Wright, Tracy v. Joshua Cooper d/b/a J&K Improvements , 2021 TN WC 160 ( 2021 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT COOKEVILLE
TRACY WRIGHT, ) Docket No. 2019-04-0270
Employee, )
v. ) State File No. 66044-2020
JOSHUA COOPER, d/b/a )
J&K IMPROVEMENTS, ) Judge Robert Durham
Uninsured Employer. )
EXPEDITED HEARING ORDER GRANTING BENEFITS
(Decision on the Record)
This case came before the Court for an expedited hearing. After the parties’
agreement to accept a decision on the record, the Court issued a Docketing Notice that
required responses by March 4. The issues are whether Mr. Wright provided sufficient
evidence to establish a compensation rate for entitlement to temporary total disability
benefits and whether Mr. Cooper’s wife, Kylie Cooper, is a partner in J&K
Improvements, and thus also liable to Mr. Wright. The Court holds that the evidence
supports an award of temporary disability at a compensation rate of $419.91, but only
from August 29 through October 8, 2020. Further, the proof does not establish Mts.
Cooper’s liability to Mr. Wright for workers’ compensation benefits.
History of Claim
The Court previously held an expedited hearing on January 19, 2021, to determine
whether Mr. Cooper is obligated to provide Mr. Wright medical and temporary disability
benefits for a work-related left-foot fracture. The evidence presented at that hearing, as
well as the Court’s findings, are incorporated by reference.
During that hearing, Mr. Cooper testified that as the sole proprietor of J&K
Improvements, Mrs. Cooper did not have any ownership. Mr. Wright did not object to
this representation or provide any evidence to the contrary. Further, the Uninsured
Employer Investigation Report did not identify Mrs. Cooper as Mr. Cooper’s partner in
J&K Improvements.
As for temporary disability benefits, Mr. Wright provided medical evidence
establishing his total disability from August 29 through October 8; that J&K paid him
$16.00 an hour, which was paid at the end of each project; and that he worked “almost
every day.” However, he did not provide any evidence regarding the actual days he
worked or the specific amounts J& K Improvements paid.
After the January 19 hearing, the Court held Mr. Wright established he is likely to
prove that he was Mr. Cooper’s employee when he was injured on August 28, 2020, thus
making Mr. Cooper liable for benefits. The Court also held that Mr. Wright is likely to
prove entitlement to payment of reasonable and necessary medical expenses causally
related to his fracture and entitlement to temporary total disability from August 29
through October 8. However, he did not provide sufficient evidence to determine his
compensation rate. Finally, the Court found that Mr. Wright is eligible to receive
benefits from the Uninsured Employer’s Fund under Tennessee Code Annotated section
50-6-801.
After receiving the Court’s order, Mr. Wright filed another Request for Expedited
Hearing. He attached a Tennessee Rules of Civil Procedure Rule 72 Statement in which
he asserted that when he was hired on May 18, 2020, he worked forty hours per week for
two weeks at $14.00 per hour, and at the end of May, Mr. Cooper raised his pay to
$16.00 per hour. The only additional evidence that Mr. Wright provided as to his actual
pay or the hours he worked while employed by Mr. Cooper was indirectly when he
calculated his “lost wages” from his injury through January based on a forty-hour
workweek.
As for Mrs. Cooper, Mr. Wright added her as an employer at the top of the
Request for Expedited Hearing and asserted in his Rule 72 Statement that Mr. Cooper
hired him for “his [sic] and his wife’s business, J&K Improvements.” He went on to say
that “the Coopers” agreed to pay him $16.00 per hour, and he made multiple references
to working for “the Coopers.”
Mr. Cooper did not provide any evidence in response to the request for expedited
hearing.
Findings of Fact and Conclusions of Law
Mr. Wright bears the burden of presenting sufficient evidence to show that he is
likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2020); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Tennessee Code Annotated section 50-6-207(1)(a) sets out that temporary total
disability benefits are based on two thirds of the injured employee’s average weekly
2
wage. The Court finds the undisputed evidence shows that Mr. Wright is likely to prove
he worked forty hours per week during his employment with Mr. Cooper. He worked
from May 18 through May 31 at $14.00 per hour and from June 1 until August 28 at
$16.00 per hour. Based on this finding, the Court calculates Mr. Wright’s average
weekly wage to be $629.86, and two-thirds of this amount leads to a compensation rate of
$419.91.
However, to receive temporary total disability benefits, Mr. Wright must also
show he is likely to prove: (1) a disability from working as the result of a compensable
injury; (2) a causal connection between the injury and the inability to work; and (3) the
duration of the period of disability. Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk.
Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). While medical proof is not an
“absolute prerequisite” to receiving temporary disability benefits, any award must be
consistent with the medical evidence. Austin v. Genlyte Thomas Grp., LLC, No. M2009-
01601-WC-R3-WC, 2010 Tenn. LEXIS 652, at *10,11 (Tenn. Workers’ Comp. Panel
July 12, 2010).
Previously, the Court found Mr. Wright was entitled to temporary total disability
benefits from August 29 through October 8. While Mr. Wright alleged that he did not
work from August 29 through February 2, 2021, the Court holds that his allegation
without medical proof is insufficient to show he is likely to prove at trial that his inability
to work extended beyond October 8. Thus, the Court holds that Mr. Cooper must pay
temporary total disability benefits from August 29 through October 8, 2020, at a
compensation rate of $419.91 for a total of $2,459.47. Mr. Wright’s claim for additional
temporary disability benefits is denied at this time.
Regarding Mr. Wright’s assertion that Mrs. Cooper was a partner in J&K
Improvements and thus was also his employer, the Court holds the scant evidence he
provided is insufficient to overcome Mr. Cooper’s assertions to the Court and to the
Uninsured Employer’s Fund investigator that he was the business’s sole proprietor. As a
result, the Court holds at this time that Mrs. Cooper was not Mr. Wright’s employer.
IT IS, THEREFORE, ORDERED that:
1. Mr. Cooper shall pay Mr. Wright temporary total disability benefits in the amount of
$2,459.47.
2. Mr. Wright is eligible to recetve an award from the Uninsured Employer’s Fund
under Tennessee Code Annotated section 50-6-801 for the past temporary total
disability benefits owed by Mr. Cooper based on the Court’s holding set out in its
previous Expedited Hearing Order. Mr. Wright may request this award using the
attached form.
. Mr. Cooper remains obligated to pay Mr. Wright’s past and future expenses for the
reasonable and necessary treatment of his work-related injuries, and Mr. Wright
remains eligible to receive reimbursement from the Uninsured Employer’s Fund for
expenses from providers identified in the previous Expedited Hearing Order.
Mrs. Cooper retains no liability for Mr. Wright’s claim at this time.
This case is set for a Scheduling Hearing on April 15, 2021, at 1:30 p.m. Central
Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to
participate. Failure to call may result in a determination of the issues without your
further participation.
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 may 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 March 9, 2021.
Kol DL
Robert V. Durham, Judge
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
NAURWN
Request for Investigation Report
Dr. Simpson’s Report
Prescription receipts and medical bills
Additional prescription receipts and medical bills
J&K Improvements Commercial Liability Policy
Expedited Hearing Order dated January 29, 2021
Mr. Wright’s T.R.C.P. Rule 72 Statement
Technical Record:
1. Petition for Benefit Determination
2. Expedited Request for Investigation
3. Dispute Certification Notice
4. Request for Expedited Hearing
5. Second Request for Expedited Hearing
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on March 9, 2021.
Name Certified | Via Via __| Service sent to:
Mail Fax | Email
Tracy Wright x x 123 Stone Avenue, Apt. 2
Crossville, TN 3855
wrightnormantracy@gmail.com
Joshua Cooper x x 150 Grandview Drive,
Crossville, TN 38555
Jkimprovements20@gmail.com
Uninsured Employers X | Lashawn.pender@tn.gov
Fund
\ /
Styne tua
Penny Shrum, Cierk 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/
wce.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):
0 Expedited Hearing Order filed on O Motion Order filed on
0 Compensation Order filed on C1 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): fo 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 lof 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
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