Hensley, Jeffrey Chad Hensley (Deceased) v. Professional Personnel Services , 2017 TN WC 21 ( 2017 )

FILED
February 9. 2017
TN COURT Of
W ORKI.R.S ' 0 0 1IPI.NS.IDO N
C LAIMS
Time·7: IS A~d
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KINGSPORT
Jeffrey Chad Hensley (Deceased), ) Docket No.: 2015-02-0387
Employee, )
v. ) State File No.: 82497-2015
Professional Personnel Services, )
Employer, ) Judge Brian K. Addington
And )
Zurich North American Ins. Co., )
Carrier. )
COMPENSATION HEARING ORDER
This matter came before the undersigned Workers' Compensation Judge on
February 2, 2017, for a Compensation Hearing pursuant to Tennessee Code Annotated
section 50-6-239 (2016). This is an action for death benefits brought by Mr. Hensley's
surviving spouse, Mrs. Tabitha Hensley, for herself and on behalf of his orphan, minor
child, Kaydence Hensley.
The central legal issue is whether Tabitha Hensley and/or Kaydence Hensley are
surviving dependents of Mr. Hensley under Tennessee Code Annotated section 50-6-210
(2016), and are, therefore, entitled to death benefits. For the reasons set forth below, this
Court finds that, while Mrs. Hensley was the surviving spouse of the deceased, she was
voluntarily living apart from him at the time of his death. Consequently, Mrs. Hensley is
not entitled to death benefits. Further, the Court finds that Kaydence Hensley is Mr.
Hensley's wholly dependent surviving minor child. As such, she is entitled to death
benefits under the Tennessee Workers' Compensation Law.
History of Claim
Jeffrey Chad Hensley was employed by Professional Personnel Services on
October 7, 2015, when he suffered a mortal injury arising out of and in the course and
scope of his employment. 1
At the time of his death, Mr. Hensley was the father and sole parent of his only
child, Kaydence Hensley, born January 28, 2008. Mr. Hensley gave up custody of
Kaydence following the death of her mother. Mr. Hensley's mother and stepfather
obtained custody of Kaydence by virtue or an agreed Custody Order entered in the
Circuit Court for Hawkins County on May 7. 2015. 2 Although Mr. Hensley did not have
custody of his daughter at the time of his death, he provided monetary support to her
when employed.
After the death of his first wife, Mr. Hensley married Tabitha Hensley. Prior to
his death, the couple lived with Mr. Hensley's father and stepmother in their home.
They had a rocky relationship, and witnesses testified that Tabitha did not interact with
Kaydence during visits.
The couple voluntarily quit living together on July 26, 2014, and soon after, Mrs.
Hensley began cohabitating with another man. All contact between the couple ceased,
although they remained married. Mr. Hensley and a friend went to the apartment
complex where Mrs. Hensley lived in the hopes of meeting with her to discuss divorce,
but they were unable to locate her since he did not know the precise apartment where she
resided.
In the fall of 2014, Mr. Hensley began a relationship with another woman. They
eventually moved into an apartment together, which they shared with a friend. Mr.
Hensley paid no support to Mrs. Hensley and did not have contact with her other than to
di sco s divorce. At the time of Mr. Hen ley ' s dealh the couple had been separated for
over a year and were voluntarily and publicly 3 living aparl.
Both Mrs. Hensley and the Custodians of Kaydence Hensley filed Petitions for
Benefit Determination. The mediator was not able to resolve the case and issued Dispute
Certification Notices. At first, Mrs. Hensley pursued her claim for benefits. Her counsel
appeared with Kaydence's counsel for the scheduling hearing in this matter. However,
Mrs. Hensley's counsel petitioned the Court for an Order allowing him to withdraw,
which the Court granted. Thereafter, Mrs. Hensley made no filings in accordance with
the previously-issued Scheduling Order.
Prior to the Compensation Hearing, the Court's staff attorney unsuccessfully
1
The parties stipulated to this fact and that his average weekly wage was $402.11.
2
A copy of the Order is attached.
3
Mr. Hensley did not hide his relationship with the other woman. Mrs. Hensley indicated her new relationship
repeatedly on social media.
2
attempted to contact Mrs. Hensley by phone. She did not appear for the Compensation
Hearing, nor did she contact the Court to request a continuance. The Court waited
approximately thirty minutes before starting the Compensation Hearing.
During the Compensation Hearing, counsel for the Guardians of Kaydence
Hensley asserted she was a dependent child under sixteen years of age and was, therefore,
entitled to workers' compensation death benefits.
Professional Personnel Services asserted in its pre-trial brief and during the
Compensation Hearing that Kaydence Hensley was the sole dependent of Mr. Hensley. It
did not contest causation of Kaydence Hensley's dependency, but requested the Court to
order periodic payment of death benefits under Tennessee Code Annotated section 50-6-
210 (2016).
Findings of Fact and Conclusions of Law
The employee in a workers' compensation claim has the burden of proof on all
essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk.
Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). "[A]t a compensation hearing where
the injured employee has arrived at a trial on the merits, the employee must establish by a
preponderance of the evidence that he or she is, in fact, entitled to the requested benefits."
Willis v. All Staff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see
also Tenn. Code Ann. § 50-6-239(c)(6) (2016) ("[T]he employee shall bear the burden of
proving each and every element of the claim by a preponderance of the evidence.").
Whether Tabitha Hensley is entitled to death benefits
Tennessee Code Annotated section 50-6-210 (2016) governs death benefits for
surviving dependents. In accordance with that statute, a surviving spouse is conclusively
presumed to be wholly dependent "unless it is shown that the surviving spouse was
voluntarily living apart from the surviving spouse's spouse at the time of the injury." !d.
at§ 210(a)(l). The Court finds the evidence presented in this case established that Mrs.
Hensley was voluntarily living apart from the deceased at the time of death. Evidence
presented at the Compensation Hearing showed that she publically announced the
relationship she had with another man. Mrs. Hensley failed to present any evidence to
the contrary.
The Court also finds that Mrs. Hensley was not an actual or partial dependent of
Mr. Hensley, according to Tennessee Code Annotated sections 50-6-210(c) and (d)
(2016). Mr. Hensley did not provide any support from his wages to Mrs. Hensley. They
had no contact whatsoever other than to discuss divorce. Mrs. Hensley failed to prove
otherwise.
3
Finding that Mrs. Tabitha Hensley was not wholly, actually, or partially dependent
on the deceased, the Court holds that she is not entitled to death benefits.
Whether Kaydence Hensley is entitled to death benefits
Children under sixteen years of age are conclusively presumed to be wholly
dependent under Tennessee Code Annotated section 50-6-210(a)(2) (2016). The
stipulated evidence showed that Kaydence Hensley was nine years old at the time of the
Compensation Hearing. Moreover, testimony presented established that Mr. Hensley
provided financial support to his daughter as long as he earned wages. This is true,
despite the fact that his mother and stepfather retained actual custody. Although
testimony showed she receives public assistance from the United States Government, as
both her parents are deceased, this benefit is not income and should not affect the status
of her claim. See Tenn. Code Ann. §50-6-210(e)(l3) (2016).
The Court finds that Kaydence Hensley was wholly dependent on Mr. Hensley
and holds she is entitled to death benefits.
Calculation and payment of death benefits
A single dependent orphan, as in this case, is entitled to fifty percent of the
average weekly wage of the deceased under Tennessee Code Annotated section 50-6-
210(e)(5) (2016). Per stipulation, the Court finds Mr. Hensley's average weekly wage
was $402.11. The Court holds that the appropriate weekly payment to Kaydence Hensley
is $201.06.
As Mr. Hensley passed on October 7, 2015, the Court finds that death benefits
became payable on October 8, 2015. The Court holds that Professional Personnel
Services shall pay to Kaydence Hensley, via her Court-appointed Custodians, a lump sum
representing incurred weekly death benefits from October 8, 2015, through February 9,
2017. The accrued death benefits equate to seventy weeks of benefits, or $14,074.20. Of
this amount, twenty percent, or $2,814.84, shall be paid to Attorney Mark Stapleton as
attorney fees for his representation in this matter.
Further, Profession Personnel Services shall continue to pay death benefits in the
weekly amount of $201.06 until she reaches age eighteen or age twenty-two if she attends
a recognized educational institution. See Tenn. Code Ann. § 50-6-210(e)(l1) (2016).
Attorney Mark Stapleton shall be paid twenty percent of each weekly installment. Thus,
each weekly payment shall be disbursed as follows: $160.94 to the Court-appointed
Custodians ofKaydence Hensley, and $40.12 to Attorney Mark Stapleton.
The Court reminds the Custodians of their fiduciary duty with the death benefits
paid to Kaydence Hensley.
4
IT IS, THEREFORE, ORDERED as follows :
1. Tabitha Hensley's Petition for Death Benefits is denied.
2. Kaydence Hensley's Petition for Death Benefits is granted. Professional
Personnel Services shall pay accrued death benefits in a lump sum of
$14,074.20 to the Court-appointed Custodians of Kaydence Hensley, minus a
20% attorney fee of$2,814.84 payable to Attorney Mark Stapleton.
3. Professional Personnel Services shall continue to make weekly death benefit
payments of $160.94 until she reaches age eighteen or twenty-two should she
attend a recognized educational institution to the Court-appointed Custodians of
Kaydence Hensley and $40.12 to Attorney Mark Stapleton.
4. Professional Personnel Services shall pay the $150.00 filing fee under
Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2016).
5. Professional Personnel Services shall file an SD-1 within ten days of entry of
this Judgment.
6. This is a final judgment.
ENTERED this the 9th day of February, 2017.
Is/ Brian K. Addine;ton
HON. BRIAN K. ADDINGTON
Workers' Compensation Judge
5
APPENDIX
T echnica I record:
• Petitions for Benefit Determination
• Dispute Certification Notices
• Initial Hearing Order
• Order on Motions
• Order Granting Motion to Withdraw as Counsel
• Kaydence Hensley's Pre-Hearing Statement
• Employer's Pre-Hearing Statement
The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in these
filings or any attachments to them as allegations unless established by the evidence.
Stipulated Findings of Facts of Custodiar1s ofKavdence Hensley and the Employer:
• Jeffrey Chad Hensley was employed by Professional Services on October 7, 2015.
• Jeffrey Chad Hensley lost his life during the course and scope of his employment
on October 7, 2015.
• At the time of the death of employee Hensley, he had a minor child Kaydence
Adaya Hensley, date of birth January 28, 2008. She was seven years old at the
time of death on October 7, 2015, and was nine years old at the time of trial.
• At the time of death of employee Hensley, custody of the minor child Kaydence
Hensley was given to Daphne Dawn Holt and Tracy Allen Holt by order of the
Circuit Court for Hawkins County filed May 7, 2010.
• The average weekly wage for this cause of action is $402.11.
• The workers' compensation rate is $268.07.
• Jeffrey Chad Hensley, employee/deceased, and Tabitha Michelle Harville were
married July 16, 2013. The parties voluntarily ceased living together July 26,
2014.
Exhibit:
1. Collective Exhibit containing employment documents, court and state records, and
social media posts.
6
CERTIFICATE OF SERVICE
I hereby certi fy that a true and correct copy of the Comp n ation Hearing Order
was sent to the £ I lowing recipients by the following methods of service on this the 91h
day ofFebruary, 2017.
Name Certified First Email Service sent to:
Mail Class
Mail
Mark Stapleton, Esq., X mark@stapletonlawoffice.com
Kaydence Hensley's
Attorney
Mary Beth Maddox, Esq., X mmaddox@fmsllp.com
E mp_loyer's Attorney
Tabitha Hensley, X X 1131 Harrell Street
Self-Represented Morristown, TN 3 7814
Claimant
~-----:-t-R-#
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-R-T_C_L_E_RK _ _ _ _
7
JN THE CffiCJJIT COURT FOR HAWKINS COUNTY
AT BOGERSVJI.I,E TENNESSEE
DAPHNE DAWN HOLT, and §
TRACY ALLEN HOLT, §
§
Petitioner, §
§
§
vs.
§
JEFFREY CHAD HENSLEY, §
§
Respondent, §
§
InRe: §
KAYDANCE ADAYA HENSLEY, §
DOB: 01-28-08 §
OTSTODY ORDER
This matter came by agreement, upon a Petition for Custody filed by Petitioners. After
review of the record and Petition;
WHEREFORE, IT IS ORDERED, ADJUDGED, AND DECREED:
1. That Petitj.oners DAPHNE DAWN HOLT and TRACY ALLEN' HOLT shall have
custody of the minor Ghild Kaydance Adaya Hensley, DOB 01-28-08.
THIS the_:}_dAy of (}1 ...t't 2010.
Judge
A o ey for Petitioners
BOPR# 018998 E ~scouNTY
STATE OF TEN NESS~ ``ssians} (~riminal)
119 South Depot Street I, HOL~Y )HC.JAYrtNEdS, Chlce;ekh~l ~'ertih• 'tt;cl~is a true
Rogersville, TN 37857 uuvemle ou ' 0 . ( :· .,
and correct copy od! ~e ongmt·na~ same~r