Willis, Earl D. v. Express Towing , 2016 TN WC 304 ( 2016 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
EARL D. WILLIS, ) Docket No. 30458-2016
Employee, )
v. ) State File No. 2016-06-0702
)
EXPRESS TOWING, ) Judge Joshua Davis Baker
Uninsured Employer. )
EXPEDITED HEARING ORDER FOR TEMPORARY DISABILITY
AND MEDICAL BENEFITS
This claim came before the Court on November 30, 2016, on the Request for
Expedited Hearing filed by Express Towing pursuant to Tennessee Code Annotated
section 50-6-239 (2015). The present focus of this case is whether Express Towing was
required to provide workers’ compensation insurance on the date of Mr. Willis’ work
injury based upon its employment of five or more persons. For the reasons set forth
below, the Court holds Express Towing employed five or more persons and was,
therefore, required to provide workers’ compensation insurance for Mr. Willis.
Claim History
July 19, 2016 Evidentiary Hearing and Appeal
This is the second expedited hearing on this claim. The Court convened the first
on July 19, 2016, to consider Mr. Willis’ request for temporary disability and medical
benefits. At the hearing, Mr. Willis testified Express Towing had employed him as a
tow-truck driver for three weeks at the time of his injury and paid him an average of
$750.00 per week. On March 18, 2016, at approximately one o’clock in the morning,
Mr. Willis received a call from Express Towing’s dispatcher to retrieve a disabled
vehicle. After completing his work, he returned home in Express Towing’s tow truck,
which he routinely kept at his residence when he was on call. While getting out of the
truck, Mr. Willis’ left foot caught on the truck’s step and, as he fell to the ground, his foot
and leg twisted and broke his ankle in two places.
In addition to testimony concerning the accident, Mr. Willis also testified that
Express Towing employed more than five people at the time of his injury. Express
Towing did not appear at the hearing and was not represented by counsel at that time.
After the expedited hearing concluded, the Court learned for the first time that
representatives of Express Towing were waiting in the lobby but did not come to the
hearing room.
On August 9, 2016, the Court entered an interlocutory order requiring Express
Towing to provide Mr. Willis temporary disability and medical benefits. Express Towing
then hired counsel, who appealed the interlocutory order to the Workers’ Compensation
Appeals Board. After filing the appeal, Express Towing filed a motion to amend the
expedited hearing order with this Court seeking various forms of relief. The Court Clerk
forwarded the Motion to the Appeals Board who remanded the case to this Court for
consideration of the Motion.
After the Appeals Board remanded the case, this Court denied Express Towing’s
motion to amend the previous order. However, this Court stayed enforcement of the
initial expedited hearing order after Express Towing filed a new request for expedited
hearing to present evidence on the number of workers it employed at the time of Mr.
Willis’ accident.
November 30, 2016 Evidentiary Hearing
The question of whether Express Towing was required to provide workers’
compensation insurance was the only substantive legal issue to be determined at the
hearing. Regarding that issue, the Court heard testimony from seven people associated
with Express Towing, its operation, and its business locations.
Craig Allen Mann, proprietor of Express Towing, testified that he and one
employee, James Mullins, drive two tow trucks for Express Towing. He said he operates
Express Towing out of his home in Gallatin, where he has a shop. Mr. Mann also
testified that Michael Copeland rents the premises located at 625 Cornelia Court in
Nashville and operates two tow trucks in the name of Express Towing from that location.
In return for using the Express Towing business license and name, Mr. Copeland pays
Mr. Mann thirty percent of his income from the Express Towing operation in Nashville.
Mr. Mann said he doesn’t “get into what [Mr. Copeland] does as far as around the shop
and who he has do things for him.” Mr. Mann acknowledged he signed an affidavit
containing the following statement, “Mike Copeland paid Earl Willis, his wife—Ann
Copeland—who keeps books for him, and himself.”
Mr. Copeland testified that he does not own a company but does own two tow
trucks that he leases to Mr. Mann, who provides insurance and a business license for the
tow trucks’ operation. He testified that he does not have any employees currently but
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acknowledged Mr. Willis was an employee at the time of his injury. Mr. Copeland
admitted that he pays his girlfriend, Ann Taubert, for working at the Nashville towing lot.
According to his testimony, there are two offices and two phone lines. One office area
and phone line is used for his personal business while the other office area and phone line
is used for Express Towing’s business. When asked who sits in the Express Towing
office, Mr. Copeland responded, “Jarrell will sit in there sometimes at the desk.” When
asked if the phone for Express Towing was in that office, Mr. Copeland answered
affirmatively.
Mr. Mullins testified that he is employed by Express Towing to drive a tow truck
and “to take care of everything in Nashville.” He testified that he brings vehicles to the
Nashville lot and sometimes answers the phone if no one else is available to answer it.
When he does have to answer the phone, he testified that “whichever line [he]
answer[s],” he calls Mr. Mann because “everything is his.” He finds out from Mr. Mann
if he “need[s] to run the call, or [if it is] something that needs to be done by somebody
else.”
Steven Allbright testified that he rode in the tow truck with Mr. Willis on a few
occasions to ensure Mr. Willis was capable of performing the job. When asked who had
requested he ride with Mr. Willis, Mr. Allbright responded that he could not remember.
He then, however, stated that he rides along sometimes as a favor “when Allen gets a new
driver or something and he’s not sure [about the driver’s capability].” He testified that he
does not receive any pay when he rides with a driver.
Irby Trotter testified that he has an arrangement with Mr. Mann to perform
maintenance occasionally on vehicles at the Nashville lot in exchange for permission to
operate an auto-mechanic business on the premises.
Ronnie Welker testified that he lives on the lot in Nashville in Mr. Copeland’s bus
and performs the occasional odd job to maintain the property. Mr. Welker testified he
also assists Mr. Trotter with vehicle maintenance.
Michael Jarrell testified that he lives on the Nashville lot and believes that Mr.
Mann owns the towing lot. When asked about his “payment arrangement with Mr.
Mann,” Mr. Jarrell responded that he answers the phone, releases impounded cars and
watches the property. He testified that he has lived on the property without paying rent
for at least a year. When asked if living there rent-free was contingent upon working for
Express Towing, Mr. Jarrell responded, “No, they’re just being good to me.”
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Findings of Fact and Conclusions of Law
The only issue to be determined at this expedited hearing is whether Express
Towing is an employer under the Workers’ Compensation Law. Mr. Willis bears the
burden of proving Express Towing qualified as an employer, thereby triggering its
obligation to provide workers’ compensation insurance. See Winchester v. Seay, 219
Tenn. 321, 409 S.W.2d. 378, 381 (Tenn. 1966); King v. Buckeye Cotton Oil Co., 296
S.W.2d 3, 7 (Tenn. 1927). As explained below, the Court finds Express Towing is an
employer under the Workers’ Compensation Law and was, therefore, required to provide
workers’ compensation insurance coverage for Mr. Willis.
I. The Sumner and Davidson County towing lots are one business.
In resolving the disputed issue, the Court first addresses the business relationship
between Mr. Copeland and Express Towing. The Court finds the two operations are the
same business. Although Mr. Copeland owns the two tow trucks used by the Nashville
operation, he cannot use his trucks to conduct business without using the business license
and insurance provided by Express Towing. Indeed, the Metropolitan Government of
Nashville and Davidson County, Tennessee Code of Ordinances prohibits operating a
wrecker service without “obtaining and keeping in force a license from the commission
to operate a wrecker service.” Metro Gov’t of Nashville and Davidson County, Tenn.
Code of Ordinances § 6.80.110.
In his testimony, when asked about his business, Mr. Copeland responded, “I don’t
have a company.” The Court agrees. The business in operation at the Nashville location
belongs to Mr. Mann, the owner of Express Towing. Based on testimony and affidavits
introduced at the hearing, Mr. Mann makes decisions affecting the Nashville location,
such as asking for supervision of a new driver, deciding who responds to calls, and in
some cases, deciding who uses the property. Mr. Mullins testified that he calls Mr. Mann
for direction if he fields a call at the Nashville lot, no matter which line he might answer,
because “everything is [Mann’s].” Mr. Trotter testified that he and Mr. Mann reached the
arrangement to operate his business rent-free on the Nashville lot in exchange for
providing mechanic services to Express Towing. Mike Jarrell, who resides on the lot,
testified that he believes Mr. Mann owns the Nashville lot. In his affidavit, Mr. Mann
referred to the Nashville location as “my lot.”
II. Express Towing employs five or more persons
Having found that the Sumner and Davidson County operations of Express
Towing constitute one business, the Court must now determine whether the business
meets the definition of an employer under the Workers’ Compensation Law and,
therefore, was required to provide workers’ compensation insurance coverage. Under the
Workers’ Compensation Law, the term “employer,” defined in section 50-6-102(13),
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“includes any individual, firm, association or corporation . . . using the services of not
less than five (5) persons for pay.” Unless there are five or more “persons [who] are
regularly employed,” the Workers’ Compensation Law will not apply. Tenn. Code Ann.
§ 50-6-106(5). “Payment may be found in anything of value, which may or may not be
wages or a salary.” Garner v. Reed, 856 S.W.2d 698, 701 (Tenn. 1993). On “the first
day that five or more persons, who may be classified as regular employees under the act,
work for an employer, coverage attaches and may not be withdrawn in subsequent days
solely by the device of reducing the work force to four or less.” Whitehead v. Watkins,
741 S.W.2d 327, 328 (Tenn. 1987)(quoting Ganus v. Asher, 571 S.W.2d 756, 759 (Tenn.
1978)). Tennessee Code Annotated section 50-6-102(A) (2015) defines “employee” to
include “every person . . . in the service of an employer . . . under any contract of hire or
apprenticeship, written or implied.” The Court finds that Express Towing had six
employees.
It is undisputed that Mr. Willis was an employee of Express Towing at the time of
his injury. In addition to Mr. Willis, the Court also finds that Mr. Mann, Mr. Mullins and
Mr. Copeland were also employees. Mr. Mann, the business owner, testified he receives
“a percentage of the proceeds” from the operation of Express Towing and drives a tow
truck regularly. Mr. Mullins testified he works for Express Towing, and Mr. Mann
corroborated his testimony. Mr. Copeland drives a tow truck for Express Towing and
also receives a percentage of the money made for each call.
Ms. Taubert was also an employee of Express Towing. While Mr. Mann provided
little detail about the days and hours Ms. Taubert works, he admitted in his affidavit that
Mr. Copeland paid Ms. Taubert to “keep books” and perform office duties at the
Nashville location. Further, Mr. Copeland acknowledged in his testimony that he gave
Ms. Taubert money in exchange for helping him with the towing business. While Mr.
Copeland attempted to minimalize Ms. Taubert’s involvement, the Court finds she is
regularly employed based upon Mr. Mann’s affidavit.
Mr. Jarrell was also an employee of Express Towing. Although he was not paid
money for his service, his “arrangement” was to answer phones, release impounded cars,
and watch the property in return for living on the lot rent-free. Further, the Court finds
that Mr. Jarrell was regularly employed to perform duties that furthered the business of
Express Towing. Mr. Jarrell regularly answered the phone and manned the Express
Towing office while living on the lot. In this Court’s view, Mr. Jarrell’s rent-free living
arrangement served as compensation for his work at Express Towing.
Accordingly, the Court finds that Express Towing had six employees including
Mr. Willis at the time of his injury. Because it had six employees, Express Towing meets
the definition of employer and was required to provide those employees workers’
compensation insurance coverage.
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IT IS, THEREFORE, ORDERED as follows:
1. The Court orders the previous order of August 9, 2016, be enforced.
2. This claim is set for a scheduling hearing on February 6, 2017, at 9:30 a.m.
(CDT). You must call 615-741-2113 or toll free at 855-874-0474 to participate in
the Initial Hearing. Failure to participate in the hearing may result in
determination of issues without your input.
3. 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)
(2015). 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 may result in a penalty assessment for non-compliance.
4. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
253-1471.
ENTERED THIS THE 15TH DAY OF DECEMBER, 2016.
________________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
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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
$75.000. 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 shall 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.
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
five 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 five business days of the filing of the appellant’s
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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.
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APPENDIX
Exhibits:
1. Affidavit of Craig Mann
2. Affidavit of Irby Trotter
3. Affidavit of James Mullins
4. Affidavit of Steve Albright
Technical record:1
1. REH filed September 26, 2016
2. Order Granting Stay
3. Expedited Hearing Order filed August 9, 2016
4. Express Towing’s Prehearing Brief
5. Express Towing’s Witness and Exhibit List
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The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the 15th day of December,
2016.
Name Certified Via Via Address
Mail Fax Email
Thomas Lehman X eric@lehmansandifar.com
Kitty Boyte X kboyte@constangy.com
_______________________________________
Penny Shrum, Court Clerk
Wc.courtclerk@tn.gov
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