Carrillo, Miguel Garcia v. Carlos Sanchez Hurtado, a/k/a Carlos Ramirez Rios, Gilberto Cavazos, Kosinski Homes, Kosinski Properties LLC, Hartford Casualty Insurance Company, and Hartford Underwriters Insurance Company , 2023 TN WC 39 ( 2023 )

FILED
May 25, 2023
12:04 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Miguel Garcia Carrillo, ) Docket No. 2021-06-1167
Claimant, )
v. )
Carlos Sanchez Hurtado, a/k/a Carlos ) State File No. 800727-2022
Ramirez Rios, Gilberto Cavazos, ) 800658-2021
Kosinski Homes, Kosinski Properties ) 800657-2021
LLC, Hartford Casualty Insurance
Company, and Hartford Underwriters )
Insurance Company, ) Judge Kenneth M. Switzer
Respondents.
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
Miguel Garcia Carrillo broke his arm and leg while working at a construction site.
The parties agree on that fact, but they disagree regarding which of them, if any, is
responsible for workers’ compensation benefits. The respondents raise a variety of
defenses.
The Court held an evidentiary hearing on May 18, 2023, and finds that Carlos
Hurtado Sanchez a/k/a Carlos Ramirez Rios, who is uninsured, directly employed Mr.
Carrillo, and the statutory employer is Gilberto Cavazos. Therefore, Mr. Cavazos and/or
his carrier, Hartford Underwriters Insurance Company, must provide a panel of
orthopedists.
However, on this record, Mr. Carrillo has not met his burden to show he is entitled
to payment of past medical bills or past temporary disability benefits, so those requests are
denied at this time.
Claim History
Mr. Carrillo testified that Mr. Rios hired him. On August 28, 2021, Mr. Carrillo
was injured when he fell from a roof while framing a garage. Mr. Rios was present when
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the accident occurred and had been directing the work. Mr. Carrillo considered Mr. Rios
his “boss/supervisor,” and he was in charge of the project.
Mr. Carrillo went to the emergency room after the accident and remained
hospitalized. He did not work for some time after his discharge. However, he did not offer
records documenting the treatment he received or whether a physician restricted him from
working. Mr. Carrillo incurred medical bills for the treatment, which apparently remain
unpaid.
Mr. Carrillo testified that Mr. Rios paid him a daily rate of $150 and supervised his
work. Mr. Rios testified that he paid Mr. Carrillo $13 per hour, and they worked nine- to
ten-hour days. Mr. Rios determined the length of the workdays and when they took breaks.
Mr. Rios provided some of the tools, but Mr. Carrillo brought some of his own tools as
well.
Mr. Rios testified that he was hired by Gilberto Cavazos, who paid him by the job
and did not supervise his work. Mr. Rios confirmed that he hired Mr. Carrillo without
consulting Mr. Cavazos. Mr. Rios said that on the day of the accident, he told Mr. Carrillo
to stay on the ground, but he ignored that instruction. After the accident, he gave Mr.
Carrillo an unspecified amount of money to help pay rent.
Mr. Rios does not have insurance; a Bureau investigator confirmed that fact. Along
these lines, Mr. Rios testified that he warns all persons that he hires to be careful because
he is uninsured.
Mr. Cavazos is insured by Hartford Underwriters Insurance Company. Although
Mr. Cavazos attended the hearing, he did not testify.
Mr. Carrillo sought payment of past medical bills and temporary disability benefits
for the time he was unable to work.1
The respondents, except for Mr. Rios, argued that they did not employ Mr. Carrillo.
They questioned whether Mr. Carrillo disregarded instructions that would have prevented
the accident. They further challenged the employment relationships between Mr. Carrillo
and Mr. Rios, and Mr. Rios and Mr. Cavazos. They additionally argued that Mr. Carrillo
1
The Court excluded from evidence the medical bills because they did not meet the requirements of
Tennessee Compilation Rules and Regulations 0800-02-21-.16(2)(b) (February, 2022) (medical bills are
self-authenticating and admissible when signed by a physician or accompanied by a form signed by a
medical provider or records custodian certifying that the bills are true and accurate); and see Eaves v.
Ametek, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 53, at *8-9 (Sept. 14, 2018) (medical bills must be
accompanied by proof that they are reasonable, necessary, and causally related to the work accident to be
admitted into evidence).
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did not comply with procedural rules or satisfy his burden of proof by introducing
admissible medical records or bills.2
From a procedural standpoint, Mr. Carrillo first named Mr. Rios and Kosinski
Properties as his employer in his petition for benefit determination. He filed two amended
petitions later identifying Mr. Rios as the “direct employer,” “Kosinski Homes” and
“Kosinski Properties” as a “builder,” along with their carrier. He also named “Gilberto
Cavazos” as a “subcontractor.”
Findings of Fact and Conclusions of Law
The Workers’ Compensation Law states that “the employer” must furnish medical
treatment, free of charge to “the employee,” made reasonably necessary by a work
accident. Tenn. Code Ann. § 50-6-204(a)(1)(A) (2022). The central issue in this case is,
who is the “employer” that must furnish treatment?
An “employee” is a person in the service of an employer under a contract of hire
either written or implied. Tenn. Code Ann. § 50-6-102(10)(A). In Black v. Dance, 643
S.W.2d 654, 657 (Tenn. 1982), the Tennessee Supreme Court explained that “the word
‘hire’ imports remuneration or compensation.” Thus, “[i]n order for one to be an employee
of another for purposes of our Worker’s Compensation Law, it is, therefore, required that
there be an express or implied agreement for the alleged employer to remunerate the alleged
employee for his services[.]” Id.Here, Mr. Carrillo testified that he and Mr. Rios agreed that Mr. Carrillo would work
on the home construction project. They disagreed on his rate of pay ̶ $150 per day versus
$13 per hour for a nine to ten-hour workday—but the small difference in the amount is
irrelevant to the larger point that these two parties agreed that Mr. Rios paid Mr. Carrillo
to work on the project. The Court finds Mr. Carrillo was Mr. Rios’s employee. Mr. Rios
was the immediate employer and is uninsured.
Mr. Carrillo made his claim against Mr. Rios “in the first instance” as “the
immediate employer.” Tenn. Code Ann. § 50-6-113(c). However, a “principal 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 principal contractor,
intermediate contractor or subcontractor[.]” Id. at -113(a).
Case law explains that section 50-6-113 “prevents employers [from] avoiding
workers’ compensation liability simply by contracting out work.” Osbourne v. Starrun,
2
Mr. Cavazos’s attorney moved for involuntary dismissal after Mr. Carrillo testified, asserting that he did
not satisfy his burden. The Court denied the motion because this case is at the interlocutory stage, and this
is a nonfinal order, so involuntary dismissal is inappropriate. See Tenn. Code Ann. § 50-6- 239(d)(3).
3
Inc., No. E2018-00282-SC-R3-WC, 2018 Tenn. LEXIS 656, at *9 (Tenn. Workers’ Comp.
Panel Oct. 19, 2018). The section’s purpose is “to protect employees of irresponsible and
uninsured subcontractors by imposing ultimate liability on the presumably responsible
principal contractor, who has it within his power, in choosing subcontractors, to pass upon
their responsibility and insist upon appropriate compensation for their workers.” Blackwell
v. Comanche Constr., Inc., No. W2012-01309-COA-R9-CV, 2013 Tenn. App. LEXIS 251,
at *13-14 (Tenn. Ct. App. 2013).
The section “operates by passing along to upstream contractors the responsibility
either to require their immediate contractors or subcontractors to provide workers’
compensation coverage to their own employees or to be responsible for the coverage
themselves.” Id. at *14. Further, section -113 “is said to deem such a principal contractor
to be the injured employee’s ‘statutory employer.’” Id.Here, Mr. Rios testified that Mr. Cavazos hired him as an independent contractor.
However, this label and the nature of their working relationship are irrelevant for purposes
of section -113. Looking at the plain language of the statute, section -113 does not require
employment relationships among all respondents but instead envisions the hiring of
“subcontractors.” If the Court were to accept Mr. Cavazos’s contention that hiring Mr.
Rios as either a “subcontractor” or “independent contractor” would end the ability to pass
liability to upstream contractors, it would subvert the very purpose of section -113.
Workers would be left unprotected from uninsured contractors.
Mr. Cavazos cited no case law to support his interpretation of section -113. Rather,
longstanding law supports the rule that a principal contractor, intermediate contractor, or
subcontractor cannot evade liability through the use of independent contractors. See
Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 953 (Tenn. 1985) (A contract
between an immediate employer and a principal contractor that characterizes the immediate
employer as the primary employer’s independent contractor did not insulate the primary
contractor from liability). Therefore, the Court finds that Mr. Cavazos is the statutory
employer.
As to the remaining defenses, the respondents argued that Mr. Carrillo did not file
a witness or exhibit list. He was not required to file an exhibit list. See Tenn. Comp. R. &
Regs. 0800-02-21.15(1) (February, 2022). Moreover, his hearing request listed potential
witnesses in compliance with the rule.
As for the contention that Mr. Carrillo did not follow Mr. Rios’s instructions, “[o]ne
of the fundamental purposes of workers’ compensation law is to compensate employees
for work-related injuries irrespective of fault.” Lang v. Nissan N. Am., Inc., 170 S.W.3d
564, 572 (Tenn. 2005) (Emphasis added). Further, “[A]n employee’s negligent conduct is
not a defense to a claim for workers’ compensation benefits and to succeed on this defense,
the employer must establish that the employee willfully violated a known safety rule.”
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Oglesby v. United Parcel Serv., Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 34, at *13
(July 19, 2018). Here, no respondent introduced evidence of willful misconduct, nor was
that defense listed on the dispute certification notice. See Tenn. Code Ann. § 50-6-
239(b)(1).
Therefore, the Court holds that Mr. Cavazos and his insurer are responsible for
benefits. The question then becomes, which benefits must they provide?
Mr. Carrillo, as the employee in a workers’ compensation case, has the burden of
proving all essential elements of his claim for benefits. Scott v. Integrity Staffing Solutions,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). He also must show at
an expedited hearing that he is likely to prevail at a hearing on the merits. Tenn. Code
Ann. § 50-6-239(d)(1).
Turning first to medical benefits, section 50-6-204(a)(3)(A)(i) states that an
employer “shall designate a group of three (3) or more independent reputable physicians .
. . from which the injured employee shall select one (1) to be the treating physician.” Under
this subdivision, Mr. Cavazos must offer a panel of orthopedic specialists, from which Mr.
Carrillo may select a treating physician. The treating physician shall evaluate him,
determine if any further treatment is necessary, and assign an impairment rating. Tenn.
Code Ann. § 50-6-204(k)(1).
As for past treatment, “an employer who does not timely provide a panel of
physicians risks being required to pay for treatment an injured worker receives on his own.”
Ducros v. Metro Roofing and Metal Supply Co., 2017 TN Wrk. Comp. App. Bd. LEXIS
62, at *10 (Oct. 17, 2017). However, Mr. Carrillo did not offer medical bills in an
admissible form, so the Court cannot order payment at this time. He may secure additional
documentation to authenticate these bills and seek payment, as well as reimbursement for
the out-of-pocket expenses he paid for medications, at a later hearing.
Mr. Carrillo also requested temporary disability benefits. He must prove (1) total
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.
Mollica v. EHHI Holdings, Inc. d/b/a Advanced Home Care Mgmt. Inc., d/b/a Encompass
Home Health, 2020 TN Wrk. Comp. App. Bd. LEXIS 22, at *7 (Apr. 21, 2020).
Mr. Carrillo offered no admissible proof that he suffered a compensable injury that
totally disabled him from work or of the duration of his disability. His testimony alone is
insufficient, so this request is denied at this time. As with the medical bills, he may obtain
this essential medical proof and renew this request at a later hearing.
A final concern is referrals for the consideration of penalties.
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Turning first to Mr. Rios, he testified candidly and at times against his own interest,
and he gave Mr. Carrillo financial assistance after the accident. Regardless, as a
construction services provider, the Workers’ Compensation Law requires that he have
insurance. Tenn. Code Ann. § 50-6-902(a). His failure to do so subjects him to a penalty
under section 50-6-118. That same subdivision calls for a penalty when an employer fails
to provide medical treatment, a panel, and/or temporary total disability benefits, or fails to
comply with a court order. Mr. Rios might have violated all these requirements and should
be investigated for the potential imposition of penalties.
As for Mr. Cavazos and his carrier, the Court has rejected their defense that it was
not responsible for benefits to Mr. Carrillo due to Mr. Rios’s status as his independent
contractor. The defense overlooked case law contrary to this argument. Mr. Cavazos and
his carrier have likewise failed to provide medical treatment, a panel, and/or temporary
total disability benefits. They, too, should be investigated for potential penalties under the
same provisions of the Workers’ Compensation Law.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. Gilberto Cavazos and his carrier must offer a panel of orthopedists within ten
business days of this order, for Mr. Carrillo to select a physician for any reasonable
and necessary medical treatment causally related to the work injury under Tennessee
Code Annotated section 50-6-204(a)(1)(A). They shall immediately schedule an
appointment once Mr. Carrillo makes his selection.
2. As described above, the case is referred to the Compliance Program for
consideration of penalties levied against Mr. Rios and Mr. Cavazos and/or Hartford
Underwriters Insurance Company.
3. The Court sets a status hearing on August 7, 2023, at 10:00 a.m. Central Time.
You must dial (615) 532-9552 or (866) 943-0025 to participate. The respondents
must arrange for a court-certified or -registered interpreter.
4. 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). Mr.
Cavazos and/or his carrier 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.
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ENTERED May 25, 2023.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
Appendix
Technical record: (Excludes all attachments)
1. Petition for Benefit Determination, September 21, 2021
2. Amended Petition for Benefit Determination, December 14, 2021
3. Amended Petition for Benefit Determination, December 14, 2021
4. Amended Petition for Benefit Determination, February 1, 2021, and translation
5. Order Granting Motion to Withdraw
6. Dispute Certification Notice
7. Order Setting Status Hearing
8. Order on Status Hearing, July 18, 2022
9. Hearing Request
10. Order on Status Hearing, August 30, 2022
11. Order on Status Hearing, September 9, 2022
12. Order Resetting Status Hearing and Referring the Case for Consideration of
Penalties, December 20, 2022
13. Order Resetting Status Hearing
14. Order Setting Expedited Hearing
15. Defendant Kosinski Properties, LLC’s Position Statement
16. Kosinski Properties, LLC’s Supplemental Position Statement
17. Gilberto Cavazos’s Expedited Hearing Position Statement
18. Unnamed Defendant The Hartford’s Position Statement for Expedited Hearing
19. Subpoena
Evidence:
1. Declaration of Mr. Carrillo
2. Expedited Request for Investigation Report
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CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on May 25, 2023.
Name Certified Regular Email Sent to
Mail mail
Miguel Carrillo, X X Carrillo1500angel@gmail.com
employee 3834 Faulkner Dr.
Nashville TN 37211
Carlos Sanchez X 335 Flora Maxwell Road
Hurtado, a/k/a Nashville TN 37211
Carlos Ramirez
Rios, respondent
Gilberto Cavazos X Nmcintire@howell-fisher.com
and Hartford
Underwriters
Insurance Company,
respondents
Kosinski Properties, X dana@stokeswiliams.com
LLC/Kosinski Carla@stokeswilliams.com
Homes, respondents
Hartford Cas. Ins. X Kenny.veit@leitnerfirm.com
Co., respondent Laura.bassett@leitnerfirm.com
Compliance X WCCompliance.Program@tn.gov
Program
_______________________________________
PENNY SHRUM
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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): _________________________________________ ☐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 1 of 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 I 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