’s claim for reimbursement
is denied at this time.
However, the Court finds that Mr. Driver did not offer a panel of physicians from
which Mr. Riley could choose an authorized physician upon receiving notice of the
accident and injury, as he was obligated to do under Tennessee Code Annotated section
50-6-204(a)(1)(A). The Court holds that he must now do so.
The lack of medical evidence also renders Mr. Riley’s request for temporary
disability benefits problematic. To receive these benefits, Mr. Riley must show he is
likely to prove: (1) a disability from working as the result of a compensable injury; (2) a
causal connection between the injury and the inability to work; and (3) the duration of the
period of disability. See Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk. Comp. App.
Bd. LEXIS 15, at *13 (Mar. 30, 2016). Mr. Riley cannot meet this burden without
medical evidence establishing that he is disabled, that his work accident caused the
disability, and the duration of this disability. Further, while Mr. Riley testified he was
paid $14.00 an hour, he could provide no evidence or estimate as to how many hours he
worked each week, making it impossible to determine his wages for the fifty-two weeks
before the accident. While the Court is sympathetic to Mr. Riley’s financial plight, it
must deny his request for temporary disability benefits at this time.
IT IS, THEREFORE, ORDERED that:
1. Mr. Driver shall provide Mr. Riley with a panel of physicians from which he may
4
choose an authorized physician to provide reasonable and necessary treatment for
any injuries causally related to Mr. Riley’s July 6, 2018 auto accident. Mr. Driver
shall pay the expenses related to this treatment.
. Mr. Riley’s requests for reimbursement of medical expenses and temporary
disability benefits are denied at this time.
. This case is set for a Scheduling Hearing on November 7, 2019, at 10:00 a.m.
Central Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to
participate. Failure to call might result in a determination of the issues without your
participation.
. 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). The
Insurer or Self-Insured 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 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 Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED October 1, 2019.
My Lacs
Robert V. Durham, Judge
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Picture of wrecked automobile
one Statement of Greg Vinson regarding Mr. Riley’s physical condition
3. Mr. Riley’s written statement provided to Patrick Ruth
4. Mr. Riley’s written statement to the Ombudsman’s office
5. Request for Investigation report
6. Mr. Riley’s affidavit
is Accident Report
8. Cookeville Regional Hospital’s discharge note
9. Insurance card for wrecked vehicle
10. Business cards
11. Medical bills
12. Charge Account receipts
13. Paycheck stubs
Technical Record:
ls Petition for Benefit Determination
Di Dispute Certification Notice
3. Request for Expedited Hearing
4. Notice of Expedited Hearing
CERTIFICATE OF SERVICE
A copy of the Expedited Hearing Order Granting Benefits In Part was sent as
indicated on October 1, 2019.
Name Certified | Fax Email | Service sent to:
Donald Grady Riley Xx 2938 W. Broad Street
Cookeville, TN 38501
Robin Driver, Self- XxX Center Hill Realty and Chalets
Represented Employer 482 West Broad Street
Smithville, TN 37166
ZL; ) J |
SLY NN
Fenny Shyajn, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I,
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of , 20
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-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, | 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 Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam 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. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth 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
| 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
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082