AGUILAR, CARLOS v. v. ) State File No. 116019-2019 FOREVER FLOORING, LLC

TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
CARLOS AGUILAR, ) Docket No. 2019-05-1383
Claimant, )
V. ) State File No. 116019-2019
FOREVER FLOORING, LLC, )
Respondent. ) Judge Dale Tipps
EXPEDITED HEARING ORDER GRANTING BENEFITS
This Court held an Expedited Hearing on September 8, 2020, to determine whether
Mr. Aguilar is entitled to medical and temporary disability benefits. Mr. Aguilar asserted
he was Forever Flooring’s employee; Forever Flooring contended he was an independent
contractor. The Court holds that Mr. Aguilar is likely to prevail at a hearing on the merits
that he was an employee and is entitled to medical treatment. However, he has not
established at this time that he is entitled to temporary disability benefits.
History of Claim
Mr. Aguilar worked as an installer for Forever Flooring for fewer than two weeks
before he suffered an injury on November 20, 2019. The parties agreed that he was using
a table saw at a customer’s home and cut two fingers, resulting in the amputation of one of
them. Justin Bolger, the sole member of Forever Flooring, LLC, arrived at the scene soon
after and took Mr. Aguilar to the emergency room.
Forever Flooring denied the claim, asserting that Mr. Aguilar was an independent
contractor. The hearing testimony primarily involved Mr. Aguilar’s employment status.
Mr. Aguilar testified that he contacted Mr. Bolger to see if he needed help in his
business. He said he did not have any tools, and Mr. Bolger agreed to provide them. Mr.
Bolger also agreed to pay Mr. Aguilar $18.00 per hour and believed he could provide forty
hours of work per week.
Mr. Aguilar maintained that Mr. Bolger controlled his work and scheduled his
hours. Mr. Bolger was usually present at the jobsite and worked alongside him, although
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occasionally Mr. Aguilar began work while waiting for Mr. Bolger to arrive. Mr. Aguilar
did not think he had the right to hire his own assistants, and Mr. Bolger denied Mr.
Aguilar’s request to bring his brother to work on a job. On cross-examination, Mr. Aguilar
denied working other flooring jobs with his brother while he was working for Forever
Flooring.
In contrast to Mr. Aguilar’s testimony, Mr. Bolger said that he considered Mr.
Aguilar to be an independent contractor, since they discussed that when he offered him
work. He believed Mr. Aguilar was working on other jobs and was trying to develop his
own customers. Mr. Bolger recalled Mr. Aguilar working on another flooring project on
his two days off.
Mr. Bolger contended that he did not control Mr. Aguilar’s work hours. As an
example, he described a time that he consented to Mr. Aguilar’s request to work two or
three hours on a day when Mr. Bolger was not going to be present. Further, he did not set
starting or stopping times for Mr. Aguilar or tell him when he could take his lunch break.
Tools such as a table saw, chop saw, mallets, and compressor were furnished by Mr.
Bolger. However, at least once, Mr. Aguilar used his own truck to haul off used flooring.
Regarding Mr. Aguilar’s request to bring his brother into the job, Mr. Bolger
testified that he did not refuse the request. Instead, he told Mr. Aguilar it would be better
if he paid Mr. Aguilar and let Mr. Aguilar pay his brother. He explained that this was
because he “was under the impression he was an independent contractor.”
Mr. Bolger admitted he was initially uncertain whether Mr. Aguilar would be an
employee or independent contractor. When Mr. Aguilar first started working, Mr. Bolger
viewed him as an independent contractor. He said he needed time to see if Mr. Aguilar
was competent before hiring him as an employee. However, Mr. Bolger acknowledged, “I
can see now things were left vague.”
Text messages between Mr. Bolger and Mr. Aguilar showed the discussion that led
to Mr. Aguilar working for Forever Flooring. The conversation began with Mr. Aguilar’s
text looking for work. Over the next few days, they discussed Mr. Aguilar’s experience
and pay history until Mr. Bolger asked if he could schedule Mr. Aguilar for the week of
November 18 and offered forty hours at $18 per hour. Then, a few days later, Mr. Bolger
asked if Mr. Aguilar could help with an earlier job that had just come up. Mr. Aguilar said
he was working on Saturday and Sunday but should be free during the week.
Mr. Bolger confirmed Mr. Aguilar’s start date with a text message that included the
following:
My business is picking up and I’m hoping to find a couple [of] good workers.
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I’m excited to see how you work out. I like to think I’m an easy going,
understanding boss that invites input into my business. It’s possible that you
have some experience in flooring that I don’t, so feel free to speak what’s on
your mind as we start work. I didn’t know what exactly [you’re] wanting W-
9 or 1099? I don’t mind having it under the table for the first couple of jobs
until we figure out which route works best. I currently have a couple of part
time help, one of which you’! meet this week.
At the hearing, Mr. Aguilar requested a return to his authorized treating physician,
payment of medical bills, and temporary disability benefits for the time he missed work.
Forever Flooring contended that Mr. Aguilar is not entitled to benefits because he was an
independent contractor. In the alternative, it argued that Mr. Aguilar failed to show
entitlement to medical or temporary disability benefits.
Findings of Fact and Conclusions of Law
Mr. Aguilar must present sufficient evidence demonstrating he is likely to prevail
at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2019). Because Forever
Flooring stipulated that Mr. Aguilar was injured at the jobsite on November 20, 2019, the
threshold issue is whether Mr. Aguilar was Forever Flooring’s employee or an independent
contractor at the time.
Employee/Independent Contractor
Tennessee Code Annotated section 50-6-102(12)(D)() directs courts to consider the
following factors when determining whether an individual is an employee or 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 right to control the conduct of the work is the most significant factor when determining
whether a worker is an employee or independent contractor. Further, once it is established
that an employment relationship exists, “the burden is on the employer to prove the worker
was an independent contractor rather than an employee.” Thompson v. Concrete Solutions,
2015 TN Wrk. Comp. App. Bd. LEXIS 3, at *14, 15 (Feb. 10, 2015).
Applying each factor, both witnesses described mostly working together on the
same site. Mr. Aguilar might have worked independently occasionally, but Mr. Bolger’s
regular presence, as well as his working alongside Mr. Aguilar on the same project, suggest
that he controlled the conduct of the work and favors a finding that Mr. Aguilar was an
employee.
As for the right of termination, Mr. Bolger could have terminated Mr. Aguilar at
any time. This suggests an employee/employer relationship.
Regarding the method of payment, this factor generally supports a finding of an
employment relationship because Mr. Bolger paid Mr. Aguilar an hourly wage, rather than
a contract price.!
Concerning the freedom to select and hire helpers, the parties’ testimony conflicted.
Mr. Aguilar said he was not allowed to bring his brother to help. Mr. Bolger, on the other
hand, testified that he told Mr. Aguilar he would have to pay his brother himself. Notably,
Mr. Bolger seemed to suggest he would pay Mr. Aguilar extra so that he could pay his
brother from the additional payment. This calls Forever Flooring’s contention into
question because it appears it would have been paying the other worker by merely
funneling the payment through Mr. Aguilar. Further, the fact that Mr. Aguilar had to
request permission to bring in his brother implies that he did not have the freedom to select
and hire his own helpers. At best, the Court finds this factor favors neither party.
As to the furnishing of tools, this factor clearly favors Mr. Aguilar. Mr. Bolger not
only provided all the tools, but he also used them alongside Mr. Aguilar as they worked.
Regarding scheduling, Mr. Bolger told Mr. Aguilar that he thought he could offer
him forty hours of work per week. This suggests that Mr. Bolger was responsible for
scheduling Mr. Aguilar’s work hours. Mr. Bolger also testified about a time when he
agreed to Mr. Aguilar’s request to work two or three hours on a day when Mr. Bolger was
not going to be present. This indicates that Mr. Aguilar would have been unable to work
on his own schedule without Mr. Bolger’s permission. Further, Mr. Bolger testified that
Mr. Aguilar worked another job on his days off. The fact that Mr. Aguilar had “days off”
implies that he was expected to coordinate his workdays with Mr. Bolger. This factor
supports the existence of an employer/employee relationship.
Finally, regarding the freedom to offer services to others, the parties disagreed as to
whether Mr. Aguilar worked for his brother on his days off. However, Forever Flooring
presented no evidence on whether the parties had any understanding as to exclusivity. At
' The fact that Mr. Bolger offered to pay Mr. Aguilar “under the table” until they decided whether he would
receive a 1099 or a W-9 shows that neither party had any clear understanding of the relationship at the time
of the accident. Thus, their respective impressions of Mr. Aguilar’s status or whether they had “a meeting
of the minds,” as argued by Forever Flooring, are not relevant.
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best, this factor favors neither party.
Most of the factors that favor one party or the other, especially the element of
controlling the work activities, supports the existence of an employer/employee
relationship, and Forever Flooring presented no proof establishing that Mr. Aguilar was an
independent contractor. Therefore, the Court holds that he would likely prevail at a hearing
on the merits on his claim that he was an employee.
Medical Benefits
The Court turns to Mr. Aguilar’s request for medical benefits. “In circumstances
where an employer refuses to provide medical treatment and/or denies the employee’s
claim, such employer bears the risk of being held responsible for medical expenses incurred
by the employee in the event the claim is deemed compensable.” Young v. Young Elec.
Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 (May 25, 2016). This principle
applies here. Forever Flooring’s denial of Mr. Aguilar’s claim required him to seek
medical treatment on his own. However, as Mr. Aguilar did not offer any admissible
evidence of reasonableness and necessity of his medical bills or their amounts, the Court
cannot find he is likely to establish entitlement to payment of those bills at this time.
Nevertheless, Mr. Aguilar proved he has already established a patient-doctor
relationship with Dr. Brinkley Sandvall, who performed his amputation and reconstruction
surgeries. Mr. Aguilar expressed his desire to return to her during the hearing. Dr. Sandvall
is, therefore, designated as his authorized treating physician, and Forever Flooring shall
schedule a return appointment with her office as soon as practicable. See Thompson vy.
Comcast, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *21-22 (Jan. 30, 2018).
Temporary Disability Benefits
Mr. Aguilar also requested temporary disability benefits. To receive temporary total
disability benefits, Mr. Aguilar must prove (1) he became disabled from working due to a
compensable injury; (2) a causal connection between his injury and his inability to work;
and (3) his period of disability. For temporary partial disability benefits, Mr. Aguilar must
show that his treating physician returned him to work with restrictions that Forever
Flooring either could not or would not accommodate. Jones v. Crencor Leasing and Sales,
2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7, 8 (Dec. 11, 2015).
Here, Mr. Aguilar presented no medical proof that his physicians took him
completely off work or assigned restrictions because of his injury. Without evidence that
he was disabled or restricted from working, Mr. Aguilar has not proven he is likely to
succeed on a claim for temporary disability benefits.
IT IS, THEREFORE, ORDERED as follows:
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. Forever Flooring shall provide Mr. Aguilar with medical treatment made reasonably
necessary by his November 20, 2019 injury. Dr. Brinkley Sandvall shall be the
authorized treating provider, and Forever Flooring shall schedule an appointment
for Mr. Aguilar as soon as practicable.
. The Court denies Mr. Aguilar’s requests for payment of medical bills and temporary
disability benefits at this time.
. This case is set for a Scheduling Hearing on December 22, 2020, at 9:00 a.m. You
must call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
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
confirmation within the period of compliance might 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.
ENTERED SEPTEMBER 18, 2020.
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Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1.
NWP WNd
Mr. Aguilar’s written discovery responses
Copies of text messages
Photographs of Mr. Aguilar’s injuries
Dr. Sandvall’s progress note of December 19, 2019
Vanderbilt Orthopaedics treatment notes (Identification Only)
Vanderbilt Orthopaedics treatment notes
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7. Vanderbilt Office Visit note of December 12, 2019 (Identification Only)
8. Medical bills (identification Only)
9. Affidavit of Carlos Aguilar
Technical record:
Notice of Denial
SAAN YWNSE
Request for Investigation
Exhibit and Medical Records Lists
Forever Flooring’s Statement in Opposition to Expedited Hearing Request
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
First Report of Injury
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
September 18, 2020.
Name Certified | Email Service sent to:
Mail
Carlos Aguilar, x x 1350 Hazelwood St., Apt. 201A
Claimant Murfreesboro, TN 37129
Ricardo.aguilar.0327@gmail.com
Christopher Kim x kim@thompsonslawoffice.com
Thompson,
Respondent’s Attorney
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Penny Shum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
conceming factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): ['Employer!” Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of !nj.:
Appellee(s) (Opposing Party): [| Employer |~ Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082