FILED Apr 06, 2023 10:51 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT NASHVILLE ANDRES HERNANDEZ, ) Docket No. 2021-06-1105 Employee, ) v. ) ) SMS, INC., d/b/a Master Stucco, ) State File No. 800494-2021 Employer, ) ) and ) ) TRAVELERS PROPERTY ) Judge Joshua Davis Baker CASUALTY CO. OF AMERICA, ) Carrier. ) EXPEDITED HEARING ORDER The Court held a March 16, 2023 expedited hearing to determine Mr. Hernandez’s entitlement to past and ongoing medical and temporary disability benefits for fracturing his left shoulder in a fall at work. Specifically, the issue is whether Mr. Hernandez was an employee rather than an independent contractor. For the reasons below, the Court finds he is likely to prevail at a final hearing in proving he was an employee, and Master Stucco must provide him medical benefits. Claim History Mr. Hernandez traveled to Nashville from Mexico because his brother-in-law, Juvencio Rivera Vargas, told him Master Stucco needed workers. He worked on Master Stucco jobsites by handing tools and materials to co-employees, cleaning up, and performing other unskilled labor. Master Stucco’s owner, Glen Cruzen, testified that he first met Mr. Hernandez when visiting a jobsite, which he did almost daily. Mr. Cruzen recalled, “So, when I went by to check on the job, [Mr. Rivera] said, ‘I would like for him to work with us.’ That’s how I met him and how he joined us.” Mr. Hernandez lived with Mr. Rivera and another Master Stucco employee in a home that they rented from Mr. Cruzen. The three men rode together to Master Stucco’s jobsites. Another worker named Jose, whose last name Mr. Hernandez did not know, lived next door to the men in a separate home on the same property. Jose delivered materials to jobsites and acted as an interpreter and translator. While Mr. Hernandez said Jose was “in charge,” Mr. Cruzen said Jose was “more of a courier.” On July 27, 2021, Mr. Rivera asked Mr. Hernandez to help him place “square things” on the outside of a chimney at a private residence on a Master Stucco jobsite. As Mr. Hernandez walked across a loose board of scaffolding, it gave way, and he fell from the top section of the scaffolding onto the scaffolding section below, fracturing his left shoulder. He recalled feeling immense pain and wanting treatment but having no way to get to the hospital. After speaking with Mr. Cruzen by phone, Mr. Rivera refused to take Mr. Hernandez to a hospital or call an ambulance. He took him home instead. With his arm swollen and painful, Mr. Hernandez went next door to ask Jose for help. Jose called Mr. Cruzen but told Mr. Hernandez to manage with pain medication and wait until morning. The next morning, Jose called Mr. Hernandez to say Mr. Cruzen’s son would take him to the hospital. He also told him to report that his injury occurred at home from falling …
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