Ice, Damione v. Dion Dave and Anita Dave (Neita Reel-Dave), d/b/a/ D&N Transportation, Inc. and/or DNT Transportation , 2017 TN WC 57 ( 2017 )

TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
DAMIONE ICE, )
Employee, ) Docket No.: 2016-01-0366
v. )
DION DAVE AND ANITA DAVE ) State File No.: 57572-2016
(NETIA REEL-DAVE), D/B/A D & N )
TRANSPORTATION, INC. AND/OR ) Judge Thomas Wyatt
DNT TRANSPORT, )
Uninsured Employers. )
EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
DISABILITY BENEFITS (DECISION ON THE RECORD)
This matter came before the undersigned Workers' Compensation Judge on
March 19, 2017, upon a Request for Expedited Hearing (REH) for a decision on the
record filed by the employee, Damione Ice. Mr. Ice presents several issues for decision,
including: (1) which of two entities employed him on the date of alleged injury; (2)
whether he was an employee or independent contractor on the date of alleged injury; (3)
whether the person and/or entity for which he worked on the date of injury regularly
employed five or more employees; and (4) whether he is entitled to recover from the
Uninsured Employers Fund. For the reasons set forth below, the Court finds Mr. Ice is
entitled to the requested benefits from the entity found to be his employer, and further is
eligible for payments from the Uninsured Employer's Fund.
History of Claim
Mr. Ice is a forty-four-year-old resident of Chattanooga, Hamilton County,
Tennessee who suffered second-degree bums to his right hand and left thumb when
scalded by hot liquid while removing the radiator cap of an overheated truck. The
incident occurred April 28, 2016, in Graniteville, South Carolina and resulted in Mr. Ice
undergoing emergent skin-graft surgery at Doctors Hospital in Augusta, Georgia the next
day.
1
In his affidavit filed with the REH, Mr. Ice alleged that he was an employee of
Dion Dave and Anita Dave, ''who had a business they operated under the name of D & N
Transportation, Inc." (D & N.) Mr. Ice also submitted paystubs that documented he
received checks drawn on the account of D & N in payment for loads he delivered during
the two weeks immediately preceding the date of his injury.
While neither Dian Dave norD & N 1 responded to Mr. Ices claim Netia Reel-
Dave, whom Mr. Ice identified as "Anita Dave filed a responsive affidavit. 2 In the
affidavit, Ms. Reel-Dave stated that she operates DNT Transport (DNT), a sole
proprietorship. She stated that she contracted with Mr. Ice "in the first part of [2016]" to
drive a truck for her. Counsel for Ms. Reel-Dave contends Mr. Ice was driving for DNT
on the date of injury.
The record establishes that, on and before the date of Mr. Ice's injury, substantial
connections existed between Ms. Reel-Dave and her sole proprietorship, DNT, and Mr.
Dave and his defunct corporation, D & N. While Ms. Reel-Dave stated in her affidavit
that Mr. Dave drove for her on an "emergency, as-needed basis," the record contains a
July 26, 2015 lease agreement in which D & N contracted to haul freight for DNT.
Furthermore, evidence in the record indicates Ms. Reel-Dave and Mr. Dave operated
DNT and D & N in a closer alignment with each other than would be expected if the only
arrangement between the parties were a lease agreement. A sworn statement of Kenneth
L. Ervin indicates he drove forD & N from 2010 to 2014, and then for DNT from
September 2015 until June 2016. Mr. Ervin supplied pay records documenting that,
during the initial part of his employment by DNT, he received pay for delivering loads
for DNT by checks drawn on the account of D & N. Y arshaunjania Threatt testified by
sworn statement that both "Deon and Nita Dave" controlled her work and scheduled her
hours when she drove for DNT.
The record also contains a February 27, 2016 check payable to the Tennessee
Department of Labor and Workforce Development drawn on the account of D & N
Transportation, Inc. Netia Reel signed the check on behalf of D & N. Also, in her
affidavit, Ms. Reel-Dave claimed that Mr. Ice worked for DNT on and before the date of
injury. 3 However, the check stubs submitted by Mr. Ice indicateD & N paid him for the
loads he delivered in the two weeks preceding the date of injury.
1
The record includes a document from the Tennessee Secretary of State that lists Dion Dave as the registered agent
for service of process of D & N Transportation, Inc. The same document also indicates that the State of Tennessee
revoked D & N Transportation, Inc.'s charter and dissolved the corporation on January 9, 2016. (Ex. 15.)
2
Counsel for Ms. Reel-Dave informed the Court that Netia Reel-Dave is the same person as the "Anita Dave"
referred to by Mr. Ice in the papers he filed in this claim.
3
Ms. Reel-Dave's affidavit indicates that Mr. Ice drove for DNT "in the first part of[2016]."
2
The record contains no evidence that the putative employers carried workers'
compensation coverage on the date of Mr. Ice's injury. In fact, the Amended Expedited
Request for Investigation Report prepared by the Bureau confirmed that the named
employers did not have workers' compensation policies covering their drivers on the date
of Mr. Ice's injury. Ms. Reel-Dave claimed in her affidavit that she was not required to
obtain workers' compensation coverage because (1) she used only independent
contractors to drive her trucks, and (2) she never contracted with more than two to three
drivers at any given time.
Neither of the named employers paid workers' compensation benefits to Mr. Ice.
Because of this fact, he filed a Petition for Benefit Determination seeking payment of
medical bills totaling $39,353.22 for treatment of his bums and temporary disability
benefits from April 28 to July 27, 2016. When mediation failed to resolve the parties'
disputes, the mediator issued a Dispute Certification Notice.
Mr. Ice filed an REH seeking a decision on the record without an evidentiary
hearing. Neither of the putative employers requested an evidentiary hearing. Upon
reviewing the record, the Court found it needed no additional information to determine
whether Mr. Ice is likely to prevail at a hearing on the merits regarding the issues raised
in his request. The Court provided the parties an opportunity to object to the evidence
submitted for its consideration; none of the parties did so. Accordingly, the Court will
decide Mr. Ice's REH on the record. See Court of Workers' Comp. Claims Prac. & Proc.
7.02 (March, 2017).
Findings of Fact and Conclusions of Law
Standard applied
Mr. Ice bears the burden of proof on all elements of his workers' compensation
claim. Tenn. Code Ann. § 50-6-239(c)(6) (2016); see also Buchanan v. Carlex Glass
Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Sept. 29, 2015). However, he
need not prove every element of his claim by a preponderance of the evidence in order to
obtain relief at an expedited hearing. McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7- 9 (Mar. 27, 2015). At an expedited hearing,
Mr. Ice has the burden to come forward with sufficient evidence from which this Court
can determine he is likely to prevail at a hearing on the merits. /d.
Who Is Mr. Ice's Employer?
The Court first addresses which of the named employers employed Mr. Ice on the
date of injury. Pertinent to this issue, the Court notes that neither Mr. Dave nor any
person on behalf of D & N denied that Mr. Ice drove for D & N on the date of injury.
The fact that D & N paid him for the loads he delivered in the two weeks immediately
3
preceding the injury corroborates the allegation in Mr. Ice's affidavit that he was driving
forD & N when injured. The Court questions the averment in Ms. Reel-Dave's affidavit
that Mr. Ice drove only for DNT on the date of injury. The record establishes a number
of occasions in which Ms. Reel-Dave acted on behalf ofD & Nand, in fact, the evidence
makes it difficult to separate one trucking enterprise from the other. Accordingly, the
Court holds Mr. Ice will likely prevail at a hearing on the merits in proving that he drove
for D & N on the date of injury.
Was Mr. Ice an Independent Contractor on the Date ofInjury?
The Court next considers whether Mr. Ice was an independent contractor on the
date of injury. Here, none of the named employers came forward with evidence that Mr.
Ice signed a lease agreement under which he delivered loads for D & N. In the absence
of a lease agreement, the Court accredits Mr. Ice's testimony that he was an employee of
D & N on the date of injury.
In further analyzing the employee-independent contractor issue, the Court
considers Tennessee Code Annotated section 50-6-102(12)(D)(i) (2016), which lists the
following factors for consideration in determining whether a person working for pay is an
employee or independent contractor:
1. the right to control the conduct of the work;
2. the right to terminate;
3. the method of payment;
4. the freedom to select and hire helpers;
5. the furnishing of tools and equipment;
6. self-scheduling of working hours; and
7. the freedom to offer services to other entities.
While none of the above factors is necessarily determinative of whether an employment
or an independent contractor relationship exists, the Supreme Court has held that a
party's right to control another party's work is a factor that generally indicates the
existence of an employer-employee relationship. Galloway v. Memphis Drum Serv., 822
S.W.2d 584 (Tenn. 1991).
The record here does not refute the statement in Mr. Ice's affidavit that he was an
employee ofD & Non the date of injury. The Court infers from Mr. Ice's description of
his employment relationship with D & N that the latter provided him the truck he was
driving and the load he was delivering on the date of injury. In the context of the
trucking industry, the Court finds the fact that D & N provided Mr. Ice a truck to drive
and a load to deliver indicates D & N sufficiently controlled Mr. Ice's work to justify a
finding that Mr. Ice was an employee ofD & Nat the time he was injured. In view of the
4
above, the Court holds that Mr. Ice will likely prevail at a hearing on the merits in
establishing that he was an employee ofD & Non the date of injury.
Can D & N Avoid Liability Because It Employed Fewer than Five Employees on the Date
ofInjury?
The Court next addresses whether the law bars Mr. Ice from recovering workers'
compensation benefits because D & N employed fewer than five employees on the date
of injury. For purposes of determining the applicability of the Workers' Compensation
Law to a given employer, Tennessee Code Annotated section 50-6-102(13) (2016)
defines a covered employer as "any individual, association or corporation ... using the
services of not less than five (5) persons for pay." A thorough review of the record
indicates that D & N did not claim it employed fewer than five employees on the date of
injury. In fact, the record is silent as to the number of drivers D & N actually did employ
on the date in question. 4
In considering whether this lack of evidence precludes Mr. Ice from recovery, the
Court notes the Supreme Court in Gamus v. Asher, 561 S.W.2d 756, 759 (Tenn. 1978),
held that coverage under the Workers' Compensation Law attaches to an employer on the
first day the employer has five or more persons who may be classified as regular
employees. The Supreme Court went on to hold that, once coverage attaches, the
employer may not negate its liability to pay workers' compensation benefits by simply
reducing its workforce below five regular employees. Instead, the employer must comply
with the administrative procedures to withdraw from coverage before it can avoid its
obligation to pay workers' compensation benefits by employing fewer than five
employees. See also Whitehead v. Watkins, 741 S.W.2d 327, 329 (Tenn. 1987).
Here, the record indicates D & N hired more than five regular drivers from 2009 to
2012. The record does not contain evidence that D & N ever thereafter administratively
established its right to avoid workers' compensation coverage due to the employment of
fewer than five drivers. Accordingly, the Court holds that, at a hearing on the merits, Mr.
Ice will likely prevail in establishing that D & N cannot avoid paying him workers'
compensation benefits because it employed fewer than five employees on the date of
InJUry.
Did Mr. Ice Establish His Entitlement to Medical and Temporary Disability Benefits?
Under Tennessee law, an alleged injury is compensable only if it arises primarily
out of and in the course and scope of employment. Tenn. Code Ann. § 50-6-102(14)
4
The Court does not consider Ms. Reel-Dave's claim that DNT never used more than two drivers at any given time
pertinent to the determination of the number of employees employed by D & N.
5
(20 16). Further, the employee must establish the work-relatedness of his or her injury to
a reasonable degree of medical certainty. Tenn. Code Ann.§ 50-6-102(14)(C) (2016).
The named employers did not challenge Mr. Ice's allegation that he suffered bums
while removing the radiator cap on an overheated truck on April28, 2016. In support of
his claim, Mr. Ice submitted records from Doctors Hospital in Augusta, Georgia that
document his treatment on April 28 and 29, 2016, in the hospital's bum center. (Ex. 3.)
The records document that, on several occasions during the treatment process, Mr. Ice
gave a history of suffering bums when exposed to hot liquid while removing the radiator
cap on a truck. Id. at 9, 16, 21, 26. The records further document that the treating
physicians at Doctors Hospital diagnosed Mr. Ice with second-degree bums to the fingers
on his right hand, the top of his right hand, and his left thumb. Id. at 6, 7, 9, 14, 16, 22,
26, 31.
Under the law applicable prior to the 2013 reforms to the Workers' Compensation
Law, an employee was not required to prove an obvious injury. However, in Willis v. All
Staff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *27 (Nov. 9, 2015), our Appeals
Board held:
Prior to the 2013 Workers' Compensation Reform Act, the law was clear
that a workers' compensation claimant did not have to establish by expert
medical testimony a causal relationship between the injury and the
claimant's employment in "the most obvious, simple and routine cases."
Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991). In
light of the new statutory language found in sections 50-6-102(13)(B) and
50-6-102(13)(C), it is unclear whether expert medical testimony is now
required in cases deemed to be "obvious, simple and routine."
Although the issue of the necessity of medical evidence to establish the causation
of obvious injuries remains undecided, the Court is satisfied that the evidence in this case
establishes Mr. Ice did sustain the bums he described in his affidavit and that the bums
occurred in the manner he claimed. While the Doctors Hospital records do not contain an
express opinion from a physician that Mr. Ice suffered his bums when exposed to hot
liquid while removing a radiator cap, the records do document that Mr. Ice consistently
gave that history to several of the providers who treated his bums. Furthermore, the
records irrefutably establish Mr. Ice underwent skin-graft surgery on April 29, 2016, for
second-degree bums to his right hand and left thumb. Accordingly, the Court holds that,
at a hearing on the merits, Mr. Ice likely will prevail in establishing that he suffered his
bums while removing a radiator cap on the truck he was driving forD & N.
The Court likewise holds that, at a hearing on the merits, Mr. Ice likely will
prevail in establishing that his compensable bums necessitated the treatment he received
at Doctors Hospital. Accordingly, the Court holds Mr. Ice is entitled to medical benefits,
6
including payment for the bills referenced above. D & N shall pay the bills in question
pursuant to the records introduced into evidence here.
Regarding Mr. Ice's claim for temporary disability benefits, the Court notes the
record establishes that the treating providers at Doctors Hospital totally disabled him
from working between April 29, 2016, and May 31, 2016. (Ex. 2 at 8.) The record is
silent as to Mr. Ice's capacity to work after May 31, 2016. Accordingly, the Court holds
Mr. Ice is entitled to temporary total disability benefits from April 29, 2016, to May 31,
20 16, a period of four weeks, five days.
The record provides sparse information regarding Mr. Ice's earnings history while
employed by D & N. In his affidavit, he claims he worked twelve weeks for D & N
before the date of injury; however, the record only documents the amounts D & N paid
him during the two weeks immediately preceding the date of injury. The available
records indicate Mr. Ice earned an average weekly wage of $675.00, thus the Court holds
he is entitled to temporary total disability benefits for four weeks, five days, at the
compensation rate of$450.00 per week for a total of$2,121.40.
Is Mr. Ice Entitled to Benefits from the Uninsured Employers Fund?
Although this Court holds D & N must provide Mr. Ice medical and temporary
benefits, it is unclear whether payment will be forthcoming, as D & N did not have
workers' compensation insurance at the time of the accident. Under Tennessee Code
Annotated section 50-6-80 1(d) (20 16), the Bureau has discretion to pay limited
temporary disability and medical benefits to employees who have established medical
causation of their injury and who meet the following criteria:
1. The employee worked for an employer who failed to carry workers' compensation
msurance;
2. The employee suffered an injury primarily arising in the course and scope of
employment after July 1, 2015;
3. The employee was a Tennessee resident on the date of the injury;
4. The employee provided notice to the Bureau of the injury and the employer's
failure to provide workers' compensation insurance no more than sixty days after
the injury occurred; and
5. The employee secured a judgment for workers' compensation benefits against the
employer for the injury in question.
Here, the evidence establishes the first element required for recovery, namely, D
& N was an uninsured employer. Next, Mr. Ice established by the standard applicable at
an Expedited Hearing that he suffered an injury arising primarily out of and in the scope
of his employment with D & N on April 28, 2016. As to the residency requirement of
section 50-6-802(d), Mr. Ice resided in Tennessee at the time of his injury. As to the
7
requirement that Mr. Ice give the Bureau notice of his injury and his employer's
uninsured status, the Court notes that the record contains the Amended Expedited
Request for Investigation Report of the Bureau's Compliance Specialist. This report
indicates that, on May 10, 2016, twelve days after the date of injury, the specialist
received an RFI (Request for Investigation) of D & N arising out of Mr. Ice's injury.
Accordingly, Mr. Ice complied with the applicable notice provision.
The Court, therefore, holds Mr. Ice meets all the criteria to qualify as an eligible
employee under Tennessee Code Annotated section 50-6-801 et seq.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Mr. Ice's injuries, including services already received, shall
be paid, and the treating physician at Doctors Hospital, Augusta, Georgia, shall
serve as the authorized treating physician.
2. Mr. Ice is entitled to receive temporary disability benefits from April29, 2016,
until May 31,2016, in the amount of$2,121.40.
3. Mr. Ice is eligible to receive temporary disability and medical benefits from the
Uninsured Employer's Fund pursuant to Tennessee Code Annotated section
50-6-801 et seq. The clerk shall forward a copy of this order to the
Administrator for consideration of payment.
4. This matter is set for a scheduling hearing on June 5, 2017, at 10:00 a.m.
Eastern Time. The parties shall call 855-747-1721 (toll-free) or 615-741-3061
at the scheduled time to participate in the conference. A party's failure to call
in at the scheduled time will result in the Court making decisions without the
absent party's participation.
5. 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) (2016). 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.
For questions regarding compliance, please contact the Workers'
Compensation Compliance Unit via email WCCompliance.Program@tn.gov or
by calling (615) 253-1471 or (615) 532-1309.
8
ENTERED this the 22nd day of March, 2017.
Workers' Compensation Judge
Appendix
Technical Record:
1. PBD filed July 29, 2016;
2. DCN filed September 13, 2016;
3. REH, filed January 4, 2017;
4. Docketing Notice for On-The-Record Determination, filed March 10, 2017;
and
5. Response of Uninsured Employer, filed March 9, 2017.
Exhibits:
1. Affidavit of Damione Ice;
2. Records of Doctors Hospital, Augusta, Georgia provided to Mr. Ice;
3. Records of Doctors Hospital, Augusta, Georgia;
4. Billing Records of Doctors Hospital, Augusta, Georgia;
5. Billing Records of Anesthesia Consultants of Augusta, LLC;
6. Records documenting payments from D & N Transportation, Inc. to Mr. Ice;
7. Sworn Worker Information Form of Kenneth L. Ervin;
8. Sworn Worker Information Form ofYarshaunjania Threatt;
9. Employer Questionnaire completed by Netia Reel-Dave;
10. Affidavit ofNetia Reel-Dave;
11. Amended Expedited Request for Investigation Report filed by the Tennessee
Bureau of Workers' Compensation;
12. 2009-2013 Payroll Records ofD & N Transportation, Inc.;
13. Lease Agreement between D & N Transportation, Inc. and Netia Reel-Dave,
d/b/a DNT Transport;
14. Tennessee Secretary of State filing information on D & N Transportation, Inc.;
15. D & N Transportation, Inc. check signed by Netia Reel-Dave; and
16. Bill ofLading.
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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 22nd day
ofMarch, 2017.
Name Certified Fax Email Service sent to:
Mail
Mike Wagner, X maw@wagnerinjurv .com
Attorney
Art Grisham, X art@grishamattorney. com
Attorney
wc.courtclerk@tn.gov
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