Gandy, Michael v. January Environmental Services 2015-05-0103 , 2015 TN WC 81 ( 2015 )

COURT OF WORKERS' COMPENSATION CLAIMS AT KNOXVILLE
BUREAU OF WORKERS' COMPENSATION
MICHAEL ROBERT GANDY, Docket No.: 2015-05-0103
Employee,
v. State File No.: 30030-2015
JANUARY ENVIRONMENTAL Date of Injury: April 2, 2015
SERVICES,
Employer,
And Judge: Lisa A. Knott
FRANKCRUM,
Insurance Carrier.
EXPEDITED HEARING ORDER (RECORD REVIEW ONLY)
THIS CAUSE came before the undersigned Workers' Compensation Judge upon
the Request for Expedited Hearing (REH) filed on May 11, 2015, by the Employee,
Michael Robert Gandy (Mr. Gandy), pursuant to Tennessee Code Annotated section 50-
6-239, against the Employer, January Environmental Services (January Services). The
REH requested review of the file without an evidentiary hearing. Upon review of the
information/documentation provided and in consideration of the applicable law, the Court
enters the following order holding that January Services is responsible for providing Mr.
Gandy with medical benefits and mileage reimbursement.
Issues
The Mediator identified the following issues on the Dispute Certification Notice
(DCN):
• Whether Employer is exempt by law from the obligation to provide workers'
compensation benefits to Employee.
• Whether Employee sustained an injury that arose primarily out of and in the
course and scope of employment with Employer.
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• Whether the alleged Employee would be deemed an independent contractor,
casual employee, or volunteer at the time of the alleged injury, and therefore, is
not entitled to workers' compensation benefits.
• Which Employer/Carrier was obligated to provide benefits to Employee at the
time of the work-related injury.
• Whether Employee is obligated to provide a panel of physicians upon notice from
Employee of an alleged injury.
• Whether Employer is obligated to pay for any past medical expenses and/or
mileage expense.
• Whether Employee is entitled to additional medical care as recommended by a
physician.
• Whether Employee is entitled to any past or future temporary total disability
benefits, and if so, in what amount.
• Whether Employee is entitled to any past or future temporary partial disability
benefits, and if so, in what amount.
Documentation/Evidence Submitted
The Court received and considered the following documents from the parties. The
Court designated the submitted documents as exhibits for ease of reference:
• Exhibit !-Affidavit ofMichael Gandy, May 7, 2015
• Exhibit 2-Request for Mileage Reimbursement
• Exhibit 3-Mr. Gandy's Driver's Logs (5 pages)
• Exhibit 4-Statement of Michael Gandy, April 21, 20 15
• Exhibit 5-52 Week Wage Statement
• Exhibit 6-Request for Taxpayer Identification Number and Certification,
Form W-9
• Exhibit 7-January Services Transport Check Payment in the amount of
$841.50 to Michael Gandy
• Exhibit 8-Frank Crum Correspondence, May 5, 2015
• Exhibit 9-Frank Crum Correspondence, May 6, 2015
• Exhibit 10-Medical Record Certification and Medical Records from
Con centra Medical Centers ( 11 pages)
• Exhibit 11-Medical Record Certification and Medical Records from Elite
Sports Medicine, ( 10 pages)
• Exhibit 12-Broadspire Incident Report, April24, 2015
• Exhibit 13-Affidavit of Attorney Heather H. Douglas
• Exhibit 14-April 3, 2015 email from Destiny Schwalk with January
Services to Hannah Hatton with Frank Crum
• Exhibit 15-Frank Crum Client Service Agreement
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• Exhibit 16-Benefit Election and Compensation Reduction Agreement
• Exhibit 17-W-4 Form
• Exhibit 18-Employee Direct Deposit Authorization Form
• Exhibit-19-Employment Eligibility Verification
The Court designated the following as the Technical Record:
• Petition for Benefit Determination (PBD), filed April21, 2015,
• DCN, filed May 11, 2015,
• REH, filed May 11, 2015, and
• Motion to Consider Submission of Affidavit in Expedited Hearing.
The Court did not consider attachments to the above filings unless marked as an
exhibit and listed above. The Court considered factual statements in the above filings
and any attachments to them as allegations unless established by the evidence.
History of Claim
On or about April 2, 2015, Mr. Gandy sustained injury to his left knee when he
accidentally stepped back into an open manhole while working. See PBD. Mr. Gandy
notified January Services of his knee injury. He sought authorized medical treatment on
April 3, 2015, with Terri T. Wheeler, PA, Concentra Medical Center (Concentra). PA
Wheeler ordered diagnostic testing, which did not identify any fractures. See Exhibit 10,
April 3, 2015 office note. PA Wheeler opined that Mr. Gandy sustained a knee
contusion, knee pain, and chest wall contusion, and ordered an MRI of the left knee to
evaluate for internal derangement. !d. Further, PA Wheeler released Mr. Gandy to return
to work with restrictions of "no squatting and/or kneeling, no climbing stairs or ladders,
and should be sitting seventy five percent (75%) of the time." !d.
Mr. Gandy followed up with PA Wheeler after obtaining the MRI, and advised
that he had not worked since light duty was not available. PA Wheeler referred Mr.
Gandy for an orthopedic evaluation and placed restrictions of no squatting and/or
kneeling; occasional standing and walking up to three (3) hours a day; and no driving the
company vehicle due to functional limitations. See Exhibit 10, April 10, 2015 office
note.
On April 13, 2015, Concentra informed Mr. Gandy that January Services denied
the workers' compensation claim for his injury and instructed him to seek medical
treatment under his private insurance. See Exhibit 1.
By self-referral, Mr. Gandy began treatment with Dr. Chad T. Price, Elite Sports
Medicine and Orthopaedic Center (Elite Sports), on April 15, 2015. Mr. Gandy related
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his injury to stepping in a manhole at work on April 2, 2015. Dr. Price diagnosed Mr.
Gandy with "lateral meniscus tear and MCL tear or sprain" and recommended medication
and physical therapy. Dr. Price continued restrictions of "no squatting, no lifting greater
than fifteen (15) pounds, and no stairs or climbing." See Exhibit 11, April 15, 2015
office note.
January Services contracted with Frank Crum to provide an "Employee Leasing
Arrangement." See Exhibit 15. As part of the agreement, Frank Crum provided payroll
and workers' compensation benefits for all leased employees. Frank Crum did not
consider Mr. Gandy to be a leased employee at the time of alleged injury and did not
have workers' compensation coverage for his injury. January Services classified Mr.
Gandy as an independent contractor, not an employee.
On April21, 2015, Mr. Gandy submitted a PBD, seeking temporary total disability
and medical benefits. The mediator filed the DCN on May 11, 2015. Mr. Gandy filed a
REH on May 11, 20 15 and requested a ruling based on the record.
Mr. Gandy's Contentions
Mr. Gandy filed an affidavit in support of his position. The Court compiled Mr.
Gandy's contentions from his affidavit and submitted documentation. See Exhibits 1 and
4. January Services hired Mr. Gandy on March 30, 2015, and issued him a hard hat,
safety glasses, and company phone. His assigned employee identification number was
10415, his rate of pay was $16.50 per hour, and he received time and a half pay for any
time worked over forty (40) hours per week. He filled out employment paperwork and
underwent a physical with drug test. He also filled out dental and health insurance
paperwork and completed a W-4 form, not a W-9 form.
While working at a Wal-Mart store in Ohio on April 2, 2015, he accidently
stepped back into an open manhole. He notified "Nicole" at the main Oklahoma City
office about the injury. When he woke up the next morning, he needed to see a doctor
and called Nicole again. She instructed him to go to the office and advised "Travis"
would take him to Concentra. At Concentra, he underwent x-rays and scheduled an MRI
of his knee. After the MRI was performed, Concentra referred him to an orthopedic
surgeon. On April 13, 2015, Mr. Gandy received a call from Concentra's referral
department informing him that Destiny, from January Services, notified Concentra that
January Services would not be filing a workers' compensation claim and he would need
to proceed under his own insurance.
Mr. Gandy tried to contact Destiny and when he finally reached her, she said he
was an independent contractor, and therefore they would not file a claim. It was the first
time he heard the words "independent contractor" from anyone at January Services. He
asked Destiny why no one informed him of this and Destiny said Travis should have told
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him.
Mr. Gandy stated that the signature on the W-9 form filed by January Services is
his signature. However, the rest of the form is not in his handwriting, the zip code is
wrong, and the street name was incorrectly spelled. Mr. Gandy seeks mileage
reimbursement for the following dates of service:
• April3, 2015-Concentra first visit, sixty-eight (68) miles round trip;
• April 9, 2015-Diagnositc Center for MRI, seventy (70) miles round trip;
• April 10, 2015-Concentra second visit, sixty-eight (68) miles round trip;
and
• April 15, 2015- Elite Sports Medicine, seventy (70) miles round trip.
January Services's and Frank Crum's Contentions
January Services submitted a wage statement, a copy of a W-9 form, and a copy of
a check dated April 9, 2015, made payable to Mr. Gandy for $841.50. See Exhibits 5, 6,
and 7. It does not appear that January Services submitted any other documentation or
information.
Frank Crum submitted the affidavit of attorney Heather Douglas; email dated
April 3, 2014 from Destiny at January Services to Hannah Hatton from Frank Crum;
Client Service Agreement; Benefit Election and Compensation Reduction Agreement;
W-4 form; employee direct deposit authorization form; and employment eligibility
verification. See Exhibits 13-19. March 24, 2015, is the date noted on all of the
Employment Forms. January Services attempted to get Mr. Gandy approved by Frank
Crum as a leased employee and sent an application with the Employment forms via email
to Frank Crum on April3, 2015. The subject of the email is "Nashville TN Employee"
and the documents attached to the email are Mr. Gandy's Employment Forms.
The Frank Crum contract with January Services provided in relevant part that
"Leased Employees" are defined as:
[E]ach of Client's current and future employees who meet all
of the following conditions none of which will be waived ...
II. The employee has completed and executed the Employee
Leasing Application, W4 withholding form and form 19
(collectively, the "Employment Forms"),
III. Client has delivered all completed and properly executed
Employment Forms with respect to such employee to [Frank
Crum' s] payroll department,
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IV. Frank Crum has received, reviewed, and accepted the
Employment Forms with respect to each employee.
V. Frank Crum has notified Client in writing that such
employee has been accepted by Frank Crum as a Leased
Employee. Unless or until all of the forgoing conditions had
been met, and you are notified in writing by our payroll
department that the individual qualifies and has been accepted
by a Leased Employee, Frank Crum will not be considered as
such individual's employer for any purposes whatsoever ...
See Exhibit 15.
Mr. Gandy claims his injury occurred on April 2, 20 15. At that time, January
Services had not yet submitted his application and Employment Forms to Frank Crum.
Therefore, Frank Crum had not received or accepted Mr. Gandy as a leased employee at
the time of the work injury.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief at
an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd.
Mar. 27, 2015). At an expedited hearing, an employee has the burden to come forward
with sufficient evidence from which the trial court can determine that the employee is
likely to prevail at a hearing on the merits. !d.
Factual Findings
• Mr. Gandy filled out employment paperwork for January Services on March 24,
2015 (Exhibits 15-19).
• Mr. Gandy started working as an employee for January Services on March 30,
2015 (Exhibits 1 and 4).
• On April 2, 2015, Mr. Gandy injured his left knee when he stepped into an open
manhole in the course and scope of his employment with January Services
(Exhibits 1, 4, and 11).
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• Frank Crum and January Services had a client-service agreement to provide
workers' compensation benefits for January Services' eligible leased employees
(Exhibit 15).
• The client-service agreement states as one of the required conditions that "Frank
Crum has received, reviewed, and accepted the Employment Forms with respect to
each employee" (Exhibit 15).
• The client-service agreement further states:
In the event you allow an applicant to perform services for
you during any time period prior to our acceptance of the
applicant as a Lea,sed Employee and the applicant is injured
during that period, we and our center are not responsible for
providing workers' compensation benefits to that injured
applicant, regardless of whether you submitted payroll for
such applicant and we paid the applicant for the pre-
employment payroll submission (Exhibit 15).
• January Services sent Mr. Gandy's Employment Forms to Frank Crum via email
on April3, 2015 (Exhibit 14).
Application ofLaw to Facts
Tennessee law provides the following concerning the determination of whether an
individual is an employee or an independent contractor:
In a work relationship, in order to determine whether an
individual is an "employee," or whether an individual is a
"subcontractor" or an "independent contractor," the following
factors shall be considered:
(i) The right to control the conduct of the work;
(ii) The right of termination;
(iii) The method of payment;
(iv) The freedom to select and hire helpers;
(v) The furnishing of tools and equipment;
(vi) Self-scheduling of working hours; and
(vii) The freedom to offer services to other entities[.]
Tenn. Code Ann. § 50-6-102(11)(D)(2014). Whether claimant is an employee or
independent contractor depends upon the nature of business of the alleged employer, the
way it is conducted, and the claimant's relationship to that business. See Seals v. Zollo,
327 S.W.2d 41 (Tenn. 1959).
In this case, there is no dispute that Mr. Gandy sustained injury while working in
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the course and scope of his employment with January Services on April2, 2015. January
Services avers that Mr. Gandy is an independent contractor and not entitled to worker's
compensation benefits. In support of its position, January provided a W-9 form.
However, Frank Crum provided a W-4 form, an Employee Benefit Election and
Compensation Reduction, an Employee Direct Deposit Authorization Form, and
Employment Eligibility Verification. All of the "Employment Forms" reference
"Employee," and are not the types of forms typically utilized in an independent
contractor situation. The Court finds that January Services failed to establish that Mr.
Gandy was an independent contractor instead of an employee.
The Court further finds that January Services allowed Mr. Gandy to perform work
prior to receiving acceptance of Mr. Gandy as a Leased Employee from Frank Crum, and
Mr. Gandy was injured while working for January Services. As a result, and pursuant to
the Client Service Agreement, Frank Crum is not responsible for providing workers'
compensation coverage for Mr. Gandy. January Services, as the direct employer of Mr.
Gandy, is responsible for providing Mr. Gandy workers' compensation benefits. The
provided medical records establish Concentra and Dr. Price assigned restrictions.
However, there was no information/documentation provided by any party to address
whether January Services accommodated or could have accommodated those restrictions.
IT IS, THEREFORE, ORDERED as follows:
1. The claim of Mr. Gandy against January Environmental Services for medical
benefits and mileage reimbursement is hereby granted. January Services shall
provide reasonable, necessary, and related treatment for Mr. Gandy's April 2,
2015 left knee injury. Since January Services never provided a panel of orthopedic
physicians, Dr. Price shall be designated as the authorized treating physician. In
addition, January Services shall reimburse Mr. Gandy's mileage expenses for the
following provider visits:
• April 3, 20 15-Concentra first visit, sixty-eight (68) miles round trip;
• April9, 2015-Diagnositc Center for MRI, seventy (70) miles round trip;
• April 10, 2015-Concentra second visit, sixty-eight (68) miles round trip;
and
• April15, 2015- Elite Sports Medicine, seventy (70) miles round trip.
2. Currently, there is insufficient information available on the issue of entitlement to
temporary disability benefits. If necessary, the issue of temporary disability
benefits may be addressed at a later hearing.
3. This matter is set for Initial Hearing on September 11, 2015, at 9 a.m. CST/10 a.m.
EST.
ENTERED this the lOth day of July, 2015.
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HON. LISA A. KNOTT
Workers' Compensation Judge
Initial Bearing:
An Initial Hearing has been set with Judge Lisa A. Knott, Court of Workers'
Compensation Claims. You must call855-383-0003 or toll free at 865-594-0109 to
participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to participate. Failure to
call in may result in a determination of the issues without your further participation. All
conferences are set using Central Time (CT).
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven (7) business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten ( 10) calendar days after the filing of a notice of appeal,
payment must be received by check, money order, or credit card
payment. Payments can be made in person at any Bureau office or by United
States mail, hand-delivery, or other delivery service. In the alternative, the
appealing party may file an Affidavit of Indigency, on a form prescribed by the
Bureau, seeking a waiver of the filing fee. The Affidavit of Indigency may be
filed contemporaneously with the Notice of Appeal or must be filed within ten
(10) calendar days thereafter. The Appeals Board will consider the Affidavit of
Indigency and issue an Order granting or denying the request for a waiver of the
filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee
or file the Affidavit of Indigency in accordance with this section shall result in
dismissal of the appeal.
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5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten (10) calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
evidence within ten (1 0) calendar days of the filing of the Expedited Hearing
Notice of Appeal. The Judge must approve the statement of the evidence before
the Court Clerk may submit the record to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appealing party shall file such position statement with the Court Clerk
within three (3) business days of the filing of the Expedited Hearing Notice of
Appeal, specifying the issues presented for review and including any argument in
support thereof. If the appellee elects to file a response in opposition to the
interlocutory appeal, appellee shall do so within three (3) business days of the
filing of the appellant's position statement.
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 this the I Oth day
of July, 2015.
Name Certifie Via Via Service sent to:
dMail Fax Email
Michael Robert Gandy X Mgand~1961@gmail.com
Terry Hill X thill@manierherod.com
~ `` -
- ~ SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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