The opinion
FILED
Jul 06, 2023
04:13 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Andres Hernandez ) Docket No. 2021-06-1105
)
v. ) State File No. 800494-2021
)
SMS, Inc., d/b/a Master Stucco, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Affirmed and Remanded
In this interlocutory appeal, the employer challenges the trial court’s determination that
the employee is likely to prevail at trial in proving he was an employee eligible to seek
workers’ compensation benefits. Upon careful consideration of the record, we affirm the
trial court’s order for reasons other than those stated by the trial court and remand the
case.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Meredith B. Weaver joined. Judge Pele I. Godkin dissented.
Jackie Sharp, Jr., Nashville, Tennessee, for the employer-appellant, SMS, Inc., d/b/a
Master Stucco
Andres Hernandez, Madison, Tennessee, employee-appellee, pro se
Factual and Procedural Background
Andres Hernandez (“Claimant”) worked as a laborer for SMS, Inc., d/b/a Master
Stucco (“Employer”). On July 27, 2021, Claimant was walking across a scaffold when
he purportedly stepped on a misplaced board and fell from one level of the scaffold to the
next level down. He was subsequently diagnosed with a fracture in his left shoulder.
Employer denied the claim, asserting that Claimant was an independent contractor,
not an employee. Employer alleged that Claimant was free to set his own work hours and
work for other companies at his discretion. It further asserted that Claimant
acknowledged in writing his status as an independent contractor, had no taxes withheld
1
from his pay, and was issued a Form 1099. Employer also argued that it did not provide
any tools or, if any tools were purchased for a job at a worker’s request, the worker was
required to reimburse Employer for the cost of those tools. Finally, Employer asserted
that, because Claimant was unable to provide documentation of his eligibility to be an
employee in the United States, Employer “had no other option . . . than to employ
[Claimant] as an independent contractor/1099 worker.”
During the expedited hearing, Claimant testified through an interpreter that he
began working for Employer after arriving in the United States from Mexico. 1 He stated
that his brother-in-law invited him to work for Employer and “said they needed people
there.” He worked as a general laborer for approximately eight or nine months before
the work accident. When he began working for Employer, he rented space in a house
owned by Glen Cruzen, Employer’s owner. Two other workers lived there with him, one
of whom he identified as his brother-in-law and the other as Jose Antonio. 2 Claimant
rode to work with his housemates because he had no vehicle of his own.
The record does not reflect whether Claimant worked regularly for Employer or
whether he reported to jobsites only when work was available. The only evidence
arguably touching on this issue was Claimant’s testimony that he lived with co-workers
at a house owned by Mr. Cruzen, he rode with co-workers to and from work, and he was
“working with them all the time I was working there.” Claimant also testified that “my
employer was keeping up with the records of my hours.”
After the accident, Claimant was allegedly told by a worker named Jose to lie to
emergency room personnel about how he had fallen. 3 Ultimately however, because the
Claimant could not communicate with emergency room personnel, the man who
transported Claimant to the hospital allegedly related what had happened, and Claimant
testified that he merely signed whatever papers were presented to him without
understanding what he was signing.
1
Claimant testified that he does not speak or read English, and he understands only some Spanish because
he was raised in a community that primarily speaks Nawat, a language native to Central America.
2
During the expedited hearing, another person identified as “Jose” was described as working primarily as
an interpreter on the jobsite. However, the testimony of various witnesses was often confusing regarding
whether the witness was referring to Jose, the interpreter, or Jose Antonio Lopez, the co-worker who lived
with Claimant and his brother-in-law.
3
Employer made multiple hearsay objections during the course of Claimant’s testimony, some of which
were sustained and some of which were overruled. With respect to out-of-court statements allegedly
made by Jose (who Claimant alleged was a “boss” but who Employer alleged was a “courier” with no
supervisory duties who primarily served as an interpreter), the court concluded that Claimant had
“satisfied his burden of proving Jose’s position” and overruled the hearsay objections. That specific
determination has not been appealed.
2
Claimant asserted during the expedited hearing that Employer controlled his work
hours and his work activities. He described his job as being a “helper,” and he testified
he was paid by the hour. He stated that co-workers drove him to jobsites and took him
back home after a work shift. Finally, he asserted that “the boss” or his brother-in-law
would provide whatever tools were needed on the jobsite.
Employer presented testimony from Jose Antonio Lopez, who described himself
as a “contractor” of Master Stucco. When asked if Claimant was a contractor, Mr. Lopez
responded, “Well, I think so, but he says no.” Mr. Lopez confirmed that he lived in the
same house as Claimant and Claimant’s brother-in-law while Claimant worked for
Employer. He further testified there were multiple meetings where “Mr. Jose” gathered
all the workers to explain the meaning of paperwork they were asked to sign confirming
their status as independent contractors. Mr. Lopez further explained that Jose was
bilingual and would translate written documents and explain the contents to the workers.
Finally, Mr. Lopez testified that he owns his own tools and uses them on jobsites as
needed. He also allowed Claimant to use his tools on jobsites when needed.
Mr. Cruzen testified regarding the nature of his business and his hiring practices.
He asserted that the pool of workers available in the area for construction jobs is limited
and that there are many undocumented workers seeking such work. According to Mr.
Cruzen, he is prohibited by law from hiring undocumented workers as employees, but he
is not under the same legal restrictions if he uses independent contractors. Mr. Cruzen
testified that he explains to all workers the nature of their independent contractor status.
He further testified that his workers are able at any time to leave his jobsite and work for
other contractors. As an example, Mr. Cruzen stated that Claimant’s bother-in-law left
his jobsite for several months to work for another contractor, then returned to his jobsite
before leaving again. Mr. Cruzen explained that he supplies raw materials needed for any
particular job, but he requires workers to bring their own tools. Although he visits every
jobsite on an almost-daily basis, he is not regularly present at jobsites directing the work.
He hires both skilled and unskilled laborers. He allows workers to choose to be paid by
the job or by the hour, but, in his view, this does not impact their status as independent
contractors. He does not withhold taxes and testified that he issues 1099 forms to all
workers. 4 Finally, Mr. Cruzen testified that he periodically asks all workers to sign
written statements affirming their status as contractors and the pay arrangement. He
testified that Claimant was in attendance at most of these meetings.
With respect to Claimant, Mr. Cruzen claimed that he explained the work
relationship as a “contractor” when he offered Claimant work, and Claimant never
questioned his status as an independent contractor and never asked to be classified as an
employee. He further asserted that Claimant never presented him with a “green card,” a
4
During the expedited hearing, Employer did not offer into evidence any Form 1099 purportedly
provided to Employee, and Employee testified he was not sure whether he had such a form.
3
work visa, a Social Security Number, or any other documentation indicating that he was
eligible to work as an employee in the United States. Mr. Cruzen also testified that the
man referred to as “Jose” worked primarily as an interpreter at jobsites. He also
“assist[ed] us in driving his truck to deliver materials and translating when there [were]
questions out in the field, but I do not consider him a boss.” He also denied that Jose had
any authority to speak for him or on behalf of the company.
Following the expedited hearing, the trial court concluded Employee had come
forward with sufficient evidence indicating he would likely prevail at trial in proving he
was an employee and not an independent contractor. Consequently, the court ordered
Employer to initiate medical benefits and authorize the physician who Claimant had
already seen to continue to provide treatment. Employer has appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2022). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018).
Although the trial court’s factual findings are entitled to a presumption of
correctness, the determination of whether a worker is an employee or an independent
contractor is a question of law that we review de novo with no presumption of
correctness. See Lindsey v. Trinity Communs., Inc., 275 S.W.3d 411, 418 (Tenn. 2009).
Similarly, the interpretation and application of statutes and regulations are questions of
law that are reviewed de novo with no presumption of correctness afforded the trial
court’s conclusions. See Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d
393, 399 (Tenn. 2013). We are also mindful of our obligation to construe the workers’
compensation statutes “fairly, impartially, and in accordance with basic principles of
statutory construction” and in a way that does not favor either the employee or the
employer. Tenn. Code Ann. § 50-6-116 (2022).
Analysis
In Smiley v. Four Seasons Coach Leasing, Inc., No. 2016-06-0104, 2016 TN Wrk.
Comp. App. Bd. LEXIS 28 (Tenn. Workers’ Comp. App. Bd. July 15, 2016), we
addressed the factors to be considered in analyzing whether an injured worker is an
4
employee or an independent contractor for workers’ compensation purposes. 5 After
noting the seven statutory factors listed in Tennessee Code Annotated section 50-6-
102(10)(D)(i), we explained, “[t]hese factors are not absolutes that preclude examination
of each work relationship as a whole and are no more than a means of analysis.” Id. at
*10 (citing Masiers v. Arrow Transfer & Storage Co., 639 S.W.2d 654, 656 (Tenn.
1982)). 6 We also emphasized that “[w]hile no single factor is determinative, the
Tennessee Supreme Court has repeatedly emphasized the importance of the right to
control [the conduct of the work].” Id. (internal citation and quotation marks omitted).
Finally, we noted that “[t]he fact that a company did not deduct [S]ocial [S]ecurity or
income taxes is not a controlling factor in deciding whether an employer-employee
relationship existed.” Id. at *11.
Here, this issue was presented to the trial court at an expedited hearing, meaning
the burden of proof was different than at a trial. To support an order for the initiation of
workers’ compensation benefits, an employee has the burden of coming forward with
sufficient evidence from which the trial court could conclude he is likely to prevail at trial
in proving he is eligible to seek workers’ compensation benefits. See, e.g., Buchanan v.
Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5-6
(Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). Further, the Tennessee Supreme
Court has stated that “[o]nce an employment relationship is established, the employer
bears the burden of proving that the worker was an independent contractor rather than an
employee.” Lindsey v. Trinity Communications, 275 S.W.3d at 418.
In considering the first of the seven statutory factors listed in Tennessee Code
Annotated section 50-6-102(10)(D), “the right to control the conduct of the work,” the
trial court determined that Mr. Cruzen, as owner of the company, consistently went to
every jobsite on a daily basis to check on the progress of the contracted work. It noted
Mr. Cruzen’s testimony that he is detail oriented and demanding in his expectations of his
workers. Relevant to the second factor, “the right of termination,” the court also
emphasized Mr. Cruzen’s testimony that he was cautious in hiring workers in an effort to
enhance and protect his company’s reputation in the industry. The trial court determined
this testimony supported a finding that Employer exercised significant control over the
conduct of the work and retained the right of termination.
5
The statutory factors include: (a) the right of control over 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 work hours; and (g) the freedom to offer services to other
entities. Tenn. Code Ann. § 50-6-102(10)(D)(i).
6
We note that, for purposes of unemployment compensation, Tennessee Code Annotated section 50-7-
207(b)(2)(B) mandates consideration of a list of twenty factors in evaluating the existence or lack of an
employer-employee relationship in accordance with IRS Revenue Ruling 87-41. For purposes of online
marketplace platforms, Tennessee Code Annotated section 50-8-102(a) contains a list of ten factors to be
considered in evaluating the existence or lack of an employer-employee relationship.
5
With respect to the other statutory factors, the trial court found it significant that,
as the owner of the house where Claimant resided, he could effectively control
Claimant’s work hours because Claimant, who had no vehicle, was dependent on co-
workers to get him to and from the jobsites. Further, the court noted that, although
Claimant theoretically could offer his services to other companies, he was effectively
prevented from doing so because of his housing situation and his lack of transportation.
Consequently, the court concluded Employer effectively controlled “housing,
transportation, ‘pay arrangement,’ hours, work conduct and performance, as well as
hiring and firing.” Under such circumstances, the court concluded Claimant was likely to
prevail at trial in proving he was an employee for workers’ compensation purposes.
In assessing where the preponderance of the evidence lies, as we are compelled to
do by Tennessee Code Annotated section 50-6-239(c)(7), we conclude the issue is
significantly closer than indicated by the trial court. Mr. Cruzen’s testimony as a whole
supports a finding that, although he is detail oriented and demanding, he was primarily
concerned with the end result, not the particular manner or means by which that result
was achieved. In Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923 (Tenn. 1980), the
Tennessee Supreme Court emphasized this point, explaining as follows:
Generally, when the general contractor has a right to supervise or inspect
the work to see that the end result conforms to plans and specifications but
has no right of control over details of performance and methods to achieve
this result, the general or principal contractor and the worker do not have an
employer-employee relationship. That worker is an independent contractor.
Id. at 925.
Moreover, the trial court acknowledged Claimant’s ability to offer his services to
other companies but concluded he did not do so because of the limitations of his living
arrangement and lack of transportation. Yet, there is nothing in the record to indicate
Claimant was compelled to rent space in a house Mr. Cruzen owned as a condition of the
employment. There is nothing indicating that Employee’s lack of transportation was in
any way connected to his employment. Thus, we conclude the preponderance of the
evidence does not support a conclusion that Employer “effectively controlled” Claimant’s
housing or transportation, as there is nothing in the record suggesting that Claimant was
precluded from living elsewhere or making other arrangements for transportation.
Furthermore, Employee did not offer any evidence that he held a green card, a
work visa, or any other documentation evidencing a legal right to be employed in the
United States. Mr. Cruzen’s testimony that he is legally prohibited from hiring such
workers as employees was unrefuted, as was his explanation of why he hired workers as
independent contractors, allowing them to choose a method of payment, requiring them
6
to furnish tools or reimburse Employer the cost of tools, and acknowledging their ability
to offer their services to other companies at any time.
Yet, we must also consider that Employee, as a general laborer who primarily
worked as a “helper” on jobsites, did not hold himself out as an independent contractor.
Employee asserted that he signed the documents presented to him as a condition of
getting paid, but he did not consider himself a contractor, stating: “[T]hey were paying
me per the hour. They control my hours; I have never had control of my hours . . . I’m
always a helper. I’m not a contractor.” During cross-examination, when asked whether
he ever asked his brother-in-law to explain the meaning of the documents he was asked to
sign, Employee responded, “I never dared to ask.”
In Cromwell General Contractor, Inc. v. Lytle, 439 S.W.2d 598 (Tenn. 1969), the
Tennessee Supreme Court considered the analysis to be used in determining whether a
worker is an employee or an independent contractor. In particular, the Court addressed
whether, in circumstances where a worker performs “work necessarily a part of a larger
business” or work that is an “integral part of [the] defendant’s construction business,” the
worker should be deemed an employee for workers’ compensation purposes. Id. at 602.
Although the Supreme Court concluded that this particular test is more relevant in
circumstances where a trial court is assessing whether a worker is a “casual” employee
pursuant to Tennessee Code Annotated section 50-6-106(2), it nevertheless concluded
that the test has some relevance “when the question to be resolved is whether or not an
injured [worker] is an employee or independent contractor.” Id.
In the present case, Mr. Cruzen discussed the cleaning of jobsites as an example of
an integral part of the job and testified that, at times, he had “brought in companies who
only clean up jobsites.” At other times, however, he concluded it was “easier to also
have people who can do that for us, if it’s small, in house.” Thus, Mr. Cruzen considered
using laborers such as Claimant as an “in-house” alternative to hiring outside cleaning
companies to perform this integral part of his business.
In Warner v. Potts, No. M20093-02494-WC-R3-CV, 2005 Tenn. LEXIS 369
(Tenn. Workers’ Comp. Panel Apr. 29, 2005), the Supreme Court’s Special Workers’
Compensation Appeals Panel addressed the analysis used in determining the nature of a
work relationship, explaining that courts can consider “whether the work being
performed by the contractor in question is the same type of work usually performed by
the company or is part of the regular business of the company.” Id. at *7. The Appeals
Panel also discussed the significance of a written agreement in addressing the nature of a
work relationship:
It is the duty of the court to determine if a worker is an employee or
independent contractor, and the employer cannot use a contract to take that
responsibility from the court. The Workers’ Compensation Act similarly
7
prohibits the use by an employer of any “contract or agreement, written or
implied, or rule regulation or other device” to evade its workers’
compensation obligations. The cited code section clearly establishes the
public policy against the making of any agreement which would reduce an
employer’s liability for permanent disability benefits under the Act.
Id. at *10 (internal citations omitted). See also Fayette Janitorial Services v. Kellogg
United States, Inc., No. W2011-01759-COA-R3-CV, 2013 Tenn. App. LEXIS 66, at *16-
17 (Tenn. Ct. App. Feb. 4, 2013).
In Lindsey v. Trinity Communications, the Supreme Court noted that “the right of
termination has taken on ‘controlling significance’ in [Tennessee] case law.” 275 S.W.3d
at 419. “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.” Id. (quoting Masiers, 639 S.W.2d at 656). Here, Mr. Cruzen testified to the
care he took in selecting workers in his effort to maintain a reputable business. For
example, Mr. Cruzen stressed that he had “zero tolerance for any dishonesty because if I
can’t trust them, then they represent a risk to my business.” A reasonable inference from
Mr. Cruzen’s testimony is that he retained the right to terminate workers at will, which is
a hallmark of an employer-employee relationship. Hence, we agree with the trial court’s
determination on this issue.
Finally, we note that neither party presented any evidence regarding whether
Claimant had the authority to select and hire workers to assist him in his duties. See
Tenn. Code Ann. § 50-6-102(10)(D)(i)(c). However, Mr. Cruzen’s testimony, when
considered as a whole, strongly implies that he retained the right to hire and fire all
workers at the jobsite. With regard to this factor, we conclude the preponderance of the
evidence indicates that Claimant had no authority to hire workers to assist him in his job
duties as a general laborer, which further supports a finding that he is likely to prove he
was an employee for worker’s compensation purposes, not an independent contractor.
In sum, although the issue is close, we conclude that, once Claimant established
the existence of a work relationship with the company, Employer did not meet its burden
of showing that Claimant was an independent contractor and not an employee. We
therefore conclude, as did the trial court, that Claimant came forward with sufficient
evidence at the expedited hearing indicating a likelihood of prevailing at trial in proving
he was an employee eligible to seek workers’ compensation benefits.
Conclusion
For the foregoing reasons, we affirm the trial court’s order and remand the case.
Costs on appeal are taxed to Employer.
8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Andres Hernandez ) Docket No. 2021-06-1105
)
v. ) State File No. 800494-2021
)
SMS, Inc., d/b/a Master Stucco, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Godkin, Pele I., J., dissenting
The majority concludes that Claimant came forward with sufficient evidence at the
expedited hearing to show he is likely to prevail at trial in establishing he is eligible to seek
workers’ compensation benefits. In doing so, my colleagues also conclude that Employer
failed to meet its burden of establishing that Claimant was an independent contractor. I
respectfully disagree.
In the majority opinion, my colleagues conclude that Employer’s unrefuted
testimony as a whole supports a finding that he was primarily concerned with the result of
the work performed and not the manner or means by which that result was achieved. In
my view, this conclusion suggests there was insufficient proof that Employer retained the
right to control the conduct of Claimant’s work, as long as the desired result was achieved.
The majority also observes that Employer allowed Claimant the opportunity to choose
whether he wanted to be paid by the hour or per job. Further, my colleagues note
Employer’s unrefuted testimony that workers were required to furnish their own tools or
reimburse Employer for the cost of tools purchased at the worker’s request. I agree with
these observations and would suggest that each of these determinations supports a finding
that Claimant was an independent contractor.
I disagree with the majority’s conclusion that Claimant is likely to prevail at trial in
establishing his eligibility to seek workers’ compensation benefits premised, in part, on
testimony suggesting that Claimant was an “in-house” alternative used to perform duties
that were an “integral part” of Employer’s business. In my view, the majority places undue
weight on the “relative nature of the work test” in light of certain deficiencies I see in the
1
proof. 1 In addition, I do not agree there was sufficient evidence to support a finding that
Employer retained a right of termination or that Claimant lacked freedom to select and hire
helpers.
Central to the majority’s analysis is the conclusion that Claimant was a general
laborer who had no particular construction skills and was only a “helper” on job sites based
on his testimony at the hearing. While Claimant did testify that he was a “helper” and
provided aid to other workers who placed scaffolding, he also stated in his Rule 72
Declaration describing how his injury occurred that he “was laying cement and putting
stucco on a chimney at 4:30 p.m. and I didn’t bring security equipment (harness).” A
reasonable inference from this statement is that the work he performed, at least to some
extent, was the same work performed by other workers on the job site. Other than the
quoted statement, I find no proof in the record indicating what kind of “help” Claimant
provided, whether he performed certain tasks independent of other workers, or if any of his
work was “skilled” or “unskilled.” 2 Thus, it is my opinion that the evidence is insufficient
to determine precisely what kind of work Claimant performed while on the jobsite and
whether that work should be classified as “skilled” or “unskilled.” 3
The majority relies on Cromwell General Contractor, Inc. v. Lytle, 439 S.W.2d 598
(Tenn. 1969), for the proposition that Claimant, as a laborer, performed work that was an
“integral part” of Employer’s business and that, therefore, the evidence presented at the
expedited hearing supports a finding that Claimant was an employee for workers’
compensation purposes. In support of this position, the majority references certain
testimony from Employer to conclude there is a “reasonable inference” that Claimant was
an “in-house” alternative to Employer’s hiring outside services to perform “integral” clean-
up work. When questioned regarding his business, Employer testified that the business is
primarily focused on repair and maintenance of stucco structures, later expounding as
follows on direct examination:
1
As noted by the majority, Tennessee Code Annotated section 50-6-102(10)(D)(i) identifies seven factors
that a court should consider when determining whether an individual is an employee or independent
contractor. These factors are no more than a means of analysis and should not be applied abstractly, and
they do not preclude examination of each work relationship as a whole. See Cromwell General Contractor
Inc. v. Lytle, 439 S.W.2d 598, 601 (Tenn. 1969). However, in order to meaningfully apply the “relative
nature of the work test,” it is necessary in my opinion to have more in-depth testimony concerning the
nature of Employer’s work and the nature of the work Claimant did for Employer. As discussed in more
detail below, I conclude that proof is missing from the testimony.
2
While the trial court did not make any explicit findings regarding the parties’ credibility, the record reflects
many troubling inconsistencies in Claimant’s testimony, including statements made regarding his
knowledge (or alleged lack thereof) concerning the terms of his work relationship with Employer.
3
Depending on the facts of a particular employment relationship, both skilled and unskilled workers can
be deemed either employees or independent contractors. I take issue with this portion of the majority’s
analysis because, at this stage of the case, we do not have sufficient information regarding whether Claimant
was skilled or unskilled or the nature of the work he performed.
2
A: With that said, 95 percent of what we do has nothing to do with stucco.
What fails with stucco is caused by materials that intersect with stucco,
roof flashings, caulkings, failed windowsills, many other materials.
Therefore, we repair a wide variety of other materials that lead to damage
to stucco.
....
A: This requires us to use other tradesmen who have experience. Some of
the work is just general labor, let’s say removing a stucco panel and
maintaining a site, because it’s a messy business. For example, pressure
washing a driveway that got cement on it during the project. Therefore,
we’re not really a stucco company. We maintain or repair structures to
prevent damage.
....
Q: So it sounds like to me when you have a project, you need mostly skilled
workers that do certain things to come in and do the work?
A: We use both skilled and unskilled in that why have somebody who’s a
skilled person who’s expensive cleaning?
Q: Okay. So the need dictates what type of contractor you require?
A: Yes. So, for example, we have brought in companies who only clean up
job sites. They don’t need tools or specialty training. And so, sometimes
it’s easier to also have people who can do that for us, if it’s small, in
house.
In my opinion, a plain reading of this testimony reveals that Employer was simply
responding to questioning that asked him to describe general aspects of his work practices.
I find nothing to suggest he was addressing Claimant’s work specifically. Employer simply
explained the types of workers hired by his company, both skilled and unskilled, as well as
the reasons for hiring each type. Missing from Employer’s testimony referenced above is
any reference to Claimant, the type of work Claimant performed, or the type of work
Claimant was hired to perform. Thus, any conclusion that Claimant was being used as an
in-house alternative to an outside company is, in my opinion, speculative at best.
Further, as my colleagues noted in the majority opinion, the “relative nature of the
work” test is typically used when a court is analyzing whether a worker is a “casual
employee.” In Cromwell, the court explained:
3
It becomes clear that such a test is of vital significance in the solution of the
question whether an individual is an employer or a causal employee. The
inquiry has significance – but much less – when the question to be resolved
is whether or not an injured man is an employee or independent contractor.
Were the characterization of an individual as either an employee or an
independent contractor to depend on whether an integral or substantial part
of an employer’s total business has been contracted out, the status of
independent contractor would be obliterated.
Cromwell General Contractor Inc., 439 S.W.2d at 601 (emphasis added).
Thus, in this case and based on the record before us, I conclude the “relative nature
of the work” test is not helpful in determining whether Claimant is an employee or
independent contractor because this type of analysis necessarily relies on information that
is absent from the record. We do not know the type of work Claimant performed, whether
it was skilled or unskilled, what being a “helper” means, or whether any of this work should
be considered “integral” to Employer’s business. Because we do not have this information,
it is my view that we cannot actually determine the “relative nature of the work,” meaning
that our analysis must be based on other factors identified by the majority. It is further my
view that those factors do not support a conclusion that Claimant is likely to prevail at trial.
In affirming the trial court, the majority also emphasized that the designation given
by the parties in a contract is not controlling. While I agree with my colleagues that a
contract signed by Claimant purporting to establish him as an independent contractor is not
controlling, it is my opinion that the evidence still supports a finding Claimant was aware
of and understood the terms and nature of his work as an independent contractor. For
example, Employer and Jose Lopez, another worker who lived with Claimant, testified that
at least one meeting took place where the employment relationship was explained to
Claimant, his brother-in-law, and Mr. Lopez with the assistance of an interpreter.
According to Mr. Lopez, parties had one week to review the documents before they were
signed. Claimant initially claimed there were no meetings where these documents were
discussed and testified that Employer did not explain the documents he was to sign, but
then later stated that he “never saw [Employer] at the meeting.” When questioned about
the documents themselves, Claimant testified he did not know what he was signing. When
asked why he never inquired about the documents, Claimant responded, “[a]s I said, it’s
not that I didn’t care, it’s just I was receiving payments.” He also testified that although
he had a good relationship with his brother-in-law, Claimant never questioned him about
what he was signing or what the documents meant. When considered within the context
of Claimant’s entire testimony, including a multitude of inconsistent and contradictory
statements, I believe the evidence establishes Claimant was aware of the terms and nature
of his work as an independent contractor. In addition, although Employee testified that he
was paid by the hour, Employer’s testimony that he gave workers the choice of being paid
4
by the project or by the hour was unrefuted. In these circumstances, Claimant’s selection
of a payment method is not, in and of itself, evidence of a particular type of employment
relationship.
Finally, the court concluded that Employer retained the right of termination based
solely on testimony that he was careful to hire only honest and responsible workers.
Although this testimony could certainly suggest Employer retained the right of termination,
which would typically weigh in favor of finding an employment relationship, there is
nothing explicit in the record that supports this conclusion. Moreover, there is also
unrefuted testimony that the workers hired by Employer could and did work for other
contractors with no adverse consequences. Thus, whether Employer retained the right of
termination is not dispositive or even, in my view, persuasive under the circumstances of
this case.
For the reasons discussed above, my review of the record leads me to conclude that
the preponderance of the evidence does not support the trial court’s determination that
Claimant is likely to prevail at trial. Therefore, I would reverse the trial court’s order.
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Andres Hernandez ) Docket No. 2021-06-1105
)
v. ) State File No. 800494-2021
)
SMS, Inc., d/b/a Master Stucco, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s order in the referenced case
was sent to the following recipients by the following methods of service on this the 6th day of
July, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Ritchie Pigue X rpigue@tpmblaw.com
mwatson@tpmblaw.com
dsmith@tpmblaw.com
jsharp@tpbmlaw.com
Andres Hernandez X andres.hernandez.hernandez1973@gmail.com
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Matthew Keene
Acting Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-532-1564
Electronic Mail: WCAppeals.Clerk@tn.gov