Kleeberg, Monica v. Profit Line Services, Inc.

FILED
September 23, 2015
TICOURTOF
WORKERS ' C O~IPI:X SATIO:>i
CL..\r.IS
Time: 2:37 PM
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Monica Kleeberg, ) Docket No.: 2015-01-0134
Employee, )
v. ) State File Number: 44486/2015
Profit Line Services, Inc., )
Employer. ) Judge Thomas Wyatt
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
(RECORD REVIEW ONLY)
The Court considers this claim on the request of the Employee, Monica Kleeberg,
for a determination on the record without an evidentiary hearing. The present issues
before the Court are the compensability of Ms. Kleeberg's injury and whether she was an
employee or independent contractor at the time of her injury. 1 The Employer, Profit Line
Services, Inc. (Profit Line), appears before the Court without representation by counsel. 2
For the reasons set forth below, the Court finds Ms. Kleeberg sustained a compensable
injury and, on the date of injury, was an employee of Profit Line. Accordingly, the Court
awards Ms. Kleeberg the medical benefits she seeks, but, at the present time, denies her
request for temporary partial disability benefits.
History of Claim
Ms. Kleeberg is a fifty-one year-old resident of Hamilton County, Tennessee.
(T.R. 1 at 1.) She worked approximately one month as a housekeeper at the Embassy
Suites-Hamilton Place Hotel (Embassy Suites) in Chattanooga, Tennessee before she was
injured on May 9, 2015. (T.R. 3 at 4.) Ms. Kleeberg received her paycheck from Profit
1
Additional information about the exhibits considered by the Court and the technical record is contained in the
attached Appendix.
2
Tennessee Compilation Rules & Regulations 0800-02-21-.05(1)(c), (d) (2014) require that a corporation appear
before the Court through attorney representation. Therefore, in an in-person hearing, the Court would not consider
evidence submitted by, or positions contended by, a non-attorney party representing Profit Lines. See Higgins v. Big
K Food Market & Liquors, Inc., No. 2014-01-0007, 2014 TN Wrk. Comp. App. Bd. LEXIS 3, at *9-12 (Tenn.
Workers' Comp. App. Bd. Dec. 8, 2014.) However, in an on-the-record determination, the Court does not know the
identity of the party submitting the materials contained in the court file. Accordingly, the Court will consider all
documents in the file.
1
Line (T.R. 3 at 6, 7), which had a Service Agreement with Embassy Suites "for the
provision of ... housekeeping, laundry, ... or other such jobs or tasks agreed upon."
(Ex. 3.) (Emphasis added.)
On May 9, 2015, Ms. Kleeberg slipped on water and fell in the lobby of the
Embassy Suites. (T.R. 3 at 4; Ex. 10 at 2.) The fall occurred as she walked to the laundry
room to pick up linen for a bedroom she was cleaning. (Ex. 10 at 2.) Ms. Kleeberg
injured her left wrist in the fall. (T.R. 3 at 4.)
Ms. Kleeberg reported her injury to her supervisor, who told her to say the injury
occurred at home. (T.R. 3 at 4.) Ms. Kleeberg immediately sought emergency care on
her own at an Erlanger Medical Center satellite facility. (Ex. 1 at 4-7; Ex. 10 at 2, 3.) X-
rays of Ms. Kleeberg's left wrist revealed a fracture of the radius bone. (Ex. 1 at 8.) Ms.
Kleeberg came under the care of Dr. J. Woodfin Kennedy, who surgically repaired her
left wrist at Erlanger Medical Center on June 1, 2015. (Ex. 1 at 1-2.)
Ms. Kleeberg sought workers' compensation benefits from Profit Line without
success. On June 12, 2015, she filed a Petition for Benefit Determination seeking
medical and temporary disability benefits. (T.R. at 1.) On July 23, 2015, the assigned
mediating specialist issued a Dispute Certification Notice indicating, "[ e]ach of the
employers listed deny that they owe benefits. The employers state that the employee is a
contractor and not an employee." (T.R. 2 at 1.) On August 3, 2015, Ms. Kleeberg filed a
Request for Expedited Hearing, with an accompanying affidavit, for an on-the-record
determination. (T .R. 3.) Profit Line did not object to an on-the-record determination.
On August 13, 2014, the Court issued an Order informing the parties it would
determine Ms. Kleeberg's Request for Expedited Hearing on the record. (T.R. 4.) The
Order also advised Profit Line that a corporation must appear before the Court through
attorney representation and the Court would not consider any statement by, or material
submitted from, a non-attorney on behalf of Profit Line. (T.R. 4.) Profit Line remains
before the Court without attorney representation ..
Findings of Fact and Conclusions of Law
General Legal Principles
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). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
2
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 3 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). Instead, an employee has the burden to come forward with sufficient evidence
from which the trial court can determine that the employee is likely to prevail at a hearing
on the merits. Id.
Ms. Kleeberg Was an Employee at the Time ofInjury.
Tennessee Code Annotated section 50-6-102(11)(D) (2014) provides:
In a work relationship, in order to determine whether an individual is an
"employee," or whether an individual is a "subcontractor" or an
"independent contractor," the following factors should be considered:
(i) The right to control the conduct of the work;
(ii) The right of termination;
(iii) The method of payment;
(iv) The freedom to select and hire helpers;
(v) The furnishing of tools and equipment;
(vi) Self-scheduling of working hours; and
(vii) The freedom to offer services to other entities[.]
While no single factor is determinative when deciding whether a worker is an
employee or an independent contractor, the Supreme Court has repeatedly emphasized
the importance of the right to control the work when distinguishing employees and
independent contractors, the relevant inquiry being whether the right existed, not whether
it was exercised. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 586 (Tenn.
1991); Jewell v. Cobble Const. & Arcus Restoration, No. 2014-05-0003, 2015 Tenn.
Wrk. Comp. App. Bd. LEXIS 1, at *15 (Tenn. Workers' Comp. App. Bd. Jan. 12, 2015).
The burden of proof is on the alleged employer in establishing an independent contractor
relationship with an injured worker. Butler v. Johnson, 426 S.W.2d 515, 519 (Tenn.
1968).
In her affidavit, which stands unrebutted, Ms. Kleeberg stated the supervisor of
3
The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July l, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
3
housekeeping at Embassy Suites controlled all aspects of her work (the days and times
she came to work, how many hours she worked each day, which rooms she cleaned, and
whether she was required to returned to her assigned rooms for additional cleaning.)
(T.R. at 4.) Ms. Kleeberg's affidavit also sets forth that Embassy Suites provided all
cleaning supplies, equipment, and the uniform she used. !d.
While it appears Profit Lines did not deduct withholding and Social Security taxes
from Ms. Kleeberg's paychecks (T.R. 3 at 6, 7), all other information in the Court file
indicates Ms. Kleeberg was an employee of Profit Line at the time she was injured.
Accordingly, Profit Line has not met its burden of proving Ms. Kleeberg was an
independent contractor.
Ms. Kleeberg 's Injury Arose Primarily out of and in the Course and Scope of
Employment
To be compensable under the workers' compensation statutes, an injury must arise
primarily out of and in the course and scope of the employment. Tenn. Code Ann. § 50-
6-102(13) (2014). In Hosford v. Red Rover Preschool, No. 2014-05-0002, 20141N Wrk.
Comp. App. Bd. LEXIS 1, at *19-20 (Tenn. Workers' Comp. App. Bd. Oct. 2, 2014), the
Tennessee Workers' Compensation Appeals Board reiterated the following longstanding
principles relative to the determination of compensability:
An injury occurs in the course of employment if it takes place while the
employee was performing a duty he or she was employed to perform. Fink
v. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers' Comp. Panel 1993).
Thus, the course of employment requirement focuses on the time, place,
and circumstances of the injury. Saylor v. Lakeway Trucking, Inc., 181
S.W.3d 314, 318 (Tenn. 2005). In contrast, arising out of employment
refers to causation. Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690,
692 (Tenn. 1997). An injury arises out of employment when there is a
causal connection between the conditions under which the work is required
to be performed and the resulting injury. Fritts v. Safety Nat'! Cas. Corp.,
163 S.W.3d 673, 678 (Tenn. 2005). Put another way, the element of
causation is satisfied when the "injury has a rational, causal connection to
the work." Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 498 (Tenn.
1992).
Ms. Kleeberg stated in her Petition for Benefit Determination she suffered a "left
wrist fracture" on May 9, 2015, when she "slip on wet floor at Chatt Embassy Suites."
(T.R. 1 at 1.) In her affidavit, Ms. Kleeberg averred, "I was injured on May 9, 2015,
when I slipped on a wet floor, fell and injured my wrist." (T.R. 3 at 4.) In the translated
narrative she filed, Ms. Kleeberg wrote, "the male manager asked me: Why did I go to
the laundry room? And I told him to pick up linen for a bedroom." (Ex. 10 at 2.)
4
The medical records filed with the Court Clerk indicate Ms. Kleeberg sought
treatment of her left-wrist injury the day it occurred. (Ex. 1.) The emergency room
physician, who treated Ms. Kleeberg, diagnosed the injury as a broken radius bone in the
left wrist and referred her for orthopedic care. (Ex. 1 at 6, 8.) Orthop~dic surgeon Dr. J.
Woodfin Kennedy recommended surgery, which he soon afterward performed in an out-
patient procedure. (Ex. 2.)
Based on the above unrebutted statements, the Court finds that, at a Final
Compensation Hearing, Ms. Kleeberg will likely establish she broke her left wrist in the
performance of the housekeeping duties Profit Lines hired her to perform.
Ms. Kleeberg is entitled to Medical Benefits.
Tennessee Code Annotated section 50-6-204 (2014) 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); U.S. Fidelity & Guaranty Co. v. Morgan, 795
S.W.2d 653, 655 (Tenn. 1990).
Ms. Kleeberg reported her left-wrist injury to her supervisor immediately after its
occurrence. (Ex. 10, at 2-3.) The supervisor offered to call a taxi to take her for
treatment. (Ex. 10, at 2-3.) As she was leaving to go for care, Ms. Kleeberg stated in her
translated narrative that, "a Latina supervisor comes up to me, and tells me that Mr.
4
Rudy told her to tell me to tell the hospital that I had an accident in my home, and that
he was going to pay all my bills. That I shouldn't worry." (Ex. 10 at 3.)
Ms. Kleeberg stated in her translated narrative she tried "many times" to obtain
payment from Profit Line for charges she incurred for treatment of her left-wrist injury.
(Ex. 10 at 4.) She stated Profit Line's supervisor told her to "sue him" or "put him in
jail." (Ex. 10 at 4.) When Ms. Kleeberg filed a Petition for Benefit Determination to
obtain benefits, Profit Lines lodged an "independent contractor" defense instead of
paying the claim. (T .R. 2 at 1.)
As discussed above, the medical records submitted to the Court indicate Ms.
Kleeberg suffered a broken left wrist on May 9, 2015, when she fell at work. At a Final
Compensation Hearing, the Court finds Ms. Kleeberg will likely prevail in establishing
that the emergency care she received on the date of injury; her referral to an orthopedic
4
The Court notes "Rudy A. Lugo" signed a Profit Line contract submitted as part of the court record in this claim.
(Ex.6atl.)
5
surgeon; and the surgery to repair her broken left wrist constitute reasonable and
necessary medical treatment of her compensable injury.
The Court likewise finds that Ms. Kleeberg gave Profit Line reasonable
opportunity to provide authorized treatment, but it failed to avail itself of that
opportunity. 5 Accordingly, the Court finds Ms. Kleeberg reasonably sought necessary
care on her own for her serious work-related left-wrist injury.
The Court orders Profit Line to pay for the left-wrist treatment Ms. Kleeberg has
received to date. The Court also orders Profit Line to authorize and pay for future
reasonable and necessary medical treatment of her compensable left-wrist injury under
the care ofDr. Kennedy.
Ms. Kleeberg Is Not Entitled to Temporary Disability Benefits.
To establish a prima facie case for temporary total disability benefits, an employee
must show that: (1) he or she was disabled and unable to work as a result of a
compensable injury; (2) that a causal connection exists between the injury and the
employee's inability to work; and (3) the duration of the period of the employee's
disability. Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 443 (Tenn. 2004);
Jewell, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21. This Court finds the above
factors equally apply to the establishment of a claim for temporary partial disability
benefits.
The record is silent as to whether Ms. Kleeberg worked after her injury. Because
she bears the burden of proving every element of her claim, including her entitlement to
temporary disability benefits, the Court cannot determine the first prong of the Gray test
set forth above: whether Ms. Kleeberg was disabled and unable to work due to a work
injury. For that reason, the Court, at this time, denies Ms. Kleeberg's claim for
temporary disability benefits.
5
Profit Line submitted no evidence of its initial investigative efforts of Ms. Kleeberg's claim. Further, Profit Line
neither offered a panel nor denied her claim within fifteen days of her notice. The "Claims Handling Standards"
provide that, "Decisions on workers' compensation insurance coverage and compensability shall be made within
fifteen (15) days of verbal or written notice of accident." Tenn. Comp R. & Regs. 0800-2-14-.08(7) (2015). The
Standards provide, "In addition to other penalties provided by applicable law and regulation, violations of any of the
above rules shall be subject to enforcement by Commissioner of the Tennessee Department of Labor pursuant to
TCA §50-6-419(c)." Tenn. Comp R. & Regs. 0800-2-14-.08(1) (2015) Upon its issuance, a copy ofthis Order will
be provided to the Penalty Program in accordance with Tenn. Comp. R. & Regs. 0800-02-24-.03 (2015) ("In
addition to referrals made by a workers' compensation judge, any [Bureau] employee may refer any person or entity
to the penalty program for the assessment of a civil penalty whenever the referring employee believes that there may
have been a violation of the [Bureau's] rules or the Tennessee Workers' Compensation Act."). The Court
reasonably believes there may have been a violation of the Bureau's rules.
6
IT IS, THEREFORE, ORDERED as follows:
1. Profit Line shall provide past and future medical benefits for Ms. Kleeberg's
compensable left-wrist injury, including but not limited to payment of all
reasonable and necessary treatment of her injury at Erlanger Medical Center and
by, and as prescribed by, Dr. J. Woodfin Kennedy. Ms. Kleeberg or the providers
shall provide documentation of the incurred charges to Profit Line.
2. The Court, at the present time, denies Ms. Kleeberg's claim for temporary
disability benefits.
3. This matter is set for a telephonic Initial (Scheduling) Hearing on December 9,
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 business days
from the date of entry of this Order as required by Tennessee Code
Annotated section 50-6-239(d)(3) (2014). The Insurer or Self-Insured
Employer must submit confirmation of compliance with this Order to the
Bureau by email to WCCompliance.Proe;ram@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.
5. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WC ompliance.Program@tn.go or by calling (615)
253-1471 or (615) 532-1309.
ENTERED this the 23d day of September, 2015.
Judge Thomas Wyatt
Court of Workers' Compensation Claims
Initial (Scheduling) Hearing:
A Scheduling Hearing has been set with Judge Thomas Wyatt, Court of
Workers' Compensation Claims, at 9:00 a. m. Eastern Time on December 1, 2015.
You must ca11615-741-3061 or toll-free at 855-747-1721 to participate in the Initial
Hearing.
7
Please Note: You must call in on the scheduled date and time to
participate. Failure to caD in may result in a determination of tbe issues without
your further participation.
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 business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shan result in dismissal of the
appeal.
5. 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 calendar days of the filing of the Expedited
Hearing Notice of AppeaL Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
8
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
three business days of the expiration of the time to file a transcript or statement of
the evidence, specifYing the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within three business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
CERTIFICATE OF SERVICE
I hereby certifY that a true and correct copy of the Expedited Hearing Order For
Medical Benefits was sent to the following recipients by the following methods of service
on this the 23 d day of September, 20 15.
Name Certified Via Service sent to:
Mail Email
Monica Kleeberg, X 4900 Maywater Rd.,
Self-Represented Ooltewah, TN 37363
Profit Lines Services, X X Rudylugo 123 @hotmail.com
Inc., c/o Rudy Lugo,
Unrepresented
Compliance Program X WCCompliance.Program@tn.gov
~. ~::;
Co~·;:; ;;.{il~rkers' Compensation Claims
WC.CourtCierk@tn.gov
9
APPENDIX
Exhibits:
1. Erlanger Medical Center Records (9 pages);
2. The Plastic Surgery Group VW/Dr. J. Woodfin Kennedy records (5 pages);
3. July 27, 2015 letter from Embassy Suites-Chattanooga-Hamilton Place to the
Bureau of Workers' Compensation ( 1 page);
4. Service Agreement between Embassy Suites-Chattanooga-Hamilton Place and
Profit Lines (9 pages);
5. Service Agreement between Embassy Suites and Profit Lines (7 pages);
6. Profit Line contract and forms (4 pages);
7. Blue Cross Blue Shield of Tennessee subrogation notice (2 pages);
8. Certificate of Liability Insurance (2 pages);
9. Narrative statement of Monica Kleeberg (in Spanish) (4 pages); and
10. Narrative statement of Monica Kleeberg (English translation) (9 pages).
Technical record:
1. Petition for Benefit Determination, filed June 12, 2015;
2. Dispute Certification Notice, filed August 4, 2015;
3. Request for Expedited Hearing, with accompanying affidavit, filed August 3,
2015;and
4. Order, filed August 13, 2015.
10