The opinion
FILED
Aug 16, 2023
03:30 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Miguel Garcia Carrillo ) Docket No. 2021-06-1167
)
v. ) State File Nos. 800727-2022
) 800658-2021
Carlos Sanchez Hurtado, et al. ) 800657-2021
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Kenneth M. Switzer, Chief Judge )
Affirmed and Remanded
In this interlocutory appeal, an intermediate contractor challenges the trial court’s order
compelling it to provide a panel of physicians to the injured worker of a subcontractor for
authorized medical care. At an expedited hearing, evidence indicated that the injured
worker’s immediate employer had no workers’ compensation insurance. Other
contractors asserted that the injured worker’s immediate employer was, himself, an
independent contractor, and that the injured worker was, therefore, not eligible for
workers’ compensation benefits. At the close of the claimant’s proof, one of the
defendants moved for involuntary dismissal of the claimant’s request for interlocutory
relief, which the trial court declined to consider. The court concluded that an
intermediate contractor, who acknowledged having workers’ compensation insurance,
was obligated to provide benefits to the employee of an uninsured subcontractor in
accordance with Tennessee Code Annotated section 50-6-113. The intermediate
contractor has appealed. We affirm the trial court’s order and remand the case.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.
Neil M. McIntyre, Nashville, Tennessee, for the appellants, Gilberto Cavazos and
Hartford Underwriters Insurance Company
Dana S. Pemberton, Knoxville, Tennessee, for the appellee, Kosinski Properties, LLC
Kenneth D. Veit and Laura Bassett, Nashville, Tennessee, for the appellee, The Hartford
Insurance Group, as insurer for Kosinski Properties, LLC
1
Miguel Garcia Carrillo, Nashville, Tennessee, appellee, pro se
Carlos Sanchez Hurtado a/k/a Carlos Rios, appellee, pro se
Factual and Procedural Background
Miguel Garcia Carrillo (“Claimant”) was working for a construction contractor,
Carlos Sanchez Hurtado a/k/a Carlos Rios (“Rios”), on August 27, 2021, when he fell
from the frame of a garage at a construction site. Claimant was transported to Skyline
Medical Center, where he remained hospitalized from August 27, 2021, until September
2, 2021. Employee alleged he suffered a broken leg and broken arm as a result of this
accident. 1
After requesting but not receiving workers’ compensation benefits, Claimant filed
a petition for benefits in September 2021. 2 Ultimately, an expedited hearing was
scheduled that included Claimant, Rios, an intermediate contractor identified as Gilberto
Cavazos (“Cavazos” or “Appellant”), and a contractor identified as Kosinski Properties,
LLC (“Kosinski”). 3 Cavazos took the position that he had hired Rios as an independent
contractor and that “[Tennessee Code Annotated section] 50-6-113 does not expressly
apply to employees of independent contractors.” For its part, Kosinski took the position
that it was not Claimant’s statutory employer and that Tennessee Code Annotated section
50-6-113 requires Claimant to present his claim “in the first instance” to the immediate
employer or, if that is not successful, to “a more direct employer.” Hartford asserted that
its liability, as Kosinski’s insurer, is “wholly separate from any policy held
by . . . Gilberto Cavazos, regardless of whether the same insurer is implicated.” It further
asserted that, if Clamant is entitled to benefits, “a more directly-connected employer” and
its insurer are responsible for the claim.
Prior to the hearing, Employee did not file any medical records or bills, any proof
of restrictions preventing him from working, or any exhibits other than his Rule 72
declaration. During the expedited hearing, at the conclusion of Claimant’s proof,
Cavazos orally moved under Tennessee Rule of Civil Procedure 41.02 to dismiss “the
current request before the court for expedited relief,” which the court declined to
1
The extent and nature of Claimant’s alleged injuries are not at issue in the current appeal.
2
At the time Claimant’s initial petition was filed, he was represented by counsel. His attorney
subsequently withdrew, and Claimant proceeded pro se. In February 2022, Claimant filed another
petition in Spanish, which was translated by the Tennessee Language Center, indicating Claimant
“slipped while working up high” and injured “both feet . . . , ankles and the hand.”
3
The Hartford Insurance Group (“Hartford”), represented separately in this matter, filed a position
statement as the workers’ compensation insurer of Kosinski Properties, LLC. In addition, the record
indicates that Cavazos was insured by Hartford Underwriters Insurance Company (“Hartford
Underwriters”).
2
consider. Thereafter, the court concluded that the immediate employer, Rios, did not
have workers’ compensation insurance and that the intermediate contractor, Cavazos, was
a statutory employer responsible for providing workers’ compensation benefits pursuant
to Tennessee Code Annotated section 50-6-113(a). It therefore ordered Cavazos to
provide Claimant a panel of physicians. Cavazos and his insurer, Hartford Underwriters,
have 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). 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
On appeal, Appellant presents three issues, which we restate as: (1) whether the
trial court erred in declining to consider its motion to dismiss made pursuant to Rule
41.02 of the Tennessee Rules of Civil Procedure; (2) whether the trial court erred in
ordering it to provide a panel of orthopedic specialists “when no request for current or
future medical care was made”; and (3) whether the trial court erred in referring
Appellant for investigation of possible penalties. 4
4
In his pre-hearing brief and notice of appeal, Cavazos also raised the issue of whether employees of
independent contractors are eligible under Tennessee Code Annotated section 50-6-113 to seek benefits
from general or intermediate contractors. That section provides, in part, that “[a] principal contractor,
intermediate contractor[,] or subcontractor shall be liable for compensation to any employee injured while
in the employ of any of the subcontractors of the principal contractor, intermediate contractor[,] or
subcontractor.” Tenn. Code Ann. § 50-6-113(a) (emphasis added). In Clendening v. London Assurance
Co., 336 S.W.2d 535 (Tenn. 1960), the Tennessee Supreme Court addressed this question directly and
concluded, “[T]he general or principal contractor is liable for compensation for an injury . . . to any
employee of his subcontractor, even though the latter was an ‘independent contractor.’” Id. at 538
3
Motion for Involuntary Dismissal
Rule 41.02(2) of the Tennessee Rules of Civil Procedure provides a mechanism
for a defendant to seek dismissal of the plaintiff’s claim at the close of the plaintiff’s
proof. The rule provides, in pertinent part, as follows:
After the plaintiff in an action tried by the court without a jury has
completed the presentation of plaintiff’s evidence, the defendant, without
waiving the right to offer evidence in the event the motion is not granted,
may move for dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief.
Tenn. R. Civ. P. 41.02(2). Here, at the close of Claimant’s proof in a hearing seeking
interlocutory relief, Cavazos orally made a motion under Rule 41.02 to dismiss “the
current request before the court for expedited relief.” In declining to consider Cavazos’s
motion for involuntary dismissal of the request for interlocutory relief, the trial court
stated that such motions can only be filed in the context of a final compensation hearing,
not an interlocutory hearing. Thus, we must address, as an issue of first impression,
whether a trial court can consider a Rule 41.02(2) motion for involuntary dismissal in the
context of an expedited hearing where the movant is seeking interlocutory relief.
Our review of case law reveals limited guidance on this issue. Although several
cases discuss standards for considering a Rule 41.02 motion for involuntary dismissal in a
workers’ compensation case, none of those cases were in the context of an interlocutory
hearing where the moving party was seeking dismissal only of the request for
interlocutory relief. For example, in Building Materials Corp. v. Britt, 211 S.W.3d 706
(Tenn. 2007), the Tennessee Supreme Court addressed the defendant’s Rule 41.02 motion
for involuntary dismissal in circumstances where the employee’s statute of limitations
had allegedly expired. The Court explained, “When a motion to dismiss is made at the
close of the plaintiff’s proof in a non-jury case, the trial court must impartially weigh the
evidence as though it were making findings of fact and conclusions of law after all the
evidence has been presented.” Id. at 711. This standard was also discussed by the
Supreme Court’s Special Workers’ Compensation Appeals Panel:
(emphasis in original); see also Stratton v. United Inter-Mountain Telephone Co., No Number in Original,
1984 Tenn. App. LEXIS 3065, at *7 (Tenn. Ct. App. Aug. 2, 1984) (“[Tennessee Code Annotated
section] 50-6-113 expands the scope of compensation coverage by allowing the employees of sub-
contractors, who would otherwise be independent contractors, to recover compensation from their
principal or intermediate contractor.”). Cavazos did not argue this issue in his brief on appeal; thus, we
consider the issue to have been waived. In addition, for purposes of this appeal, we need not address the
arguments of Kosinski and Hartford that an injured employee of a subcontractor, whose immediate
employer is uninsured, is statutorily obligated to seek benefits from the “most directly-connected”
statutory employer before seeking benefits from the general contractor or other intermediate contractors.
4
In a non-jury case, when a motion to dismiss is made under Rule 41.02(2),
the trial judge must impartially weigh and evaluate the evidence in the same
manner as though it were making findings of fact at the conclusion of all of
the evidence for both parties, determine the facts of the case, apply the law
to those facts, and, if the plaintiff's case has not been made out by a
preponderance of the evidence, the action should be dismissed. This
standard is the same as would be applied by a trial court when ruling on the
merits . . . .
Aerostructures Corp. v. McGuire, No. M2006-01797-WC-R3-WC, 2008 Tenn. LEXIS
33, at *14 (Tenn. Workers’ Comp. Panel Feb. 12, 2008) (internal citation omitted).
One challenge in evaluating this issue hinges on the differences between
procedures followed in judicial branch courts and the procedures established by the 2013
Workers’ Compensation Reform Act (“Reform Act”). Although pre-reform courts
regularly addressed an injured worker’s entitlement to certain benefits at interlocutory
hearings, those rulings were rarely appealed because such an appeal required the
permission of the trial court and the appropriate appellate court under Tennessee Rule of
Appellate Procedure 9 or the permission of the Supreme Court for an extraordinary
appeal under Tennessee Rule of Appellate Procedure 10. Such permission is not needed
for interlocutory appeals from the Court of Workers’ Compensation Claims to the
Appeals Board, which are as of right. See Tenn. Code Ann. § 50-6-217(a)(2).
In one such pre-reform case, however, the Tennessee Supreme Court offered some
guidance. In McCall v. National Health Corp., 100 S.W.3d 209 (Tenn. 2003), the
Supreme Court granted permission to appeal under Rule 9 to address the standards a trial
court must follow in considering an injured worker’s interlocutory request for benefits.
First, the Supreme Court concluded that “trial courts have the authority to initiate
temporary workers’ compensation benefits before a final adjudication of the employee’s
claim.” Id. at 213. Second, the Court explained that “[w]hen deciding whether to initiate
temporary benefits, the trial court must consider whether, from the record before it, the
employee seeking benefits is likely to succeed on the merits of the claim.” Id. at 214.
The Court then concluded:
[T]he decision regarding evidentiary requirements is better left to the trial
court. Therefore, if the trial court can determine whether benefits should be
initiated based upon the record before it, no further inquiry is necessary.
This holding does not prejudice either party, in that the trial court may
reconsider its decision at the time of trial and the trial court’s judgment is
reviewable on appeal.
Id. We have previously concluded that this standard was essentially adopted by the
General Assembly when it passed the Reform Act. See McCord v. Advantage Human
5
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *8-9 (Tenn.
Workers’ Comp. App. Bd. Mar. 27, 2015).
In consideration of the text of Rule 41.02(2) and prior decisions as noted above,
we conclude that, in the context of an expedited hearing in which an employee seeks an
interlocutory order compelling the provision of certain benefits, a defendant in the case
can, at the close of the employee’s proof, seek a ruling from the court as to whether the
employee’s evidence fails to support an interlocutory order for benefits. In so moving,
the defendant does not waive its right to present evidence in the event the motion is
denied, but it gives a defendant the opportunity to challenge the sufficiency of the
employee’s proof seeking interlocutory relief. If such a motion is granted, the court may
deny the request for benefits, which is, in effect, a dismissal of the employee’s claim for
interlocutory relief akin to a dismissal pursuant to Rule 41.02(2). It is not, however, a
dismissal of the employee’s claim as a whole. 5
We reiterate, however, that the standards of proof at an expedited hearing are not
the same as the standards at a compensation hearing. See McCord, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *8. When, as is the case here, the employee is seeking
interlocutory relief, he or she must come forward with sufficient evidence indicating a
likelihood of prevailing at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1).
In the present case, Claimant offered uncontradicted testimony that he was working as an
employee for Rios when he fell and that he was hospitalized and needed medication after
being released from the hospital. Thus, as of the close of Claimant’s proof, the evidence
supported a finding that he sustained an on-the-job injury that resulted in the need for
medical care. That evidence, alone, supports the court’s order for a panel of physicians
as required by Tennessee Code Annotated section 50-6-204(a)(3)(A) (“the employer shall
designate a group or three (3) of more . . . physicians . . . from which the injured
employee shall select one (1) to be the treating physician”) (emphasis added); see also
Tenn. Comp. R. & Regs. 0800-02-01-.06(1) (“Following receipt of notice of a workplace
injury and the employee expressing a need for medical care, an employer
shall . . . provide the employee a panel of physicians.”) (emphasis added). Therefore, we
conclude that even if the court erred in declining to consider Cavazos’s challenge to the
sufficiency of the evidence at the close of Claimant’s proof, such error was harmless
because the evidence submitted by Claimant was sufficient to support an order for a panel
of physicians.
5
Rule 41.02(1), which allows a trial court to dismiss “any claim against the defendant” for the plaintiff’s
failure to prosecute, was used recently in the context of an expedited hearing to dismiss an employee’s
claim for interlocutory relief when the employee came to the building where the courtroom was located
but declined to appear in the courtroom for the expedited hearing. We affirmed, concluding the employee
had offered no argument as to how the court abused its discretion in dismissing her request for
interlocutory relief under Rule 41.02. Claybrooks v. Insight Global, LLC, No. 2020-06-0489, 2023 TN
Wrk. Comp. App. Bd. LEXIS 24, at *12 (Tenn. Workers’ Comp. App. Bd. May 30, 2023).
6
Employee’s Request for Interlocutory Relief
Next, Appellant argues that Claimant did not properly seek interlocutory relief
because he did not make a “request for current or future medical care.” This argument
misconstrues an employer’s obligations under Tennessee Code Annotated section 50-6-
204 and applicable regulations. As noted above, an employer’s obligation to provide a
panel of physicians is triggered by two events: (1) the employer’s receipt of notice of a
workplace injury; and (2) the employee’s expressing a need for medical care. Tenn.
Comp. R. & Regs. 0800-02-01-.06(1). When those two events have occurred, an
employer is obligated under Tennessee Code Annotated section 50-6-204(a) to initiate
medical benefits by providing an appropriate panel of physicians unless it denies the
occurrence of the alleged accident or asserts some other defense to the compensability of
the claim. See McCord, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *14.
Here, Claimant’s unrefuted testimony was that he was working for Rios on a
jobsite when he fell from the frame of a garage under construction. 6 Moreover, the
certified translation of Claimant’s February 2022 petition indicated that Claimant stated
he “needs therapies and treatment.” Thus, as of the date of the expedited hearing,
Cavazos was aware Claimant reported a work-related injury and had expressed a need for
medical care. Moreover, neither Rios nor Cavazos have denied the occurrence of the
accident. Thus, we find this issue to be without merit.
Penalty Referral
Finally, Cavazos asserts the trial court erred in referring him for consideration of
possible penalties for the failure to provide Claimant a panel of physicians, authorized
medical treatment, or temporary disability benefits. Tennessee Code Annotated section
50-6-118 authorizes the Bureau of Workers’ Compensation to assess certain penalties and
to promulgate regulations to facilitate the penalty assessment process. Any Bureau
employee, including judges on the Court of Workers’ Compensation Claims, has the
authority to refer a party for investigation and consideration of a possible penalty
assessment. Tenn. Comp. R. & Regs. 0800-02-24-.03. Moreover, applicable regulations
authorize Bureau employees designated by the Administrator to “accept information
concerning possible non-compliance” for consideration of a penalty assessment. Tenn.
Comp. R. & Regs. 0800-02-13-.03.
Further, Tennessee Code Annotated section 50-6-118(c) establishes the procedures
for scheduling and conducting a contested case hearing to address the assessment of any
such penalty, and it then provides that “[a]ny party assessed a penalty pursuant to this
section shall have the right to appeal the penalty . . . pursuant to the Uniform
6
Although some evidence in the record indicates that Rios had instructed Claimant not to climb to the
roof of the garage, a defense of willful misconduct was not asserted or addressed at the expedited hearing.
7
Administrative Procedures Act.” That Act, codified at Tennessee Code Annotated
section 4-5-101 et seq., provides that jurisdiction for judicial review of a “final decision
in a contested case hearing” is vested in the Chancery Court “nearest to the place of
residence of the person contesting the agency action,” in the Chancery Court “nearest the
place where the cause of action arose,” or in the Chancery Court of Davidson County.
Tenn. Code Ann. § 4-5-322(b)(1)(A)(ii). Conversely, however, Tennessee Code
Annotated section 50-6-217(c) states that “[t]he decisions of the [W]orkers’
[C]ompensation [A]ppeals [B]oard shall not be subject to judicial review pursuant to the
Uniform Administrative Procedures Act.”
In short, the statute and applicable regulations control the assessment of penalties
described in Tennessee Code Annotated section 50-6-118. The decision to refer a party
for investigation and possible penalty assessment is not subject to review by us.
Moreover, the procedure for appealing the assessment of a penalty following a contested
case hearing lies in Chancery Court, not before us. Thus, we are without jurisdiction to
consider Cavazos’s final issue.
Conclusion
For the foregoing reasons, we affirm the trial court’s order in all respects and
remand the case. Costs on appeal are taxed to the appellant, Gilberto Cavazos.
8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Miguel Garcia Carrillo ) Docket No. 2021-06-1167
)
v. ) State File Nos. 800727-2022
) 800658-2021
Carlos Sanchez Hurtado, et al. ) 800657-2021
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Kenneth M. Switzer, Chief Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 16th day
of August, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Miguel Garcia Carrillo X X X carrillo1500angel@gmail.com
3834 Faulkner Dr.
Nashville, TN 37211
Carlos Sanchez Hurtado a/k/a Carlos X X 335 Flora Maxwell Rd. Nashville, TN
Rios 37211
Gilberto Cavazos and Hartford X nmcintire@howell-fisher.com
Underwriters Insurance Company
Kosinski Properties, LLC X dana@stokeswilliams.com
carla@stokeswilliams.com
The Hartford Insurance Group X kenny.veit@leitnerfirm.com
laura.bassett@leitnerfirm.com
Compliance Program X WCCompliance.Program@tn.gov
Penny Shrum, Clerk, Court of Workers’ X penny.patterson-shrum@tn.gov
Compensation Claims
Matthew Keene
Acting 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