Murillo, Said Omar Jemenez v. Leonard Sams and Associates , 2019 TN WC 108 ( 2019 )

FILED
Jul 17, 2019
03:47 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
SAID OMAR JEMENEZ ) Docket Nos. 2018-03-1082A
MURILLO, ) 2018-03-1082B
v. )
LEONARD SAMS AND ) State File Nos. 9706-2016
ASSOCIATES, ) 81428-2018
and )
ALEXANDER CALIX GARCIA ) Judge Pamela B. Johnson
d/b/a GARCIA REMODELING. )
EXPEDITED HEARING ORDER DENYING BENEFITS
This case came before the Court for an Expedited Hearing on June 26, 2019. 1 Mr.
Murillo requested payment of medical bills he incurred after he fell from a platform,
sustaining significant injuries. He also requested temporary disability benefits. Mr.
Sams and Mr. Garcia, who did not carry workers' compensation insurance at the time of
the incident, asserted Mr. Murillo was an independent contractor and not one of their
employees. For the reasons below, the Court holds Mr. Murillo failed to demonstrate that
he was likely to prevail at a hearing on the merits that he is entitled to the requested
benefits.
History of Claim
On July 30, 2018, Mr. Murillo, a construction laborer, fell thirty to forty feet from
a platform while hanging siding. Juan Carlos Zuniga Chau, a co-laborer and eyewitness,
drove Mr. Murillo from the scene to a nearby church where an ambulance was called.
The ambulance initially transported Mr. Murillo to LeConte Medical Center. However,
due to the severity of his injuries, he was then taken by helicopter to the University of
Tennessee Medical Center (UTMC), where he remained hospitalized for three days. At
UTMC, he was diagnosed with multiple rib fractures, a right pulmonary contusion, multi-
level thoracic spine fractures, a right arm fracture, a right pneumothorax, lacerations to
1
Two certified court interpreters provided services at the Expedited Hearing for Mr. Murillo, Mr. Garcia,
Mr. Garcia's wife, and co-laborer and eyewitness, Juan Carlos Zuniga Chau.
his scalp and right elbow, and bruising. Following the incident, Mr. Murillo incurred
medical bills and worked only sporadically.
Mr. Murillo filed two Petitions for Benefit Determination against Mr. Sams and
Mr. Garcia claiming one or both were responsible for payment of workers' compensation
benefits. Neither Mr. Sams nor Mr. Garcia had workers' compensation insurance on the
date of the incident. Because Mr. Murillo's claims against Mr. Sams and Mr. Garcia
involved common questions of law and fact, the Court consolidated them under
Tennessee Rules of Civil Procedure 42.01.
Mr. Murillo testified regarding his employment relationship with Mr. Sams and
Mr. Garcia. He stated that Daniel Pauada contacted him and asked him to work for Mr.
Garcia on a home for which Mr. Sams held the permit. Regarding payment, Mr. Murillo
testified that Mr. Garcia paid Dario Antunez, who paid Daniel, who then paid Mr.
2
Murillo in cash. He indicated Daniel paid him $16 per hour and later paid him $300
following the incident. Mr. Murillo believed Mr. Garcia was a supervisor because Mr.
Garcia once told Mr. Murillo and Juan Carlos that they were doing a good job when Mr.
Garcia visited the job site.
In contrast, both Mr. Sams and Mr. Garcia denied hiring Mr. Murillo. Although
Mr. Sams offered no testimony on his own behalf, Mr. Garcia testified he hired Dario to
install the siding. Mr. Garcia paid Dario a lump sum by check for the job, not at an
hourly rate. He specifically denied hiring or paying Mr. Murillo, stating Dario
subcontracted with Daniel and others to complete the job. He confirmed that Dario had
authority to hire others to perform the work. On cross-examination, Mr. Garcia admitted
he went to the jobsite and saw Mr. Murillo and Juan Carlos working, but he stated that
Mr. Murillo misunderstood when he said the work was good. 3
According to the Expedited Request for Investigation Report, Mr. Sams
acknowledged he subcontracted the siding job to Mr. Garcia. 4 Similarly, Mr. Murillo
confirmed he worked for Dario and Daniel, both of whom he believed worked for Mr.
Garcia. Mr. Murillo indicated he earned $16.00 per hour, paid weekly. Additionally, he
was scheduled to work from 8 a.m. until 6 p.m. and was provided the tools and
2
For ease of reference and with all due respect, the Court will refer to these individuals by their first
names only in order to use the names by which these individuals were known to the parties.
3
The parties offered no testimony indicating what the materials were, by whom the materials were
provided, by whom the materials were used, and for what job the materials were intended.
4
Mr. Sams objected to the introduction of the report on grounds of hearsay and authentication, and the
Court took the objection under advisement. The Court overrules the objection and finds the report
admissible under Tennessee Rules of Evidence 902(11) (20 18).
2
equipment to perform the work. Further, he did not control the conduct of the work, did
not have the right of termination, and could not hire helpers.
Findings of Fact and Conclusions of Law
To recover workers' compensation benefits, Mr. Murillo must show his injuries
arose primarily out of and in the course and scope of his employment with Mr. Sams or
Mr. Garcia. He must present sufficient evidence from which this Court might determine
he is likely to prevail at a hearing on the merits. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Camp. App. Bd. LEXIS 6, at *7 -8, 9 (Mar. 27, 20 15).
The Workers' Compensation Law requires any person or entity engaged in the
construction industry to carry workers' compensation insurance on themselves. Tenn.
Code Ann. § 50-6-902(a). These individuals or entities are called construction services
providers. Tenn. Code Ann. § 50-6-901(5). Construction services providers are required
to carry workers' compensation insurance regardless of whether the construction services
provider employs fewer than five employees. Tenn. Code Ann.§ 50-6-902(a).
Additionally, a general contractor, intermediate contractor, or subcontractor shall
be liable for compensation to any employee injured while in the employ of any of the
subcontractors of the general contractor, intermediate contractor, or subcontractor and
engaged upon the subject matter of the contract to the same extent as the immediate
employer. See Tenn. Code Ann. § 50-6-914(a). This applies in cases where the injury
occurred on, in, or about the premises on which the general contractor has undertaken to
execute work or that are otherwise under the general contractor's control or management.
Tenn. Code Ann. § 50-6-914(e). However, the injured employee must first present the
claim for compensation against the immediate employer. Tenn. Code Ann. § 50-6-
914(d). See Tenn. Code Ann. §50-6-914(a).
Therefore, to recover compensation from a general contractor, intermediate
contractor, or subcontractor, Mr. Murillo must first come forward with sufficient proof
that an employee-employment relationship existed. The Workers' Compensation Law
sets forth factors the Court must consider in determining whether an employment
relationship exists. The factors include the right to control the conduct of the work, the
right of termination, the method of payment, the freedom to select and hire helpers, the
furnishing of tools and equipment, self-scheduling of working hours, and the freedom to
offer services to other entities. Tenn. Code Ann.§ 50-6-102(12)(D)(i) (2018).
Because no single factor is determinative, the Court "must examine all relevant
factors and circumstances of the relationship." Peters v. Mitchell d/b/a A Clean
Connection, LLC, 2016 TN Wrk. Camp. App. Bd. LEXIS 7, at *8-9 (Feb. 8, 2016).
However, "the right to control the conduct of the work has been characterized as the most
3
significant in determining whether an injured worker is an employee or independent
contractor." !d. at *9 (emphasis added).
In this case, Mr. Murillo failed to show that Mr. Sams or Mr. Garcia: controlled
the conduct of the siding job, hired him or had the right to terminate him, supplied the
tools and equipment, or paid him. However, the limited record before the Court
suggested Mr. Murillo did not have the freedom to select and hire helpers or self-
schedule his working hours. Considering the record as a whole, the Court cannot find
that these factors are sufficient to show an employment relationship existed between Mr.
Murillo and Mr. Sams or Mr. Garcia. Thus, the Court cannot find that Murillo came
forward with sufficient evidence demonstrating that he is likely to prevail at a hearing on
the merits that he was Mr. Sams's or Mr. Garcia's employee.
The Court finds Mr. Murillo credible and does not question that he suffered
significant injuries from his fall. However, Mr. Murillo must come forward with more.
It is not enough that he showed he was seriously injured while working. He must
demonstrate that he was an employee when he was injured and for whom he was
employed. The limited evidence before the Court fails to show who controlled the work,
who had the right of termination, who had the freedom to select and hire helpers, who
furnished the tools and equipment, and who scheduled Mr. Murillo's hours. Similarly,
the Court is without sufficient information to determine whether the parties worked
together on a residential property or a commercial property. Finally, the Court cannot
determine the parties' status as general contractor, intermediate contractor, or
subcontractor based on the information available to the Court at this time. For these
reasons, and at this time, the Court cannot find that Mr. Murillo came forward with
sufficient evidence demonstrating he is likely to prevail at a hearing on the merits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Murillo's claims against Mr. Sams and Mr. Garcia for the requested benefits
are denied at this time.
2. This case is set for a Scheduling Hearing on October 31, 2019, at 9:30 a.m.
Eastern Time. The parties must call (toll-free) 855-543-5041 to participate in the
Scheduling Hearing. Failure to appear by telephone may result in a determination
of the issues without the party's participation. ~
ENTERED July 17,2019.
P~LA B. JOHNSON, JUDGE
Court of Workers' Compensation Claims
4
APPENDIX
Technical Record:
1. Petition for Benefit Determination, Docket No. 2018-03-1 082A
2. Petition for Benefit Determination, Docket No. 2018-03-1082B
3. Dispute Certification Notice, Docket No. 2018-03-1082B
4. Dispute Certification Notice, Docket No. 2018-03-1082A
5. Employee Notice of Filing - Medical Records of University of Tennessee
Medical Center
6. Show Cause Order, Docket No. 2018-03-1082B
7. Docketing Notice of Show Cause Hearing, Docket No. 2018-03-1 082B
8. Show Cause Order, Docket No. 2018-03-1082A
9. Docketing Notice of Show Cause Hearing, Docket No. 2018-03-1082A
10. Motion to Withdraw as Counsel
11. Affidavit of Attorney George Garrison
12. Order Setting Deadline to File Request for Hearing, Docket No. 2018-03-
1082B
13. Order Granting Motion to Withdraw as Counsel
14. Order Setting Deadline to File Request for Hearing, Docket No. 2018-03-
1082A
15. Request for Expedited Hearing, Docket No. 2018-03-1082B
16. Request for Expedited Hearing, Docket No. 2018-03-1082A (attachments
same as attachments to Docket No. 2018-03-1082B, therefore, not attached)
17. Docketing Notice of Expedited Hearing, Docket No. 2018-03-1082B
18. Order of Consolidation
19. Docketing Notice of Expedited Hearing, Docket No. 2018-03-1082A
20. Petition for Benefit Determination, Translated June 7, 2019
Exhibits:
1. Marked for Identification Only: Affidavit of Said Omar Jemenez Murillo
2. Marked for Identification Only: Affidavit of Juan Carlos
3. Marked for Identification Only: Handwritten Statement
4. Expedited Request for Investigation Report
5. Gatlinburg Police Department Incident Report
6. Medical Records ofUniversity of Tennessee Medical Center
7. Marked for Identification Only: Medical Expenses
8. Paycheck stubs
5
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on July
17, 2019.
Name Certified us Email Service sent to:
Mail Mail
Said Omar Jemenez X X 4158 Old Webb Creek Road
Murillo, Gatlinburg, TN 3773 8
Self-Represented
Litigant
Jedidah C. McKeehan, X jmckeehan@tcflattomeys.com
John D. Haines, jhaines@tcflattomeys.com
Leonard Sams'
Attorneys
Alexander Calix X X 8734 Gleason Drive
Garcia, Knoxville, TN 37923
Self-Represented
Litigant
RUM, Court Clerk
WC.CourtClerk@tn.gov
6
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
W\Yw .tn.gov/ lahor-w fd/wcorllp.sll!"n11
wc .courtclerk@tn.gov
1-800-332-2667
Docket#: - - - - -- - -- - -
State File #/YR: - - - - - - - -.
Employee
v.
Employer
Notice
Notice is given that --- - - - - - - - - - - - - - - - - -- - -- - - - - - - - -
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _ _ _ _ _ _ _ _ __
to the Workers' Compensation Appeals
---~-~-~~~~-~~--~~--
Board. [List the date(s) the order(s) was filed in the court clerk's office]
Judge________________________________________________
Statement of the Issues
Provide a short and plain statement ofthe issues on appeal or basis for relief on appeal :
Additional Information
Type of Case [Check the most appropriate item]
D Temporary disability benefits
D Medical benefits for current injury
D Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): _______________ At Hearing: DEmployer DEmployee
Address: __________________________________________________________________
Party's Phone :__________________ Email: _ _ _ _ _ _ _ _ _ _ _ _ _ ___
Attorney's Name: _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ _ _ BPR#: --------------
Attorney's Address: _ _ _ __ _ _ _ __ _ _ _ _ _ _ _ _ _ __ Phone :
Attorney's City, State & Zip code: _ _ _ __ _ _ _ _ _ _ __ _ _ _ __ _ _ __ __ _ __
Attorney's Email:, _ __ _ _ _ _ _ _ __ _ _ _ _ _ _ _ __ _ _ _ __ _ __ __ _ __
* Attach an additional sheet for each additional Appellant*
LB-1099 rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: _ _ _ _ _ _ _ _ _ __ SF#: _ _ _ _ _ _ _ _ __ DOl: _ _ _ _ __
Appellee(s)
Appellee (Opposing Party) ·.__ _ _ _ _ __ _ At Hearing: DEmployer DEmployee
Appellee's Address : _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Appellee's Phon e:,___ _ _ _ _ _ _ _ _ __ ___ Email :_ _ _ __ _ _ _ __ _ _ __
Attorney's Nam e:' - - - - - - - - - - - - - - - - - - - - - -- BPR#: _ _ _ _ _ _ __
Attorney's Address=--
: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone: _ _ _ _ _ _ __
Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - - --
Attorney's E m a i l = - : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
*Attach an additional sheet for each additional Appellee*
CERTIFICATE OF SERVICE
!,_ _ _ _ _ _ _ _ __ _ _ __ __, certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers' Compensation Appeals on this the day of , 20_
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-8
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-11 08 (REV 11115) 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-11 08 (REV 11/15) RDA 11082
,xpedited Hearin g Order Ri ght to A1 pea l:
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 ofthe 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.