Langford, Jordan v. Cleveland Tent & Party Rentals

FILED
Juue 24, 2015
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COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
EMPLOYEE: Jordan Langford DOCKET #: 2015-01-0006
EMPLOYER: Scott Rymer, d/b/a Cleveland STATE FILE#: 461-2015
Tent and Party Rentals/
Party Time Rentals
CARRIER: Uninsured DATE OF INJURY: October 13,2014
INTERLOCUTORY ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by Jordan Langford, the employee, seeking an interlocutory
order for medical and temporary disability benefits. Attorneys Jim Bilbo and Brent Mcintosh
represent Mr. Langford. Attorney Clancy Covert represents the employer, Scott Rymer, d/b/a
Cleveland Tent and Party Rentals, also described in the record as Party Time Rentals (Rymer).
Mr. Langford asked the Court to decide this claim for interlocutory relief upon a review
of the record without an evidentiary hearing. Rymer did not object to Mr. Langford's request.
After first reviewing the record to determine the appropriateness of deciding this claim without
an evidentiary hearing, the Court determined that it is appropriate to decide this matter on the
record without an evidentiary hearing.
Considering the positions of the parties, the applicable law, and the record filed by the
parties, the Court finds that Mr. Langford is likely to succeed at a hearing on the merits in his
claim for medical and temporary disability benefits. Accordingly, the Court finds that Mr.
Langford is entitled to an Interlocutory Order awarding him medical and temporary disability
benefits.
ANALYSIS
Issues
1. Whether Mr. Langford established that he sustained an injury that arose primarily out
of and in the course and scope of employment; and
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2. Whether Mr. Langford is entitled to an award of temporary disability and medical
benefits.
Procedural Issue
The Court first considers the appropriateness of deciding Mr. Langford's request for
interlocutory relief without an evidentiary hearing. On June 1, 2015, Mr. Langford filed the
form requesting an expedited hearing, marking thereon the designated box indicating his request
that the Court issue a decision on the record without an evidentiary hearing. Contemporaneously
with his Request for Expedited Hearing, Mr. Langford submitted his own affidavit in support of
the requested relief. The affidavit contains factual assertions concerning Mr. Langford's
employment status with Rymer and the circumstances surrounding the injury on which he bases
his claim.
Mr. Langford certified on his Request for Expedited Hearing that he served a copy of the
request on Rymer's counsel of record. Tenn. Comp. R. & Regs., Rule 0800-02-.14(1)(b)
provides that, "[i]mmediately upon receiving the [Request for Expedited Hearing], but in no
event later than five (5) business days after the [Request for Expedited Hearing] is filed with the
clerk, the opposing party shall submit all information in its possession demonstrating that the
employee is not entitled to temporary disability or medical benefits." Rymer did not file
evidence or request additional time to do so within the period for response.
Upon the filing of a Request for Expedited Hearing, Tenn. Comp. R. & Regs., Rule 0800-
02-21-.14(1)(c) sets forth that "the judge shall have discretion to either set the matter for a
hearing or enter an interlocutory order based on a review of the file upon determining that no
additional information is needed to determine whether the employee is likely to prevail at a
hearing on the merits of the claim." Having reviewed the record submitted by the parties in this
claim, the Court finds that Mr. Langford's affidavit contains a sufficient factual record to render
a decision without an evidentiary hearing. Accordingly, pursuant to Tenn. Comp. R. & Regs.,
Rule 0800-02-21-.14(1)(c), the Court finds that a decision on the record is appropriate.
Evidence Submitted
The Court considered the following exhibit:
Exhibit A-Affidavit of Jordan Langford.
The Court designated the following as the technical record in this claim:
• Petition for Benefit Determination filed January 5, 2015;
• Dispute Certification Notice filed March 4, 2015; and
• Request for Expedited Hearing filed June 1, 2015.
The Court did not consider attachments to the above filings unless admitted into evidence.
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History of Claim
On May 26, 2015, the Court dismissed Mr. Langford's initial Request for Expedited
Hearing because he did not file an affidavit. On June 1, 2015, Mr. Langford refiled his request
with the requisite supporting affidavit.
According to his affidavit, Mr. Langford suffered multiple injuries, the most serious of
which were ankle and leg injuries requiring surgery, when, during a work-related trip to Lake
Charles, Louisiana on October 23, 2014, the driver of a Rymer-owned truck fell asleep and hit a
concrete barrier. Mr. Langford was a passenger in the truck.
Mr. Langford claims that Rymer is uninsured for workers' compensation risks and has
not paid any workers' compensation benefits. Rymer retained counsel in this claim, but did not
submit any evidence that disputes the allegation that it is uninsured. The Dispute Certification
Notice (DCN) issued in this claim indicates that Rymer raised several defenses to Mr.
Langford's claim. Rymer, however, did not submit evidence in support of the defenses listed in
theDCN.
Mr. Langford's Contentions
Mr. Langford claims his injury occurred in the course and scope of his employment by
Rymer. He denies that he was an independent contractor and claims that, at all times during his
employment, Rymer employed more than five (5) employees. Accordingly, Mr. Langford
contends that Rymer must provide him medical and temporary disability benefits pursuant to the
Tennessee Workers' Compensation Law.
Rymer's Contentions
According to the DCN, Rymer claims exemption from the Tennessee Workers'
Compensation Law, presumably because it does not employ five (5) employees. Also according
to the DCN, Rymer contends that Mr. Langford is not entitled to workers' compensation benefits
because (1) he was an independent contractor at the time he was injured, and (2) his injuries
occurred during a deviation from Rymer's business.
Findings of Fact and Conclusions of Law
Standards 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). Tennessee Code Annotated section 50-6-239(c)(6) provides that "[u]nless the
statute provides for a different standard of proof, at a hearing, the employee shall bear the burden
of proving each and every element of the claim by a preponderance of the evidence." A different
standard of proof governs the issuance of interlocutory orders at expedited hearings. See
McCord v. Advantage Human Resourcing, 2015 1N Wrk Comp App Bd LEXIS 6, Docket#
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2014-06-0063 State File No. 79894-2014, at *7, 8 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). A workers' compensation judge may enter an interlocutory order for medical or
temporary benefits upon a determination that the injured employee will likely prevail at a hearing
on the merits. Tenn. Code Ann. 50-6-239(d)(l) (2014); McCall v. Nat'/ Health Care Corp., 100
S.W.3d 209, 214 (Tenn. 2003).
Factual Findings
Upon consideration of the record, the Court makes the following factual findings:
• On October 13, 2014, Mr. Langford sustained injuries in Lake Charles, Louisiana,
while a passenger in a Rymer-owned truck;
• At the time of injury, Mr. Langford was not an independent contractor, but an
employee of Rymer; and
• Mr. Langford had not deviated from his employment by Rymer when injured on
October 13, 2014.
Application of Law to Facts
Rymer Is Not Exempt From Workers ' Compensation Coverage.
Mr. Langford's affidavit provides the only evidence in the record regarding the number
of employees employed by Rymer at the time of injury. Mr. Langford avers in his affidavit that
Rymer employed him to deliver and assemble tents and that "[t]here were eleven to twelve (11-
12) other employees working for Scott Rymer during my time of employment."
Tennessee Code Annotated section 50-6-106(1)(B)(5) (2013) provides that the Tennessee
Workers' Compensation Law does not apply to employers who employ fewer than five (5)
regular employees unless the employer is a supplier of construction services, see Tennessee Code
Annotated section 50-6-902(a), or files written notice accepting the coverage of the Law. In that
Rymer did not submit evidence to rebut the averment in Mr. Langford's affidavit that Rymer
employed eleven to twelve (11-12) other employees during the time he worked for Rymer, the
Court, at this time, finds that Rymer is not exempt from coverage under the Tennessee Workers'
Compensation Law.
Mr. Langford Was Not An Independent Contractor When Injured.
Under Tennessee law, an independent contractor is not entitled to benefits under the
Tennessee Workers' Compensation Law if injured in the fulfillment of his duties. Bargery v.
Obion Grain Co., 785 S.W.2d 118, 121 (1990). Tennessee Code Annotated section 50-6-
102(11)(D) (2014) lists the following factors for consideration in the determination as to whether
an injured party is an independent contractor:
1. the right to control the conduct of the work;
2. the right of termination;
3. the method of payment;
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5. the furnishing of tools and equipment;
6. self-scheduling of working hours; and
7. the freedom to offer services to other entities.
In his affidavit, Mr. Langford addresses most of the factors discussed above. He averred,
without rebuttal, that Rymer employed him to deliver and assemble tents; paid him by the hour
with a business check; scheduled and controlled his work; supplied all tools and equipment
necessary to complete the tasks assigned him; and did not allow him to hire helpers. On the
basis of the record before it, the Court finds that Mr. Langford was an employee of Rymer on the
date of injury.
Mr. Langford's Injury Arose Primarily Out OfAnd In The Course And Scope Of Employment.
In his affidavit, Mr. Langford avers that, on the date of injury, "I was an employee of
Scott Rymer d/b/a Party Time Rentals. I was a passenger in [a] truck owned by Scott Rymer that
was involved in a wreck in Lake Charles, Louisiana. The driver of the vehicle fell asleep and the
vehicle hit a concrete barrier." While the DCN indicates that Rymer alleged Mr. Langford's
injuries occurred during a deviation from his job duties, Rymer submitted no information to
support that allegation. Although Mr. Langford's affidavit provides few details about what he
was doing and where he was going at the time of injury, there is nothing in the factual record to
indicate that Mr. Langford's injuries occurred while he was engaged in a personal mission in
deviation of his job duties.
In McCann v. Hatchett, 19 S.W.3d 819, 822 (Tenn. 2000), the Supreme Court held that,
"an employee who travels on the business of the employer is considered to be within the course
of his or her employment continuously during the trip." While, in his affidavit, Mr. Langford
does not describe the purpose of his travel in Louisiana in a Rymer-owned truck, he clearly states
that, on the date of injury, he "was an employee ofiRymer] ... in a truck owned by [Rymer] that
was involved in a wreck in Lake Charles, Louisiana." Rymer's allegation in the DCN that Mr.
Langford's injuries occurred during a deviation from his job duties presupposes that Rymer sent
Mr. Langford out of town on its business. On the basis of the above fact and in view of the legal
principle set forth in McCann v. Hatchett, supra, the Court finds at this time that Mr. Langford is
likely to prevail at a hearing on the merits that his injury arose primarily out of and in the course
and scope of his employment by Rymer.
Mr. Langford Is Entitled To Medical Benefits
Tennessee Code Annotated section 50-6-204 (2013) requires an employer to provide
medical benefits to an employee injured on the job. When the employer fails to give the
employee the opportunity to select the treating physician from a panel, the employer runs the risk
of having to pay the reasonable cost for treatment of the employee's injuries by a physician of
the employee's choice. See Lindsey v. Strohs Cos. 830 S.W.2d 899, 902 (Tenn. 1992); US.
Fidelity & Guaranty Co. v. Morgan, 795 S.W.2d 653,655 (Tenn. 1990).
Mr. Langford did not submit medical records to establish the treatment he received for
his work injury, nor did he submit documentation of the charges he incurred for that treatment.
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Accordingly, the Court cannot at this time award reimbursement of incurred medical charges.
The Court, however, will order that Rymer authorize and pay for future treatment of the
injuries that Mr. Langford sustained in the course and scope of his employment on October 13,
2014. In his affidavit, Mr. Langford stated that Dr. Brett Sanders has provided surgery and other
treatment for his work injuries. Mr. Langford may designate Dr. Brett Sanders as his authorized
treating physician or, if he opts to come under the care of another physician, he may inform
Rymer of this fact and Rymer shall promptly provide him a panel composed of physicians
competent to treat his work-related injuries. See Tenn. Code Ann. §50-6-204.
Mr. Langford Is Entitled To Temporary Disability Benefits.
Mr. Langford stated by affidavit that he fractured his right ankle in the work-related
collision on October 13, 2014, and that, on October 22, 2014, he underwent open reduction,
internal fixation surgery on the ankle. Mr. Langford further states in his affidavit that the
treating surgeon placed his ankle in a cast for six (6) weeks following surgery, after which he
progressed to ambulating with crutches and, then, with a walking boot. Mr. Langford stated by
affidavit that he underwent physical therapy on his ankle and was under restrictions prohibiting
or limiting weight bearing on his right leg from the date of injury until April, 2015.
Rymer submitted no evidence that rebutted the averments in Mr. Langford's affidavit
regarding the extent of his injury and his inability to work during the stated time period. Mr.
Langford did not submit medical evidence that supported the averments he made about his injury
in his affidavit.
In Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978), the Supreme Court held
that, to make out a prima facie case of entitlement to temporary disability benefits, the injured
worker must prove that he was "(1) totally disabled to work by a compensable injury; (2) that
there was a causal connection between the injury and his disability to work; and (3) the duration
of that period of disability." The court went on to hold that, "[w]here the nature of the injury
and the result produced thereby .. .is such that it is evident to the lay mind based on the common
knowledge and experience of mankind that a causal connection exists between the injury and
employee's inability to work, no expert testimony is needed (emphasis added). On the other
hand, where the nature of the injury and the resulting circumstances do not in and of themselves
supply the element of causal connection when tested by the common knowledge of mankind,
expert medical testimony is necessary." Id, at 955. See also Thompson v. Leon Russell Enters.,
834 S.W.2d 927,930 (Tenn. 1992).
The Court finds that common human knowledge supports the conclusion that a person
can break his ankle in the manner alleged by Mr. Langford. Accordingly, the Court does not
require Mr. Langford to submit medical expert opinion to establish that he broke his ankle in a
vehicular collision that occurred in the course and scope of his employment by Rymer.
Although Mr. Langford did not specifically state in his affidavit that he was out-of-work
from the date of injury until his physician released him from weight bearing restrictions, the
Court finds that Mr. Langford's affidavit strongly implies that was the case. On the basis of the
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record before the Court and, specifically, the fact that Rymer did not rebut the averments sworn
to in Mr. Langford's affidavit, the Court finds that Mr. Langford will likely prevail at a Final
Compensation Hearing in his claim for temporary disability benefits from October 14, 2014,
until April1, 2015, a period oftwenty-four (24) weeks and two (2) days.
Rymer shall immediately complete a Wage Statement and file it with the Division of
Workers' Compensation. Based on the information in the Wage Statement, Rymer shall
calculate Mr. Langford's compensation rate and pay him temporary disability benefits at the
applicable rate for the twenty-four (24) weeks, two (2) days, that transpired between October 14,
2014, and April1, 2015
IT IS, THEREFORE, ORDERED as follows:
1. Rymer shall initiate medical benefits by, at Mr. Langford's option, either authorizing Dr.
Brett Sanders to provide reasonable and necessary treatment of the injuries Mr. Langford
received in the course and scope of his employment, or by providing Mr. Langford a
panel of three (3) competent physicians that complies with Tennessee Code Annotated
section 50-6-204(3)(A)(i) so that he can select a physician to treat his work-related
lllJUnes.
2. Rymer shall immediately complete a Wage Statement and file it with the Division of
Workers' Compensation. Based on the information in the Wage Statement, Rymer shall
calculate Mr. Langford's compensation rate and pay him temporary disability benefits at
the applicable rate for the twenty-four (24) weeks, two (2) days, that transpired between
October 14, 2014, and April1, 2015.
3. This matter is set for Initial Hearing on August 4, 2015, at 9:00a.m. Eastern Time.
4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven (7) business days from the date of
entry of this Order as required by Tennessee Code Annotated section 50-6-
239(d)(3). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Division by email to
WCCompliance.Program@tn.gov no later than the seventh (7th) 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.
5. 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.
Initial Hearing:
An Initial Hearing has been set with Judge Thomas Wyatt, Court of Workers
Compensation Claims, on August 4, 2015, at 9:00a.m. Eastern Time. You must call 615-741-
2051 or toll free at 855-747-1721 to participate in the Initial Hearing. Please Note: You must
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call in on the scheduled date and time to partlctpate. Failure to call in may result in a
determination of the issues without your further participation. All conferences are set using
Eastern Time (ET).
ISSUED AND FILED WITH THE COURT OF WORKERS' COMPENSATION
CLAIMS ON THE 24TH DAY OF JUNE, 2015.
Tennessee Court of Workers'
Compensation Claims
1301 Riverfront Parkway, Suite 202
Chattanooga, TN 37402
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 (7) business days of the date
the Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy of the Request for Appeal upon the opposing party.
4. 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 (10) calendar days of the filing of the Expedited Hearing Notice of
Appeal. Alternatively, the parties may file a statement of the evidence within ten (10)
calendar days of the filing of the Expedited Hearing Notice of Appeal. The Judge must
approve the statement of the evidence before the Clerk of Court shall submit the record to
the Clerk of the Appeals Board.
5. 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 (3)
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 (3) business days of the filing of the appellant's position statement.
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appellee elects to file a response in opposition to the interlocutory appeal, appellee shall
do so within three (3) business days ofthe filing of the appellant's position statement.
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 this the 24th day of June, 2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
Jim Bilbo and X jimbilbo@bilbolaw.com
Brent Mcintosh,
Attys.
Clancy Covert, X Clancy@covertlawgroup.com
Atty.
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