Avila, Eduardo v TLG Motors, LLC , 2017 TN WC 151 ( 2017 )

TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KINGSPORT
Eduardo Avila, ) Docket No. 2017-02-0141
Employee, )
)
v. ) State File Number 18030-2017
)
TLG Motors, LLC, )
Uninsured Employer. ) Judge Brian K. Addington
EXPEDITED HEARING ORDER
This matter came before the undersigned Workers' Compensation Judge on
August 2, 2017, upon Mr. Avila's Request for Expedited Hearing. The determinative
legal issue is whether TLG Motors meets the statutory definition of an employer. For the
reasons set forth below, the Court finds Mr. Avila is not likely to prove at a hearing on
the merits that he worked for an "employer" as defined by the Workers' Compensation
Law. Therefore, the Court denies his request for workers' compensation benefits at this
time.
History of Claim
Mr. Avila knew the owner of TLG Motors, Mr. Ted Georgio, through Mr.
Georgio's mother, a restaurant owner. Mr. Avila normally worked for Ms. Georgio.
When she could not provide him with work, Mr. Avila occasionally cleaned cars at TLG
Motors.
Mr. Avila injured his right middle finger while cleaning cars at TLG Motors on
August 16, 2014. He went to the hospital and later underwent surgery. Ms. Georgio paid
for his surgery, but the initial treatment remains unpaid. Mr. Avila was unsatisfied with
the results of the surgery and requested additional treatment, which Ms. Georgio denied.
Both Mr. A vii a and Mr. Georgio testified that TLG Motors did not have five
employees at the time of the injury. Based on Mr. Avila's testimony, TLG Motors
employed three persons. TLG did not have workers' compensation insurance in place on
the date of injury. Bureau Compliance Specialist Rene Gallardo conducted an
investigation and concluded that TLG Motors employed three employees.
During the hearing, Mr. Avila requested temporary total disability benefits but
could not provide the exact dates for which the benefits were owed. He also requested
payment of past medical benefits and a new physician to address his current complaints.
Mr. Georgio appeared without an attorney on behalf of TLG Motors. After he
considered the option of proceeding with the hearing, or requesting a thirty-day recess to
obtain representation, he elected to proceed. Because TLG Motors is a limited liability
company, the Court did not allow Mr. Georgio to enter or object to exhibits, cross-
examine witnesses, or make any argument on behalf of TLG Motors. The Court only
allowed his testimony as a fact witness. Thus, TLG Motors presented no argument.
Findings of Facts and Conclusions of Law
In this workers' compensation case, Mr. Avila has the burden to prove all essential
elements of his claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App.
Bd. LEXIS 24, at *6 (Aug. 18, 2015). However, Mr. Avila need not prove every element
of his claim by a preponderance of the evidence to obtain relief at an Expedited Hearing.
Instead, he must come forward with sufficient evidence from which the trial court can
determine that 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).
The Workers' Compensation Law requires all "employers" to provide workers'
compensation coverage for their "employees." See Tenn. Code Ann. § 50-6-405(a)
(20 16). According to Tennessee Code Annotated 50-6-1 02( 12)(A) (20 16), "an employee
includes every person ... in the service of an employer[.]" An employer is defined as
"any individual ... using the services of not less than five (5) persons for pay[.]" Tenn.
Code Ann.§ 50-6-102(13) (2016).
To succeed here, Mr. Avila must prove he was employed by an employer at the
time of incident. Mr. Avila failed to prove that TLG Motors is an employer under the
Workers' Compensation Law. The Court finds that TLG Motors had three employees,
not the required minimum of five to mandate workers' compensation insurance coverage.
Thus, it does not meet the statutory definition of employer.
For the above reasons, the Court finds Mr. Avila has not presented sufficient
evidence that he is likely succeed in proving TLG Motors was a statutory employer.
Therefore, the Court holds he is not entitled to the requested workers' compensation
benefits at this time.
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IT IS, THEREFORE, ORDERED as follows:
1. Mr. Avila's claim against TLG Motors for temporary disability and medical
benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on September 26, 2017, at 10:00 a.m.
Eastern Time. The parties must call 855-543-5044 to participate in the Hearing.
3. Please Note: You must call in on the scheduled date and time to participate.
Failure to call may result in a determination of the issues without your further
pat1icipation. All conferences are Eastern Time.
ENTERED this the 3rd day of August, 2017.
Is/Brian K. Addington
Judge Brian K. Addington
Court of Workers' Compensation Claims
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Appendix
Exhibits:
1. Jesus Barragano' s Affidavit
2. Baltazar Ramierez's Affidavit
3. Susana Mancera's Affidavit
4. Expedited Request for Investigative Report of Rene Gallardo
5. Collective Exhibit-Medical Bills
Technical rec rd:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
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 August 3, 2017.
Name Certified First Via Service Sent To:
Mail Class Email
Mail
Eduardo Avila X X 1200 Maryland Ave.
Bristol, TN 37620
TLG Motors, LLC X X 2121 Volunteer Parkway
Bristol, TN 37620
/s/ Penny Shrum
Penny Shrum, Clerk of the Court
Court of Workers' Compensation Claims
WC.CourtCierk@tn.gov
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