Carpenter. David v. Southern Transit, P&M Logistics, and , 2017 TN WC 228 ( 2017 )


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  • FILED
    December 14, 2017
    TN COURT OF
    WORKERS’ COMPENSATION
    CLAIMS
    Time 3:40 PM
    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
    AT MEMPHIS
    David Carpenter, ) Docket No.: 2017-08-0232
    Employee, ) Docket No.: 2017-08-0233
    Vv. )
    Southern Transit, P&M Logistics, and ) State File No.: 4008-2017
    Carter O’Neal Logistics, ) State File No.: 14688-2017
    Employer, )
    and )
    Protective Insurance Company and ) Judge Deana Seymour
    Praetorian Insurance Company, )
    Insurance Carrier. )
    EXPEDITED HEARING ORDER
    This case came before the undersigned Workers’ Compensation Judge on
    November 15, 2017, on Mr. Carpenter’s Request for Expedited Hearing. The central
    dispute is whether Southern Transit or P&M Logistics employed Mr. Carpenter on the
    date of injury. The purported employers also challenged whether Mr. Carpenter
    established entitlement to medical and temporary disability benefits. For the following
    reasons, the Court holds Mr. Carpenter is likely to prevail at a hearing on the merits in
    establishing that P&M Logistics owes him medical and temporary disability benefits. '
    History of Claim
    Mr. Carpenter claimed he injured his back on December 8, 2016, when he fell to
    the ground while stepping out of his work truck. In the weeks leading up to December 8,
    he stated he could not adjust the truck’s seat, so every bump jarred his back when he
    drove. He blamed the faulty seat for causing his back injury.
    1 The Court entered an agreed order adding Carter O’Neal Logistics as a purported employee. The parties agreed
    that Carter’s joinder related back to the Petition for Benefit Determination filed against P&M. P&M’s counsel
    advised the Court that Carter and P&M were essentially the same entity, thus the Court will reference both
    companies as “P&M” in this order.
    Mr. Carpenter allegedly reported his injury to his direct supervisor, Mike Mathias,
    but never received a panel of physicians or medical care.” He consulted his primary care
    physician, Dr. Acree, who took Mr. Carpenter off work from December 13 to December
    15 and ordered an MRI that revealed severe L4-5 stenosis. Thereafter, Mr. Carpenter
    contacted Southern Transit’s workers’ compensation insurance carrier about his injury,
    and it provided him a panel of physicians from which he selected Dr. Sam Schroerlucke.
    Mr. Carpenter saw Dr. Schroerlucke on January 10, 2017, and complained of back
    pain as well as pain and numbness in both legs. Mr. Carpenter said he injured his back
    while getting into a truck on December 8. After reviewing x-rays and Mr. Carpenter’s
    prior MRI, Dr. Schroerlucke did not see an acute injury. He took Mr. Carpenter off work
    and ordered an epidural steroid injection.*> However, Southern Transit’s insurer refused
    to authorize the injection despite Dr. Schroerlucke’s conclusion that Mr. Carpenter’s
    symptoms were more likely than not related to his work injury. At his deposition, Dr.
    Schroerlucke testified that Mr. Carpenter’s condition was “fifty-one percent or more
    related to his employment” despite the fact Mr. Carpenter allegedly suggested to another
    provider that he injured his back while riding a bike prior to December 8.
    Mr. Carpenter testified he drove for Southern Transit for approximately two years
    and earned $750.00 per week to drive from Memphis, Tennessee, to Greenville,
    Mississippi.’ He testified that Mr. Mathias hired and supervised him and that Mr. Mathias
    reported to Mr. Penchion.
    Both Southern Transit and P&M denied Mr. Carpenter was their employee at the
    time of his injury. Ms. Harper denied hiring Mr. Carpenter. She testified that she never
    met Mr. Carpenter personally and only spoke to him twice by phone.
    She stated that Mr. Mathias, who was not her employee, hired and supervised Mr.
    Carpenter. Ms. Harper explained that Mr. Penchion loaned his dedicated FedEx Ground
    route from Memphis to Greenville to Southern Transit. Mr. Penchion managed the
    operations of the route — he kept drivers in the truck, took care of any issues with the
    truck, and paid for maintenance and fuel costs. Ms. Harper indicated she did not direct
    whom Mr. Penchion chose to drive the route, stating it had to be run because it was a
    “dedicated route.” She admitted that Southern Transit paid Mr. Carpenter with checks
    every time he drove its truck. However, she testified that Mr. Penchion told her that
    SouthernTransit’s truck was broken-down and Mr. Carpenter was sick on the date of
    injury.
    ?-Mr. Mathias ultimately reported the claimed injury to Boris Penchion, P&M’s owner, and Mr. Penchion
    told Southern Transit’s owner, Macilyn Harper, about the workers’ compensation claim.
    > Dr. Schoerlucke kept Mr. Carpenter off work from January 10, 2017, to March 9, 2017.
    “Mr. Carpenter’s affidavit, however, named P&M as his employer.
    2
    Mr. Penchion admitted that Mr. Mathias worked for P&M as a driver manager but
    denied recruiting or hiring Mr. Carpenter for P&M.° Mr. Penchion testified he managed
    Southern Transit’s operations but delegated the day to day business to Mr. Mathias. He
    stated that Ms. Harper could have stepped in if she disagreed with any of his decisions.
    Mr. Penchion further testified that the FedEx Ground system showed Mr. Carpenter
    assigned to Southern Transit. He asserted that, while FedEx Ground contracted with
    P&M to run the route, it knew Southern Transit actually ran the route. Mr. Penchion
    claimed he helped Ms. Harper earn steady income by lending her the dedicated
    Greenville route. He paid for the truck’s fuel and maintenance and allowed her to keep all
    profits. Mr. Penchion also stated that Mr. Carpenter drove P&M’s truck during the
    weeks leading up to the date of injury because Southern Transit’s truck was inoperable.
    He testified that P&M paid Mr. Carpenter for the time he drove its truck because FedEx
    Ground paid P&M. However, Mr. Penchion testified that all profits from the run went to
    Ms. Harper, and P&M did not benefit from the run. He further testified that he needed a
    special driver for the Greenville route because that route did not bring in enough money
    for most drivers.
    Findings of Fact and Conclusions of Law
    Standard Applied
    Mr. Carpenter bears the burden of proof on the essential elements of his claim.
    Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6
    (Aug. 18, 2015). He does not have to prove every element of his claim by a
    preponderance of the evidence but must present sufficient evidence for the Court to
    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 *9 (Mar. 27, 2015).
    Employment Relationship
    The Court begins its analysis by noting the term “employee” means “every person
    ... in the service of an employer .. . under any contract of hire . . . written or implied.”
    Tenn. Code Ann. § 50-6-102(12)(A) (2017). The parties did not introduce any written
    contract of employment into evidence. Thus, the Court considers whether there was an
    implied contract of employment.
    Workers’ Compensation Law requires “that there be an express or implied
    agreement for the alleged employer to remunerate the alleged employee for his services.”
    See Black v. Dance, 
    643 S.W.2d 654
    , 657 (Tenn. 1982). Here, Mr. Carpenter drove
    P&M’s truck, including on the date of injury, to run the dedicated truck route FedEx
    ° P&M also argued in its Pre-Hearing Statement that it would not be liable for benefits under the “loaned
    employee doctrine.”
    Ground contracted with P&M to run. Under the arrangement in place, FedEx Ground
    paid P&M for the run and P&M then paid all maintenance and expenses on the truck,
    including compensating Mr. Carpenter for driving the route. Mr. Mathias, driver-
    manager for P&M, hired Mr. Carpenter and supervised his work. Mr. Carpenter reported
    his work injury to Mr. Mathias.
    On the other hand, Ms. Harper, testified that she did not hire Mr. Carpenter and
    had never met him. Mr. Carpenter reported directly to Mr. Mathias who worked for
    P&M. According to Ms. Harper, P&M hired Mr. Carpenter, took care of her truck, paid
    her fuel costs, and managed her operations. She confirmed that the Memphis-Greenville
    route was a dedicated route that had to be run.
    In view of the above evidence, the Court finds that P&M employed Mr. Carpenter
    at the time of his injury. P&M owned the truck Mr. Carpenter was driving to run P&M’s
    dedicated FedEx Ground route. P&M hired Mr. Carpenter through its driver manager,
    directed his work, and paid him to run its route.
    Even if the Court had found Southern Transit to be Mr. Carpenter’s employer, it
    rejects P&M’s alternative argument that it is not responsible as a “special employer” per
    the “loaned employee doctrine.” This doctrine provides that when a “general employer”
    lends an employee to a “special employer,” the special employer is liable for workers’
    compensation benefits if “(a) the employee has a contract of hire, express or implied,
    with the special employer; (b) the work being done is essentially that of the special
    employer; and (c) the special employer has the right to control the details of the work.”
    Winchester v. Seay, 
    409 S.W.2d 378
    , 381 (Tenn. 1966). Based on the same facts used to
    find that P&M employed Mr. Carpenter at the time of his injury, it would be liable for
    benefits as a “special employer” under the loaned employee doctrine.
    Causation
    Having found that an employment relationship existed between Mr. Carpenter and
    P&M, the Court turns to the issue of causation. To be compensable, Mr. Carpenter must
    show his alleged injury arose primarily out of and in the course and scope of his
    employment. Tenn. Code Ann. § 50-6-102(14)(B) (2017). “An injury ‘arises primarily
    out of and in the course and scope of employment’ only if it has been shown by a
    preponderance of the evidence that the employment contributed more than fifty percent
    (50%) in causing the injury, considering all causes.” Jd. “The opinion of the treating
    physician, selected by the employee from the employer’s designated panel of physicians .
    . . Shall be presumed correct on the issue of causation but this presumption shall be
    rebuttable by a preponderance of the evidence.” Tenn. Code Ann. § 50-6-102(14)(E).
    Southern Transit provided Mr. Carpenter with a panel from which he chose Dr.
    Schroerlucke for treatment. At his deposition, Dr. Schroerlucke testified that Mr.
    4
    Carpenter’s condition was “fifty-one percent or more related to his employment” despite
    information suggesting Mr. Carpenter injured his back while riding a bike. Thus, Mr.
    Carpenter has shown he is likely to prevail at a hearing on the merits on the issue of
    causation and is entitled to continued treatment with Dr. Schoerlucke.
    Temporary Disability Benefits
    To establish entitlement to temporary disability benefits, Mr. Carpenter must show
    (1) he was partially or totally disabled from working due to a compensable injury; (2) a
    causal connection between the injury and his inability to work; and (3) the duration of
    that period of disability. Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App.
    Bd. LEXIS 48, at *7 (Dec. 11, 2015).
    Mr. Carpenter showed that Dr. Acree took him off work from December 13 to
    December 15 and that Dr. Schroerlucke took him off work because of his compensable
    injury from January 10 to March 9, amounting to eight weeks and five days. P&M
    provided only two weeks of questionable wages from which the Court could not derive a
    reasonable average weekly wage. Therefore, the Court accepts the testimony of Mr.
    Carpenter, and along with its review of the wage information submitted, finds that Mr.
    Carpenter has an average weekly wage of $750.00 and a weekly compensation rate of
    $500.00. Therefore, he is entitled to temporary total disability benefits totaling $4,357.14.
    IT IS, THEREFORE, ORDERED as follows:
    1. P&M and/or its workers’ compensation insurance carrier shall provide ongoing
    medical treatment pursuant to Tennessee Code Annotated Section 50-6-204
    (2017).
    2. P&M and/or its workers’ compensation insurance carrier shall pay temporary total
    disability benefits for the period of December 13 to December 15, 2016, and from
    January 10to March 9, 2017. His compensation rate is $500.00, based on an
    average weekly rate of $750.00, which entitles him to benefits totaling $4,357.14.
    3. This matter is set for a Scheduling Hearing on January 29, 2018, at 10:00 a.m.
    Central Standard Time. The parties must call (toll-free) 866-943-0014 to
    participate in the Hearing. Failure to call may result in a determination of the
    issues without the parties’ participation.
    4. 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)
    (2016). 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. For
    questions regarding compliance, please contact the Workers’ Compensation
    Compliance Unit via email at WCCompliance.Program@tn.gov or by calling
    (615) 253-1471 or (615) 532-1309.
    ENTERED this the 44, day of December, 2017.
    SX
    ~—
    ee
    JUDGE DEANA SEYMOUR
    Court of Workers’ Compensation Claims
    APPENDIX
    Exhibits:
    1. Petitions for Benefit Determination (Collective)
    Dispute Certification Notices (Collective)
    Requests for Expedited Hearing and attached affidavits (Collective)
    Transcript of the Deposition of Dr. Sam Schroerlucke
    Mr. Carpenter’s wage information from Southern Transit
    Methodist Healthcare medical record for date of service November 7, 2016
    Affidavit of David Carpenter
    Mr. Carpenter’s written statement dated January 16, 2017
    Medical records from Methodist Healthcare, Healthcare Clinics, Methodist
    Medical Groups, and Tabor Orthopedics
    10. Monthly Maintenance Record dated January 18, 2017
    ea] ah YP
    Technical record:
    1. Petitions for Benefit Determination (Collective)
    Dispute Certification Notices (Collective)
    Southern Transit’s Motion for Summary Judgment
    Statement of Undisputed Facts
    Southern Transit’s Memorandum of Law in Support of its Motion for Summary
    Judgment
    Requests for Expedited Hearing and attached affidavits (Collective)
    Mr. Carpenter’s Response to Southern Transit’s Motion for Summary Judgment
    Mr. Carpenter’s Response to Southern Transit’s Statement of Undisputed Facts
    9. Notice of Hearing on Southern Transit’s Motion for Summary Judgment
    10. Mr. Carpenter’s Pre-Hearing Brief
    11.P&M Logistics and Praetorian Insurance Co.’s Witness & Exhibit List
    12.P&M Logistics and Praetorian Insurance Co.’s Response to Southern Transit’s
    Motion for Summary Judgment
    13.P&M Logistics and Praetorian Insurance Co.’s Response to Southern Transit’s
    Statement of Undisputed Facts
    14.P&M Logistics and Praetorian Insurance Co.’s Pre-Hearing Statement
    15.P&M Logistics and Praetorian Insurance Co.’s Motion in Limine to Exclude Any
    and All Witnesses and Exhibits Presented by Southern Transit
    16. Southern Transit and Protective Insurance Co.’s Pre-Hearing Brief
    17. Motion to Strike
    18. Order on Motion for Consolidation
    19. Southern Transit and Protective Insurance Co.’s Witness & Exhibit List
    20. Second Notice of Hearing on Southern Transit’s Motion for Summary Judgment
    21. Agreed Order Adding Carter O’Neal Logistics as an Employer
    22. Southern Transit and Protective Insurance Co.’s Supplemental Pre-Hearing Brief
    23.Second Motion to Strike
    eo}
    oN
    24. Notice of Filing Mr. Carpenter’s wage information from Southern Transit
    25. Notice of Filing Transcript of October 18, 2017 proceedings
    26. Notice of Filing Medical Records
    27.P&M Logistics and Praetorian Insurance Co.’s Notice of Filing Wage Statement
    28. Notice of Filing Affidavit of Boris Penchion
    29.Mr. Carpenter’s Motion for Consolidation
    30. Mr. Carpenter’s Motion to Add Party Defendant
    31. Notice of Filing Deposition of Dr. Sam Schroerlucke
    I hereby certify that a true and correct copy of the foregoing was sent to the
    following recipients by the following methods of service on this the 14thday of December,
    CERTIFICATE OF SERVICE
    2017.
    Name Certified | Via | Via Email Address
    Mail Fax | Email
    Monica Rejaei, X mrejaci@nstlaw.com
    Employee’s Attorney
    Allen Brown, Xx allen@jallenbrownpllc.com
    Attorney for Southern
    Transit
    Michael Jones, X mjones@wimberlylawson.com
    Attorney for P&M
    Logistics and Carter
    O’Neil Logistics
    Le ag Alter
    Penny P
    Court of
    atyéjson-Shrum, Clerk
    rkers’ Compensation Claims
    WC.CourtClerk@tn.gov
    

Document Info

Docket Number: 2017-08-0232, 2017-08-0233

Citation Numbers: 2017 TN WC 228

Judges: Deana Seymour

Filed Date: 12/14/2017

Precedential Status: Precedential

Modified Date: 1/10/2021