Orellana, Jose v. Vazquez Roofing and Five Points Roofing , 2015 TN WC 112 ( 2015 )

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Jose Orellana, ) Docket No.: 2015-06-0248
Employee, )
)
v. ) State File No.: 32950-2015
)
Vazquez Roofing, ) Date of Injury: March 30, 2015
Employer/Subcontractor, )
) Judge Joshua Davis Baker
Plaza Insurance, )
Carrier, )
)
Five Points Roofing, )
Employer/Contractor, )
)
And )
)
Liberty Mutual Insurance, )
Carrier. )
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
THIS CAUSE came to be heard before the undersigned Workers’ Compensation
Judge on August 11, 2015, upon the Request for Expedited Hearing filed by Jose
Orellana, the employee, on July 29, 2015, pursuant to Tennessee Code Annotated section
50-6-239 (2014) to determine if the employer/subcontractor, Vazquez Roofing, or the
employer/subcontractor, Five Points Roofing (Five Points) is obligated to provide
medical and temporary disability benefits. Considering the positions of the parties, the
applicable law, and all of the evidence submitted, the Court concludes that Mr. Orellana
is entitled to medical benefits.
ANALYSIS
Issues
1. Whether Mr. Orellana was an employee of Vazquez Roofing, or an independent
contractor, on the date of injury.
2. Whether Mr. Orellana is entitled to medical benefits.
3. Whether Mr. Orellana is entitled to temporary disability benefits.
4. If Mr. Orellana is entitled to workers’ compensation benefits, which party must
pay those benefits.
Evidence Submitted
The Court admitted into evidence the exhibits below:
A. Medical records from Maury Regional Medical Center and Vanderbilt University
Medical Center;
B. Affidavit of Jose Antonio Orellana;
C. Affidavit of Rebecca Frantz Kingery and attached documents (Plaza Insurance
Company Policy Termination and Reinstatement Notice);
D. Affidavit of Charles Cunningham and attached documents (Cunningham Insurance
Certificate of Liability Insurance);
E. Affidavit of Logan Hughes and attached documents (Sub-contractor Agreement,
Cunningham Insurance Certificate of Liability Insurance, copy of Vasquez
Roofing check to Mr. Orellana dated March 21, 2015);
F. Vasquez Roofing checks paid to Mr. Orellana; and
G. Cunningham Insurance Agency receipts of payment from Hector Vasquez.
The Court designated the following as the technical record:
 Two Petitions for Benefit Determination (PBDs), both filed April 29, 2015;
Docket No. 2015-06-0247 and Docket No. 2015-06-0248;
 Two Dispute Certification Notices (DCNs), dated June 8, 2015;
 Request for Expedited Hearing, dated June 29, 2015;
 Five Points/Liberty Mutual position statement dated May 19, 2015;
 “Motion to Amend to include Plaza Insurance,” dated June 18, 2015;
 Order Granting Motion to Amend, dated June 29, 2015;
 Mr. Orellana’s position statement dated July 29, 2015; and
 Plaza Insurance Company pre-hearing brief dated August 5, 2015.
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The Court did not consider attachments to the above filings unless admitted into evidence
during the Expedited Hearing. The Court considered factual statements in the above
filings or any attachments to them as allegations unless established by the evidence.
The parties stipulated to the following:
 Paul Varney Construction Company (Paul Varney) is the general contractor.
 Five Points is a subcontractor of Paul Varney.
 Vazquez Roofing is a subcontractor of Five Points.
Hector Vasquez provided in-person testimony.1
History of Claim
Mr. Orellana is a twenty-six year-old resident of Davidson County, Tennessee. He
works as a roofer. (Ex. B.)
Paul Varney had a general construction contract to work at a home located at 2886
Fly Road, Santa Fe, Tennessee. It hired Five Points as a subcontractor. Five Points hired
Vazquez Roofing as a subcontractor. (Ex. E.) When Five Points hired Vazquez Roofing,
Hector Vazquez hired Mr. Orellana to assist in roofing the home. He expected his crew
to complete the job in two days and intended to pay Mr. Orellana $300.00.
Unfortunately, Mr. Orellana worked for only part of one day.
On March 30, 2015, while roofing the Fly Road home, Mr. Orellana fell from a
ladder and injured his right arm and his head. (Ex. B.) Hector Vazquez helped transport
Mr. Orellana to Maury Regional Medical Center (Maury Regional). Providers at Maury
Regional x-rayed Mr. Orellana and diagnosed a head injury and right-arm and wrist
fracture. (Ex. A.) The providers placed Mr. Orellana’s arm in a splint and instructed him
to follow-up with an orthopedic specialist. Id.
On April 20, 2015, Mr. Orellana had surgery at Vanderbilt University Medical
Center (Vanderbilt) to treat his work-related injuries. Id. Vanderbilt released him on
April 21, 2015, but instructed that he return in two to three weeks for a recheck. Id. At
that time, the medical records indicate the attending physician intended to place Mr.
Orellana’s arm in a short cast. Id. In his affidavit, Mr. Orellana stated his attending
physician placed his arm in a cast but later removed it. (Ex. B.) He further stated he has
“been unable to work” since the doctor removed the cast. Id.
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Five Points moved to continue the case if Mr. Vazquez failed to attend the hearing. Five Points struck its motion
when Mr. Vazquez appeared to testify.
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Pursuant to a Subcontracting Agreement with Five Points, Hector Vasquez
provided a Certificate of Liability Insurance indicating his company had workers’
compensation insurance for the period from May 1, 2014, through April 30, 2015. (Ex.
D). Cunningham Insurance Agency (Cunningham Insurance) issued the policy
underwritten through Plaza Insurance Company (Plaza) and USLI. In an affidavit,
however, Charles Cunningham, the principal for Cunningham Insurance, stated he issued
the Certificate of Liability in error because the policy number included on the Certificate
was cancelled as of June 27, 2013. Id. Mr. Cunningham further stated Vazquez Roofing
did not renew the policy. In addition to Mr. Cunningham’s affidavit, Rebecca Frantz
Kingery, an underwriter, stated in an affidavit that the Plaza policy purchased by
Vazquez Roofing cancelled on June 27, 2013, for nonpayment of premium. (Ex. C.)
Receipts from Cunningham show Hector Vazquez or Juan Vazquez made
payments to Cunningham Insurance on November 18, 2014, and January 16 and April 15,
2015. (Ex. G.) Hector Vazquez testified they paid the money to Cunningham Insurance
for workers’ compensation insurance. The receipt from January 16, 2015, showed a zero
balance on the account. Id.
Mr. Orellana’s attorneys and the attorneys for Five Points and Plaza questioned
Hector Vazquez about the employment relationship between Mr. Orellana and Vazquez
Roofing. He testified that he scheduled the jobs for Vazquez Roofing and called Mr.
Orellana to offer him work when he had work available. Hector Vazquez stated he
considered Mr. Orellana independent and further stated that Mr. Orellana could work for
whomever he pleased. He further testified that Mr. Orellana had been working for
another company during the weeks leading up to the March 30, 2015 accident.
Hector Vazquez also agreed, however, that he was Mr. Orellana’s “boss.” When
asked whether Mr. Orellana could leave in the middle of a work day for Vazquez Roofing
to do other work, Hector Vazquez said he expected Mr. Orellana to stay the entire day.
Hector Vazquez paid Mr. Orellana via check from Vazquez Roofing and did not withhold
taxes from the check.
Five Points provided the shingles for roofing of the Fly Road home. Vazquez
Roofing supplied the ladder from which Mr. Orellana fell on March 30, 2015.
Additionally, Hector Vazquez testified he had responsibility to Five Points for the quality
of the work performed by Mr. Orellana and others working for Vazquez Roofing.
Mr. Orellana had his own nail gun and air hose. Additionally, Mr. Orellana could
roof the house without Hector Vazquez telling him what to do.
Mr. Orellana filed two PBDs on April 29, 2015, seeking medical and temporary
disability benefits. The parties did not resolve the disputed issues through mediation, and
the Mediation Specialist filed DCNs on June 8, 2015. The Court consolidated both PBDs
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under the earlier Docket Number: 2015-06-0247.
Mr. Orellana’s Contentions
Mr. Orellana argues he worked as an employee of Vazquez Roofing, not as an
independent contractor. Vazquez Roofing, a roofing subcontractor of Five Points, had
control over the roof work at the Fly Road home. Additionally, although Mr. Orellana
could work for other entities as a roofer during the same period of time he worked for
Vazquez Roofing, that type of employment arrangement is customary in the roofing
industry.
Mr. Orellana provided timely notice of his injury. He told Hector Vazquez he got
hurt on the day the incident occurred, and Hector Vazquez transported him to Maury
Regional for treatment.
Concerning temporary disability benefits, Mr. Orellana admitted he did not have
medical proof of his inability to work at this time. He hoped the issue of temporary
disability benefits could be resolved if the Court finds the claim compensable. Mr.
Orellana argued, however, that if the Court awarded temporary disability benefits based
on the medical records and Mr. Orellana’s statement in his affidavit concerning an
inability to work, the Court should calculate his temporary benefit rate at either $150 per
day or the average of the amounts contained in the checks provided in Exhibit F.
Five Points’ Contentions
Five Points argues that the proof shows only that Vazquez Roofing does not have
a policy with Plaza insurance. The fact that Vazquez Roofing made premium payments
to Cunningham Insurance suggests either a policy exists, or Mr. Cunningham accepted
the money but failed to pass it along to the carrier.
Five Points maintains that, while it is a close issue, there are several factors
showing Mr. Orellana worked as an independent contractor rather than an employee of
Vazquez Roofing. Vazquez Roofing did not deduct taxes from Mr. Orellana’s check
despite its legal obligation to withhold taxes from all its employees’ paychecks. Mr.
Orellana had his own tools and also had the ability to work for other entities.
Concerning temporary disability benefits, Five Points calculates a compensation
rate of $291.12 based on the checks submitted in exhibit F. Five Points argues, however,
that Mr. Orellana failed to carry his burden of proving the period of temporary disability.
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Plaza’s Contention
Plaza argues that it should not be a party to the claim because Vazquez Roofing
did not have a policy with it when the injury occurred. Plaza requests dismissal of any
claims against it.
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. Id.
Factual Findings
On March 30, 2015, Mr. Orellana suffered injury to his right arm and head when
he fell from a roof in the course and scope of his employment for Vazquez Roofing. Mr.
Orellana was an employee of Vazquez Roofing on the date of injury.
Mr. Orellana received emergency medical care for his work-related injuries at
Maury Regional. Maury Regional diagnosed a right-arm distal-radial fracture. Maury
Regional placed Mr. Orellana’s arm in a splint and instructed him to seek follow-up care
with an orthopedic specialist. Vazquez Roofing did not provide Mr. Orellana a panel of
orthopedic specialists for follow-up care.
Mr. Orellana sought care on his own at Vanderbilt. He underwent surgery to
repair his fractured right arm on April 20, 2015.
Vazquez Roofing did not have a workers’ compensation insurance policy with
Plaza at that time. Five Points, a subcontractor for Paul Varney, hired Vazquez Roofing
as a subcontractor. Five Points had workers’ compensation insurance coverage through
Liberty Mutual Insurance on the date of the accident.
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Application of Law to Facts
I. Plaza Insurance should be dismissed as a party to the claim.
The evidence showed that Vazquez Roofing previously had a policy with Plaza.
The policy, however, was cancelled on June 27, 2013. Vazquez Roofing did not renew
the Plaza policy and did not have a Plaza policy in place on the date of Mr. Orellana’s
injury. Accordingly, Plaza has no liability, and all claims against it for Mr. Orellana’s
March 30, 2015 workplace injury are dismissed.
II. Mr. Orellana was an employee of Vazquez Roofing.
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 alleged employer, the way
the business is conducted, and the claimant’s relationship to that business. See Seals v.
Zollo, 327 S.W.2d 41 (Tenn. 1959). Where there is a contract of employment, either
express or implied, the burden is on the employer to show that the employee is an
independent contractor, rather than an employee. See Galloway v. Memphis Drum Serv.,
822 S.W.2d 584, 586 (Tenn. 1991); Butler v. Johnson, 426 S.W.2d 515 (Tenn. 1968).
“While no single factor is determinative when deciding whether a worker is an employee
or an independent contractor, the Supreme Court has repeatedly emphasized the
importance of the right to control the work when distinguishing employees and
independent contractors, the relevant inquiry being whether the right existed, not whether
it was exercised.” Jewell v. Cobble Const. & Arcus Restoration, No. 2014-05-0003, 2015
Tenn. Wrk. Comp. App. Bd. LEXIS 1, at *15 (Tenn. Workers’ Comp. App. Bd. Jan. 12,
2015) (citing Galloway, 822 S.W.2d at 586) (internal quotations omitted).
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Vazquez Roofing and Mr. Orellana had a verbal contract for employment. Hector
Vazquez called Mr. Orellana and asked whether he wanted to work for Vazquez Roofing
at the Fly Road jobsite. The Court finds that Mr. Orellana verbally accepted the job offer
as evidenced by his attendance at the worksite on March 30, 2015. Accordingly,
Vazquez Roofing has the burden to prove that Mr. Orellana worked as an independent
contractor rather than an employee.
Vazquez Roofing had ultimate control over the work. It maintained the work
schedule. Mr. Orellana never knew where he was working, or whether he even would be
working, until informed by Hector Vazquez. Hector Vazquez called Mr. Orellana when
he had an available job. If he accepted the job, Mr. Orellana then either drove to the
worksite, or, in the case of the Fly Road job, got a ride from Hector Vazquez.
Hector Vazquez considered himself Mr. Orellana’s boss. He testified that
whenever Mr. Orellana came to work a job for Vazquez Roofing, he expected Mr.
Orellana to remain at the worksite for the entire workday. Accordingly, despite Mr.
Orellana’s freedom to work for other roofing companies, he did not have the freedom to
leave a Vazquez Roofing job during the workday to perform another project.
Hector Vazquez had ultimate responsibility to Five Points for the quality of the
work. He oversaw Mr. Orellana and other employees as they installed the roof and
directed them to make corrections in their work as necessary.
While Mr. Orellana provided some of his tools for the job, he did not provide any
of the materials necessary for the work. Hector Vazquez testified that Five Points
provided the shingles for use on the roof and that Vazquez Roofing provided the ladder
from which Mr. Orellana fell.
Upon consideration of these facts, the Court finds that Mr. Orellana was an
employee of Vazquez Roofing, rather than an independent contractor, when he suffered
an injury while working at the Fly Road home on March 30, 2015.
III. Mr. Orellana suffered an injury in the course and scope of his employment
for Vazquez Roofing.
In his affidavit, Mr. Orellana stated he fell from a ladder on March 30, 2015, while
working on a roofing job for Vazquez Roofing. Hector Vazquez took him to the hospital
for treatment. The Court finds Mr. Orellana established that he suffered an injury arising
primarily out of and in the course and scope of his employment for Vazquez Roofing and
is likely to prevail at a hearing on the merits on that issue.
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IV. Five Points Roofing is the statutory employer, and its carrier must provide
payment for Mr. Orellana’s injuries.
Tennessee Code Annotated section 50-6-113 provides the following:
(a) 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 and engaged upon the subject matter of the contract to the
same extent as the immediate employer. . . .
(c) Every claim for compensation under this section shall be in the first
instance presented to and instituted against the immediate employer, but the
proceedings shall not constitute a waiver of the employee’s rights to
recover compensation under this chapter from the principal contractor or
intermediate contractor[.]
Id. § 50-6-113(a) and (c) (2014).
The evidence shows that Mr. Orellana worked directly for Vazquez Roofing when
he suffered injury at the Fly Road home on March 30, 2015. The parties stipulated that
Paul Varney served as the principal contractor and subcontracted with Five Points. Five
Points hired Vazquez Roofing as a subcontractor.
The evidence shows that Vazquez Roofing did not have valid workers’
compensation insurance. Although Hector Vazquez paid Cunningham Insurance for
workers’ compensation insurance, Vazquez Roofing did not produce evidence of an
active policy. Mr. Orellana instituted an action for recovery against both his immediate
employer, Vazquez Roofing, and the next immediate subcontractor, Five Points, and
thereby satisfied the procedural requirements of Tennessee Code Annotated section 50-6-
113(c). Accordingly, the Court finds that Five Points and its carrier must pay the medical
bills incurred by Mr. Orellana for treatment of his March 30, 2015 workplace injury and
provide continuing, reasonable and necessary treatment.
V. Mr. Orellana is not entitled to temporary disability benefits.
An employee is entitled to receive temporary total disability benefits pursuant to
Tennessee Code Annotated section 50-6-207(1) whenever the employee has suffered a
compensable, work-related injury that has rendered the employee unable to work.
Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978); James v. Landair Transport,
Inc., No. 2015-02-0024, 2015 TN Wrk. Comp. App. Bd. LEXIS ___, slip op. at 8 (Tenn.
Workers’ Comp. App. Bd. Aug. 26, 2015). In order to establish a prima facie case for
temporary total disability benefits, the worker must show that (1) he or she was totally
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disabled and unable to work due to a compensable injury, (2) that the work injury and
inability to work are causally connected, and (3) the duration of the disability. Gray v.
Cullom Machine, Tool & Die, Inc., 152 S.W.3d 439, 443 (Tenn. 2004). Entitlement to
temporary total disability benefits ends whenever an employee is able to return to work.
Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776 (Tenn. 2000).
Mr. Orellana proved that he suffered a workplace injury that likely disabled him
from working for some period of time. He has, however, failed to prove the period of
disability. Without that information, the Court cannot order temporary disability benefits
at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Mr. Orellana’s injuries shall be paid, and Five Points or its
workers’ compensation carrier shall provide Mr. Orellana with medical treatment
for these injuries as required by Tennessee Code Annotated section 50-6-204
(2014), to be initiated by Five Points or its workers’ compensation carrier
providing Mr. Orellana with a panel of physicians as required by that statute. All
medical bills for treatment previously rendered for the March 30, 2015 injury shall
be paid. Medical bills shall be furnished to Five Points or its workers’
compensation carrier by Mr. Orellana or his medical providers.
2. The Court denies Mr. Orellana’s request for temporary disability benefits at this
time.
3. All claims against Plaza Insurance for Mr. Orellana’s March 30, 2015 workplace
injury are dismissed.
4. This matter is set for a Scheduling Hearing on October 13, 2015, at 8:30 a.m.
(CDT).
5. 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) (2014). 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.
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6. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
253-1471 or (615) 532-1309.
ENTERED this the 1st day of September, 2015.
_____________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
Initial (Scheduling) Hearing:
A Scheduling Hearing has been set with Judge Joshua Davis Baker, Court of
Workers’ Compensation Claims. You must call 615-741-2113 to participate in the
Scheduling 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 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 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
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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 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.
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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers’ Compensation
Claims and must be approved by the workers’ compensation judge before the
record is submitted 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 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 business days of the filing of the
appellant’s position statement.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the 1st day of September, 2015.
Name Certified Via Via Email Service sent to:
Mail Fax
William Merrill X bill@higginsfirm.com
Jim Higgins X jim@higginsfirm.com
Owen Lipscomb X owen.lipscomb@libertymutual.com
Colin McCaffrey X colin.mccaffrey@sa-trial.com
Hector Vazquez X 305 Charmaine Court
Antioch, TN 37013
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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