Ovando, Gabriela v. Twin Stone Design & Installation and F & V Ceramic Installer

FILED
Sep 25, 2018
12:57 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
them on a per-unit basis. Twin Stone's subcontractors executed subcontractor agreements
and carried their own workers' compensation insurance. Ms. Ovando worked for various
subcontractors, including F& V, but did not enter into a subcontractor agreement.
How Ms. Ovando began working at the site is disputed. For her part, she testified
Juan Ortiz, a representative of Twin Stone, telephoned her home in Memphis to inquire if
she was interested in tile-finishing work. She said she neither knew how Mr. Ortiz
obtained her number nor how he knew of her experience in grouting and caulking.
Nevertheless, she traveled to Nashville, met Mr. Ortiz, and observed the prospective job.
She accepted the per-unit rate for finishing quoted by Mr. Ortiz and accepted his offer to
live in an apartment provided by Twin Stone. She said she considered herself Twin
Stone's employee.
Conversely, Mr. Ortiz denied calling Ms. Ovando. Instead, he said she came to the
site and inquired about a job. He then coordinated Ms. Ovando's work for the
subcontractors. He agreed with her testimony regarding the pay rate and noted another
tile finisher had the same arrangement. Ms. Ovando and another worker were available to
perlorm grouting and caulking for subcontractors, and the subcontractors paid them out
of their per-unit fee.
Ms. Ovando began working in December 2017, approximately two weeks after
meeting with Mr. Ortiz. She described that she documented her work for the
subcontractors by writing her name on the wall, or a sheet of paper on the wall, of each
bathroom where she worked. The installers wrote their names on the wall too. Mr. Ortiz
then compiled a list of the rooms each subcontractor installed in a given week and noted
which bathrooms Ms. Ovando finished. Payment then passed through Twin Stone to the
subcontractors and then to Ms. Ovando.
Ms. Ovando's injury occurred in a bathroom tiled by "Hector," according to the
name written on the wall, although she did not know which subcontractor employed him.
But, after her injury, Mr. Ortiz and another Twin Stone employee took her to a hospital.
She said the men told her not to tell hospital staff that she was injured at work. The
hospital provider diagnosed her fracture, and she later saw an orthopedic surgeon who
recommended surgery to straighten the fracture; she declined. She later agreed to the
operation but has not had it because both Twin Stone and F& V denied her claim. She
introduced medical bills from her surgeon, a physician at the Hughston Clinic.
Regarding her employment relationship, Ms. Ovando testified Twin Stone
provided her the raw materials and tools. She wore a Twin Stone shirt, reflective safety
vest, and helmet provided by Twin Stone. The shirts and vests bore Twin Stone's name.
Copies of text messages between Ms. Ovando and Mr. Ortiz memorialized their
conversations regarding the specifics of the work she was to perlorm, the pay rate, and
her work hours. When Ms. Ovando requested an increased per-unit fee, Mr. Ortiz
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renegotiated the rate with the subcontractors, another fact confirmed by text message.
None of the parties offered contrary documentary evidence. Ms. Ovando also said Mr.
Ortiz had authority to review the quality of her work, and he coordinated her housing
arrangements in Nashville. She detailed many discussions between them about her
housing.
Twin Stone confronted Ms. Ovando regarding her version of the hiring process as
an odd scenario of her receiving a call from someone she did not know but nevertheless
traveled to Nashville to accept a job. Further, it pointed out she never received direct
payments from Twin Stone or worked hourly, and she performed work for several
subcontractors. Further, she never completed a Twin Stone application nor had taxes
withheld by Twin Stone. It noted all workers at the site were required to attend safety
meetings, and the attendance forms from those meetings showed names of contractors
other than Twin Stone beside her name, confinning she worked for entities other than
Twin Stone.
Twin Stone offered further testimony from Mr. Ortiz that he had no authority to
hire "employees." Though he coordinated the subcontractors' work, he did not require
any installer to use Ms. Ovando's services. Further, he denied coordinating her moving to
the apartment, negotiating an increased pay rate, or directing her individual work in any
way. However, Ms. Ovando had him admit on cross-examination that he testified in
discovery that he indeed did those things. She directly impeached him with the text
messages between them confinning that he did. Mr. Ortiz said he believed Ms. Ovando
was a subcontractor.
Mayra Parente was the Chief Operating Officer of Twin Stone and helped
coordinate the company's contract with the general contractor. She said Mr. Ortiz did not
have authority to hire employees but could obtain subcontractors. She had no personal
knowledge of what Mr. Ortiz might have said about the relationship with Ms. Ovando but
said Twin Stone had no record of her being an employee. She also confirmed Twin Stone
provided housing because workers who live nearby are "more efficient."
Feliciano Vargas testified he owns F&V and subcontracted with Twin Stone. His
contact person was Mr. Ortiz, and he assisted Mr. Vargas in completing the subcontractor
agreement.2 Mr. Vargas did not work at the site after December 2017 but retained
"people" there, including "Hector." Mr. Vargas said Mr. Ortiz assigned the units, and the
subcontractors were responsible for getting workers to perform the work. He said his
workers could use Ms. Ovando's services if they wanted, and they would pay her.
Based on this proof, Ms. Ovando asserted that Twin Stone was her employer. She
argued that the factors of Tennessee Code Annotated section 50-6-102(D)(i) applied to
2
Mr. Vargas, Mr. Ortiz and Ms . Ovando speak Spanish as their primary language; Mr. Ortiz is bilingual_
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this case. Namely, the factors that apply to a determination of an independent contractor
apply equally to a determination of which of the two employers is responsible for an
injury. Here, it was Twin Stone, through Mr. Ortiz, that Ms. Ovando said controlled the
work, her hours, provided her with tools, and set the payment for her work. She pointed
to Mr. Ortiz's contradictions between his discovery deposition and trial testimony on
these factors .
Ms. Ovando admitted that the bathroom where she was hurt, installed by "Hector,"
might have been completed by an F&V contractor. Regardless, the factors still weigh in
favor of Twin Stone as her employer.
For its p~ Twin Stone questioned Ms. Ovando's testimony that she relocated to
Nashville based on a call from a man she did not know. It also noted tile grouting is a
menial task, and Twin Stone could have found workers in the Nashville area to perform it
without seeking out Ms. Ovando in Memphis.
Twin Stone further argued Ms. Ovando was an independent contractor based on
the statutory factors. Specifically, she had the option to seek work from other
subcontractors, meaning she had control over her own work. Her payments were in cash,
and no taxes were withheld by Twin ~Stone. She reported to work at set hours because of
mandatory safety meetings, not because of Twin Stone's directives. Twin Stone's control
of the work was only to coordinate forty or more independent contractors for
installations. It argued the Court need not invoke Tennessee Code Annotated section 50-
6-113, the statutory employer section, because F&V had workers' compensation
coverage, and she did not need to "go up the ladder" to Twin Stone. Alternatively, if the
Court found Ms. Ovando were a Twin Stone employee, then the Court should consider
she was a joint employee of Twin Stone and F&V under Tennessee Code Annotated
section 50-5-111.
Finally, F&V echoed Ms. Ovando's arguments that Twin Stone was the proper
employer under the statutory factors. It argued there was no proof that it paid Ms.
Ovando for work on the date of injury, and its employment relationship with her was
"tangential" at best.
Findings of Fact and Conclusions of Law
Standard applied
Ms. Ovando must come forward with sufficient evidence to show she likely
would prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(l).
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Analysis
•
Ms. Ovando must first establish she was an employee and if so, for whom - Twin
Stone or F&V. Ms. Ovando contended Twin Stone employed her. The Court agrees.
Initially, the Court considers two definitions. First, an "employee" is a person
employed under a contract of hire, either written or implied. Tenn. Code Ann. § 50-6-
102(1 l)(A). The contract of hire is an agreement for an employer to pay an employee for
her services. Beers v. Bhakta dl b/a Ram Constr., 2015 1N Wrk. Comp. App. Bd. LEXIS
7, at *11 (Apr. 8, 2015). Conversely, an independent contractor is one who contracts with
another to perform work without being subject to the other's control except as to the
result of the work. An independent contractor has the right to employ and direct its own
workers without the other's control as to the methods used to attain a result. Peters v.
Mitchell d/b/a A Clean Connection, LLC, 2016 TN Wrk. Comp. App. Bd. LEXIS 7, at
*7-8 (Feb. 8, 2016).
Applying the first definition, the Court holds Ms. Ovando was Twin Stone's
employee. Specifically, she entered into an agreement with Mr. Ortiz to receive payment
for her services. Mr. Ortiz, on behalf of Twin Stone, negotiated the rate, coordinated
payment, and assigned the units where her services were performed. These facts support
the forming of an implied contract of hire. Conversely, F&V never entered into an
employment agreement of any kind; it simply followed the terms dictated by Twin Stone.
Applying the second definition, the Court finds Twin Stone and F &V were
independent contractors. Twin Stone, retained by the general contractor to perform tile
installation, entered into a subcontractor agreement with F &V to do the same.
Applying the second definition to Ms. Ovando, the Court finds she was not an
independent contractor. Unlike F&V and others, she never completed a subcontractor
agreement. Further, a consideration of the following factors of Tennessee Code
Annotated section 50-6-102(D)(i) confirm she was not an independent contractor:
(a) The right to control the conduct of the work;
(b) The right of termination;
(c) The method of payment;
(d) The freedom to select and hire helpers;
(e) The furnishing of tools and equipment;
(f) Self-scheduling of working hours; and
(g) The freedom to offer services to other entities.
The Court will take the factors in turn while noting the Appeals Board's directive that the
"factors are not absolutes that preclude an examination of the parties' working
relationship as a whole." Peters, at *8.
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First, the Court finds Twin Stone, through Mr. Ortiz, controlled the conduct of the
work. Admittedly, he did not personally supervise how Ms. Ovando, or anyone else,
actually installed or finished bathroom tile. But, he did see to the assignment of the rooms
to complete and coordinated payments to the workers who completed them. In Peters, the
employer's "jobsite supervisor, would review [a] list and ensure that each task had been
completed." Id. at *10. Mr. Ortiz performed a similar task here.
Second, the evidence supports a finding that Twin Stone, through Mr. Ortiz, could
terminate Ms. Ovando' s employment at any time. But for his initial contact with her, Ms.
Ovando would not have worked at the job site. Likewise Ms. Ovando testified she
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considered Mr. Ortiz her "boss»' and the Court believes her. Though her explanations of
some facts were less than perfect, she was the more credible of the witnesses. The text
messages between them demonstrate the authority he had over her relationship with Twin
Stone.
Third, the method of payment here was more like an independent contractor
relationship. However, in context, the per-unit payment to Ms. Ovando was based on Mr.
Ortiz' documentation of the bathrooms she completed and the assignment of those rooms
for completion was within his control. He also renegotiated the rate the subcontractors
had to pay to Ms. Ovando, indicating Twin Stone's control over the payment process.
Fourth, Ms. Ovando used helpers, according to Mr. Ortiz. This favors an
independent contractor relationship but, again in context, does not change the
overarching relationship of Ms. Ovando as an employee. The Court finds any help Ms.
Ovando received from family and friends was minimal at best, and the proof established
her work did not require regular helpers.
Fifth, Twin Stone provided the raw materials to Ms. Ovando, and she did not use
her own tools.
Sixth, regarding the self-scheduling of working hours, the Court finds Twin Stone
set Ms. Ovando' s hours. She testified she reported to and left work at times set by Mr.
Ortiz and the text messages between them confirm that he had control over when she
could or should report to work.
Seventh, and finally, the factor of offering services to others does not apply in this
context. Ms. Ovando's commitment to working the specific project prohibited her from
working elsewhere during the period she lived in Twin Stone-provided housing in
Nashville. Twin Stone correctly pointed out that Ms. Ovando did work for others,
including several different subcontractors. But, it was Twin Stone who controlled the
work she did for others.
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Based upon the totality of the evidence, the Court holds Ms. Ovando would likely
prevail in establishing she was a Twin Stone employee. Given this holding, the Court
need not address any issues regarding the statutory employer or joint employee sections
of the statute.
IT IS, THEREFORE, ORDERED as follows:
1. Twin Stone shall pay Ms. Ovando' s medical bills from the Hughston Clinic in the
amount of $2,111.00.
2. Twin Stone shall provide Ms. Ovando a panel of orthopedic surgeons under
Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) from which she may
choose a treating physician.
3. This matter is set for a Status Hearing on Monday, November 19, 2018 at 9:00
a.m. Central time. The parties must call 731-422-5263 or toll-free 855-543-
5038 to participate in the Hearing.
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).
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 confmnation 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
WCCompliance.Program@tn.gov
ENTERED this the 25th day of Sept ~-
pensation Claims
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APPENDIX
Exhibits:
1. Photographs of Employee's helmet and reflective shirts and vests
2. Text messages between Employee and Twin Stone supervisor
3. "Daily Analysis of Dangers" Report of general contractor
4. Medical Records of Hughston Clinic
5. Medical Bills of Hughston Clinic
6. Employee's Responses to Twin Stone's Interrogatories
7. General Contractor's Safety Orientation Roster
8. Subcontractor Agreements between various subcontractors and Twin Stone
9. Payment receipts for Twin Stone payments to apartment complex
10. F&V Invoice for work performed for Twin Stone on March 12, 2018
11. Photocopies of checks payable to F&V from Twin Stone for work completed
weeks ending March 9, 2018 and March 23, 2018.
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Twin Stone's Motion for Pre-Expedited Hearing Discovery
5. Employee's Response to Twin Stone's Discovery Motion
6. Order for Discovery and Setting Expedited Hearing
7. Twin Stone's Motion to Extend Filing Deadline
8. Order Extending Time to File Expedited Hearing Submissions
9. F&V's Motion to Quash Notice of Vargas' Deposition
10. Twin Stone's Response to Motion to Quash
11. Agreed Order on Motion to Quash
12. Twin Stone's Pre-Expedited Hearing Submissions
13. Employee's Brief
14. Employee's Witness and Exhibit List
15. F&V's Pre-Expedited Hearing Statement
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 25th day
of September, 2018.
Name Email Service sent to:
Bryce W. Ashby, x bryce@donatilaw.com
Attorney for Employee
Nicholas J. Peterson and x nick@petersonwhite.com
Catherine Dugan, cate@petersonwhite.com
Attorneys for Twin Stone
David Darnell and Dennis Sadler, x david. damell@leitnerfirm.com
Attorneys for F & V Ceramic Installers dennis. sadler(a),leitnerfirm. com
Penny Shrum, Clerk of Court
Court of Workers' Compensation Claims
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