Zhou, Qiao v. Yums Subs

FILED
Dec 10, 2018
11:49 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
QIAO ZHOU, ) Docket No. 2018-08-0640
Employee, )
v. ) State File No. 38746-2018
YUMS SUBS, )
Uninsured Employer. ) Judge Deana C. Seymour
EXPEDITED HEARING ORDER DENYING BENEFITS
________________________________________________________________________
This matter came before the Court on November 14, 2018, for an Expedited
Hearing. Mr. Zhou claimed benefits for injuries he suffered on June 28, 2017. Yums Subs
argued that Mr. Zhou neither worked for Yums nor suffered a work-related injury. The
central legal issue is whether Mr. Zhou demonstrated he is likely to prevail at a hearing
on the merits. The Court holds he failed to meet his burden and denies the requested
benefits. 1
History of Claim
Mr. Zhou worked as a cook for Yums. He claimed he injured his back when he
jumped from a second-floor window during an argument with the owner’s husband, Ming
Chi. When Yums denied workers’ compensation benefits, he filed a Petition for Benefit
Determination.
The Bureau initiated an insurance-coverage investigation, and the parties
stipulated to the report’s introduction into evidence. The Bureau investigator identified
Yums as an uninsured sole proprietorship on the day of Mr. Zhou’s injury. The parties
agreed that Yums employed Mr. Chi as a part-time cook, but the parties disagreed on
whether Mr. Zhou worked for Yums at the time of his injury. The investigator found the
owner’s minor children occasionally worked the front counter but did not receive pay.
1
Yums filed a Motion to Dismiss challenging the applicability of the Workers’ Compensation Law to this
claim. However, this potentially dispositive motion did not allow Mr. Zhou thirty days to respond before
this Expedited Hearing. Thus, the Court applied the standard of proof under Tennessee Code Annotated
section 50-6-239(d) (2018).
1
The investigator also determined that the owner, Ms. Xiuyun Chi, allowed Mr. Zhou to
live in her apartment while working for Yums. Before Yums fired Mr. Zhou, it employed
three people: Mr. Chi, an unnamed cook, and Mr. Zhou. Ms. Chi worked but did not
receive wages.
Both parties provided a different account of the incident that led to the injury.
According to Mr. Zhou, a robbery occurred at Yums five days before his injury. 2 Mr.
Zhou did not resist the robbers, which angered Mr. Chi. A few days later, Mr. Chi
reprimanded Mr. Zhou and terminated him for burning Yums’ ribs. Fearing for his safety,
Mr. Zhou retreated to his apartment. The next morning, Mr. Chi stopped by the apartment
and told Mr. Zhou to leave, since he no longer worked for Yums. Mr. Zhou discovered
Mr. Chi locked him inside the apartment. Mr. Zhou kicked out the window and jumped to
the ground.
In contrast, Mr. Chi testified that he fired Mr. Zhou the day before he suffered
injuries because Mr. Zhou burned Yums’ ribs. Mr. Chi went to Mr. Zhou’s apartment the
next morning and told him to get out. The men fought and fell from the window.
Findings of Fact and Conclusions of Law
Mr. Zhou must prove the essential elements of his claim. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). He must
present sufficient evidence for the Court to determine he is likely to prevail at a hearing
on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *9 (Mar. 27, 2015).
The determinative issue is whether an employer-employee relationship existed
within the meaning of the Tennessee Workers’ Compensation Law at the time of his
injury. Three elements must exist for an employment relationship: an employee, an
employer, and a contract for hire. Tenn. Code Ann. § 50-6-102(12)(A).
An “employee” includes every person under a “contract of hire” in service to an
“employer.” Id. Here, Mr. Zhou did not produce a written employment agreement.
Further, by his own admission, he last worked for Yums on June 27, but sustained
injuries on June 28. Mr. and Ms. Chi confirmed Yums last employed Mr. Zhou on June
27, the afternoon before the injury. The Court holds Mr. Zhou failed to sufficiently prove
that Yums employed him on June 28, the date of his injury.
In addition the Court finds that Yums did not employ five persons for pay as
required to be subject to the Workers’ Compensation Law. “Employer” is defined as “any
individual, firm, association or corporation . . . using the services of not less than five (5)
2
Mr. Zhou testified with assistance from a state-registered Mandarin interpreter.
2
persons for pay[.]” Tenn. Code Ann. §50-6-102(13). Mr. Zhou argued Yums employed
six people at the time of his injury, including Mr. and Ms. Chi, their two minor children,
an unnamed employee, and himself. Ms. Chi countered that Yums only paid wages to
three individuals: Mr. Chi, a part-time employee, and Mr. Zhou until his termination. Her
minor children did not receive compensation for occasionally “helping out,” and she did
not receive compensation. The Bureau’s report supported Yums’ position. The Court
holds the evidence did not sufficiently establish that Yums is subject to the Workers’
Compensation Law.
Considering the evidence as a whole, the Court holds that Mr. Zhou is unlikely to
prevail at a hearing on the merits and denies the requested benefits at this time. Based on
this ruling, the Court finds it unnecessary to address the remaining issues.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Zhou’s claim is denied at this time.
2. This matter is set for a Scheduling Hearing on February 11, 2019, at 11:00 a.m.
Central Standard Time. The parties must call (toll-free) 866-943-0014 to
participate in the Hearing. Failure to call in may result in a determination of the
issues without the parties’ participation.
Entered December 10, 2018.
____________________________________
JUDGE DEANA C. SEYMOUR
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination, along with attachments.
2. Dispute Certification Notice, along with additional issues raised by the parties.
3. Request for Expedited Hearing, along with Mr. Zhou’s affidavit.
4. Employer’s Opposition to the Request to a Decision on the Record, along with
attachments.
5. Order Denying Employee’s Request for a Decision on the Record.
6. Motion to Dismiss.
Exhibits:
3
The parties jointly moved the Technical Record into evidence and identified the
exhibits as follows:
1. Petition for Benefit Determination, along with attachments.
2. Dispute Certification Notice, along with additional issues raised by the parties.
3. Request for Expedited Hearing, along with Mr. Zhou’s affidavit.
4. Employer’s Opposition to the Request to a Decision on the Record, along with
attachments.
5. Order Denying Employee’s Request for a Decision on the Record.
6. Motion to Dismiss.
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 December 10,
2018.
Name Certified Fax Email Service sent to:
Mail
Qiao Zhou, X manhattanlaw888@gmail.com
Self-Represented
Employee
Michael Gatlin, theda@bellsouth.net
Employer’s Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
4
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: “Expedited Hearing 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
concerning 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.
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082