Bland, Cody v. Mike Chitwood , 2017 TN WC 137 ( 2017 )


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  •                                                                                       FILED
    Jul~f   24,2017
    TN COURTOF
    1\ ORKIRS' COMHI!:. . ATION
    ClLAIMS
    Tim.e·2 :29PM
    TENNESSEE BUREAU OF WORKERS' COMPENSATION
    IN THE COURT OF WORKERS' COMPENSATION CLAIMS
    AT NASHVILLE
    Cody Bland,                                      )   Docket No. 2016-06-1686
    Employee,                                )
    v.                                               )   State File No. 68258-2016
    Mike Chitwood,                                   )
    Employer.                               )   Judge Kenneth M. Switzer
    EXPEDITED HEARING ORDER GRANTING REQUESTED RELIEF
    This matter came before the undersigned Workers' Compensation Judge on July
    19, 2017, upon the Request for Expedited Hearing filed by Cody Bland. The central legal
    issues are whether Mr. Bland suffered an injury arising primarily out of and in the course
    and scope of his employment with Mike Chitwood and whether he worked as an
    employee or a subcontractor. A secondary issue is whether Mr. Bland qualifies for
    benefits from the Uninsured Employers Fund.
    The Court holds Mr. Bland came forward with sufficient evidence to establish
    that his injury arose primarily out of his employment with Mr. Chitwood and he worked
    as an employee rather than a subcontractor. Thus, he is entitled to workers'
    compensation benefits. However, the Court cannot find at this time that he satisfied the
    statutory factors for applying for benefits from the UEF on the present record, as he did
    not provide the Bureau timely notice.
    History of Claim
    Mr. Bland, a resident of Goodlettsville, Tennessee, began working for Mr.
    Chitwood in May 2016 as a laborer installing hardwood flooring. He worked full-time at
    the times and places that Mr. Chitwood set, earning an average weekly wage of $600 in
    cash. Mr. Chitwood provided the tools and materials. Mr. Bland's affidavit states that
    Mr. Chitwood was a subcontractor for McGrath Brothers Flooring. 1
    1
    Mr. Bland introduced no additional evidence to substantiate the business/employment relationship
    between Mr. Chitwood and McGrath. By joint stipulation, this Court previously entered an order
    conditionally dismissing Mr. Bland's case as to McGrath Brothers Flooring and Rick McGrath.
    Mr. Bland testified that, on June 20, while using a table saw, the blade made
    contact with a knot in the wood, jerked and severely cut his left hand. He sought
    emergency treatment at Centennial Medical Center until the Air Evac Lifeteam flew him
    to Vanderbilt University Hospital. At Vanderbilt, Dr. Douglas Weikert surgically
    repaired the hand. Post-operatively, Mr. Bland saw Dr. Weikert and participated in
    occupational therapy.
    Dr. Weikert provided an affidavit regarding his treatment. (Ex. 2 at 1-3.) He
    stated that he excused Mr. Bland from work from June 21 through September 21 and
    afterward placed Mr. Bland on restricted duty. Dr. Weikert concluded the injury "arises
    primarily out of the employment, meaning that more than 50 percent of the injury is due
    to the employment, considering all causes." The affidavit additionally said Mr. Bland is
    in need of further orthopedic care. Mr. Bland confirmed in his testimony that he believes
    his hand is only about "eighty percent" healed.
    Mr. Bland's treatment resulted in medical bills totaling $78,904.31. The sums
    included: 1) Air Evac, $33,287.47; 2) Centennial Medical Center, $5,087.93; 3)
    Peakview Emergency Physicians, $1,776.00; 4) Radiology Alliance, P.C., $30.00; 5)
    Vanderbilt Medical Center, $38,639.00; and 7) Publix Pharmacy, $83.91. !d. at 74-90.
    To obtain relief from these bills and other assistance, Mr. Bland filed a Petition for
    Benefit Determination on September 2. Upon receipt of the PBD, the Bureau initiated an
    investigation with the UEF to determine whether Mr. Chitwood carried workers'
    compensation insurance. A UEF investigator completed an Expedited Request for
    Investigation (Ex. 3), concluding there was no workers' compensation policy on the date
    of injury. Per the report, Mr. Chitwood said he was on the Exemption Registry and did
    not carry workers' compensation. The investigator asked if he had a copy of Mr. Bland's
    certificate of insurance or proof of exemption, and Mr. Chitwood replied that he did not.
    The report noted Mr. Chitwood "finally agreed he should have made sure Mr. Bland was
    compliant before hiring him." The investigator additionally made a "seven factors
    determination" as follows: 1) Mr. Chitwood was a subcontractor for McGrath Brothers
    and hired workers as needed; 2) Mr. Chitwood controlled the right to terminate; 3) Mr.
    Chitwood paid Mr. Bland as a "1099" worker in cash; 4) Mr. Chitwood controlled the
    selection and hiring of helpers; 5) Mr. Chitwood furnished the tools and equipment, and
    McGrath Brothers furnished the materials; 6) Mr. Chitwood set the hours of work; and, 7)
    Mr. Bland was not free to offer his services to other entities. !d. at 5-6.
    Throughout this case, Mr. Chitwood failed to participate. He did not appear at the
    Expedited Hearing despite receiving written notice via certified mail. Mr. Bland testified
    that Mr. Chitwood was present when he became injured; he witnessed Mr. Bland's
    bloodied, injured hand but not the accident. Afterward, he never offered to pay for Mr.
    Bland's medical care or lost wages, and he terminated him immediately following the
    2
    accident. After Dr. Weikert placed Mr. Bland on limited duty, Mr. Bland attempted to
    return to work for two employers, Kroger and Goodwill respectively, but was unable to
    perform the assigned job duties due to the restrictions. The first job, with Kroger, began
    on January 1, 2017. Mr. Bland successfully returned to work for MGM Industries.
    Findings of Fact and Conclusions of Law
    In order to grant the relief Mr. Bland seeks, the Court must apply the following
    legal principles. Mr. Bland bears the burden of proof on all prima facie elements of his
    claim. See Tenn. Code Ann. § 50-6-239(c)(6) (2016). At an expedited hearing, Mr.
    Bland has the burden to come forward with sufficient evidence from which this Court can
    determine he is likely to prevail at a hearing on the merits. McCord v. Advantage Human
    Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
    Compensability
    Applying these general principles to the issue of the compensability of Mr.
    Bland's claim, the Workers' Compensation Law defines an "injury" as '"an injury by
    accident ... arising primarily out of and in the course and scope of employment that
    causes ... the need for medical treatment." Tenn. Code Ann. § 50-6-102(14). Further,
    an injury is '"accidental" only if the injury is caused by a specific incident, or set of
    incidents, arising primarily out of and in the course and scope of employment.
    Here, Mr. Bland's undisputed testimony proves that, while working for Mr.
    Chitwood on June 21, he injured his left hand, resulting in the need for surgery and
    rehabilitation. The medical records support his account of how he became injured, and
    he presented as an honest and credible witness. Accordingly, the Court holds Mr. Bland
    sustained an accidental injury caused by a specific incident arising primarily out of and in
    the course and scope of his employment with Mr. Chitwood.
    With regard to Mr. Bland's employment status, Mr. Chitwood previously argued
    to the UEF investigator that Mr. Bland was a "subcontractor" or a '"1 099 worker" rather
    than an employee for purposes of the Workers' Compensation Law. To make this
    determination, the statute provides that the Court shall consider:
    (a)    The right to control the conduct of the work;
    (b)    The right of termination;
    (c)    The method of payment;
    (d)    The freedom to select and hire helpers;
    (e)    The furnishing of tools and equipment;
    (f)    Self-scheduling of working hours; and
    (g)    The freedom to offer services to other entities.
    3
    Tenn. Code Ann. § 50-6-102(12)(D)(i). Applying these factors to Mr. Bland's
    uncontroverted testimony and the UEF investigator's findings, the Court holds he was
    Mr. Chitwood's employee rather than a subcontractor. Mr. Bland performed work at an
    hourly wage for a forty-hour work week, which precluded other employment. Mr.
    Chitwood provided the tools, and he set the work hours. It appears Mr. Chitwood
    controlled all aspects of the worksite. The Court further holds, based upon the UEF
    investigator's findings, that Mr. Chitwood is a construction services provider as generally
    defined in Tennessee Code Annotated section 50-6-901(5) and that he failed to secure
    workers' compensation insurance or to determine that Mr. Bland is listed on the
    Exemption Registry as required by section 50-6-902.
    Requested Relief
    Turning first to the medical benefits Mr. Bland seeks, the Court holds that under
    Tennessee Code Annotated section 50-6-204(a)(1)(A), Mr. Chitwood must provide him
    with past and continuing reasonable and necessary medical treatment related to the
    injury. The Court appoints Dr. Weikert as the authorized treating physician. The Court
    further finds treatment with Centennial, Peakview Emergency Physicians, Radiology
    Alliance, Air Evac, Vanderbilt, Dr. Weikert and Publix appropriate because Mr.
    Chitwood failed to provide Mr. Bland medical care, requiring him to seek treatment on
    his own. See Young v. Young Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16
    (May 25, 20 16). The Court holds Mr. Chitwood responsible for immediate payment of
    these bills.
    Next, Mr. Bland additionally seeks temporary total and partial disability benefits.
    See Tenn. Code Ann. § 50-6-207(1)-(2). In Jones v. Crencor, 2015 TN Wrk. Comp.
    App. Bd. LEXIS 48, at *7 (Dec. 11, 2015), the Appeals Board held: "An injured worker
    is eligible for temporary disability benefits if: ( 1) the worker became disabled from
    working due to a compensable injury; (2) there is a causal connection between the injury
    and the inability to work; and (3) the worker established the duration of the period of
    disability." While temporary total disability refers to the employee's condition while
    completely unable to work because of the injury until the worker recovers as far as the
    nature of the injury permits, "[t]emporary partial disability refers to the time, if any,
    during which the injured employee is able to resume some gainful employment but has
    not reached maximum recovery." Frye v. Vincent Printing Co., et a!., 2016 TN Wrk.
    Comp. App. Bd. LEXIS 34, at *15-16 (Aug. 2, 2016).
    Here, the Court holds that Mr. Bland became disabled at work due to a
    compensable injury and a causal connection exists between the injury and his inability to
    work. With regard to the remaining factor for consideration, Mr. Bland introduced
    medical records into evidence excusing him from work from June 21 through September
    21. After September 21, due to the termination, Mr. Chitwood made no effort to
    accommodate Mr. Bland's restrictions, forcing him to seek employment elsewhere. The
    4
    Court finds Mr. Bland was unable to return to work within his restrictions from
    September 21 through December 31. Therefore, Mr. Bland has come forward with
    sufficient evidence from which this Court concludes that he is likely to prevail at a
    hearing on the merits on the issue of temporary disability benefits for the above
    timeframe. Mr. Bland's compensation rate is $400 per week or $57.14 per day. He was
    restricted from work for 193 days, which totals $11,028.02 immediately due and owing.
    Uninsured Employer
    Finally, although this Court holds Mr. Chitwood must provide Mr. Bland with past
    and ongoing medical and disability benefits, it is unclear whether payment will occur
    because Mr. Chitwood did not have workers' compensation insurance at the time of the
    accident nor has he made any effort to participate in this case. The Bureau has discretion
    to pay limited temporary disability and medical benefits from the UEF to an employee
    who: 1) worked for an employer who failed to secure payment of compensation; 2)
    suffered an injury primarily arising in the course and scope of employment on or after
    July 1, 2015; 3) was a Tennessee resident on the date of the injury; and, 4) "provided
    notice to the bureau of the injury and of the failure of the employer to secure the payment
    of compensation within a reasonable period of time, but in no event more than sixty (60)
    days after the date of the injury[]" Tenn. Code Ann. § 50-6-801(d)(1)-(4) (Emphasis
    added).
    Based upon the evidence, the Court finds Mr. Bland was a Tennessee resident on
    June 20 and was an employee of Mr. Chitwood for purposes of the Tennessee Workers'
    Compensation Law.        As of June 20, Mr. Chitwood failed to secure workers'
    compensation insurance. Mr. Bland suffered his injury after July 1, 2015, and the Court
    holds he is likely to prevail at hearing on the merits that he suffered an injury primarily
    within the course and scope of employment. At that time, Mr. Chitwood failed to provide
    workers' compensation insurance and likewise paid no medical or temporary disability
    benefits for Mr. Bland's claim.
    However, the Court finds Mr. Bland provided notice to the Bureau of the injury
    and of Mr. Chitwood's failure to secure the payment of compensation seventy-two days
    after the date of injury. While the Court is mindful of the physical and financial
    hardships Mr. Bland suffered, the plain language of the statute requires notice "in no
    event" more than sixty days after the date of injury. Therefore, the Court concludes as a
    matter of law that he is not eligible for application for payment by the Bureau. This
    ruling does not prevent Mr. Bland from coming forward with additional evidence of
    contacts or notice to the Bureau in a subsequent hearing.
    5
    IT IS, THEREFORE, ORDERED as follows:
    1. Mr. Chitwood shall pay for past medical care in the sums outlined within this
    Order. Dr. Weikert shall continue to serve as the authorized treating physician.
    Mr. Bland or the medical providers shall furnish any other reasonable, necessary
    and related bills to Mr. Chitwood for prompt payment.
    2. Mr. Bland is entitled to past temporary disability payments in the amount of
    $11,028.02 payable immediately as a lump sum.
    3. Mr. Bland is not eligible at this time to receive medical and temporary disability
    benefits from the UEF.
    4. This matter is set for a Scheduling Hearing on September 11 , 2017, at 9:45 a.m.
    Central Time. The parties must call 615-532-9552 or 866-943-0025 toll-free to
    participate in the hearing. Failure to appear by telephone may result in a
    determination of the issues without your participation.
    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).
    Mr. Chitwood must submit confirmation of compliance with this Order to the
    Bureau by email to WCCompliance.Program@tn.gov no later than the seventh
    business day after entry of this Order. Failure to submit the necessary
    confirmation within the period of compliance may result in a penalty assessment
    for non-compliance. For questions regarding compliance, please contact the
    Workers'        Compensation         Penalty      Unit      by       email       at
    WCCompliance.Program@tn.gov.
    ENTERED this the 24th day of July, 2017.
    Court of Workers' Compensation
    6
    APPENDIX
    Exhibits:
    1.    Affidavit of Cody Bland
    2.    Employee Medical records
    3.    Expedited Request for Investigation Report
    4.    Memo confirming Mr. Bland's termination
    Technical Record:
    1. Petition for Benefit Determination, September 2, 20 16
    2. Request for Investigation
    3. Dispute Certification Notice
    4. Request for Expedited Hearing
    5. Notice of Expedited Hearing and proof of delivery
    CERTIFICATE OF SERVICE
    I certify that ·a true and correct copy of this Order was sent to the following
    recipients by the following methods of service on this the 24th day of July, 2017.
    Name                      Certified    Via        Via    Service sent to:
    Mail        Fax       Email
    Brian Dunigan,                                    X      brian@goncelaw .com
    Employee's attorney
    Mike Chitwood,                X                          Mike Chitwood, Chitwood Floors,
    Employer                                                 c/o Accurate Tax Service
    2606 Eugenia Ave., Suite C
    Nashville TN 37211
    , Clerk of Court
    rkers' Compensation Claims
    lerk@tn.gov
    7
    

Document Info

Docket Number: 2016-06-1686

Citation Numbers: 2017 TN WC 137

Judges: Kenneth M. Switzer

Filed Date: 7/24/2017

Precedential Status: Precedential

Modified Date: 1/10/2021