Baccallao, Amalia v. Javier H. Sanabria DBA Cleaning Service

2020 TN WC 105
CourtTennessee Court of Workers' Compensation Claims
DecidedOctober 14, 2020
Docket2019-04-0203A, 2019-04-0203B, 2019-04-0203C
StatusPublished

This text of 2020 TN WC 105 (Baccallao, Amalia v. Javier H. Sanabria DBA Cleaning Service) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baccallao, Amalia v. Javier H. Sanabria DBA Cleaning Service, 2020 TN WC 105 (Tenn. Super. Ct. 2020).

Opinion

FILED Oct 14, 2020 07:15 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT COOKEVILLE

Amalia Baccallao, ) Docket Nos.: 2019-04-0203A Employee, ) 2019-04-0203B v. ) 2019-04-0203C Javier H. Sanabria DBA Custom ) Cleaning Service, ) Respondent, ) State File Nos.: 51633-2019 And ) 27508-2020 AmGuard Ins. Co., ) 27484-2020 Respondent, ) And ) Victoriano C. Jutzuy, ) Judge Robert Durham Respondent, ) And ) United Painting Services, Inc., ) Respondent, ) And ) Auto Owners Ins. Co., ) Respondent. )

EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS

This case came before the Court on September 30, 2020, for an Expedited Hearing. Ms. Baccallao sought medical and temporary disability benefits for a right-knee injury she allegedly sustained at work. Her immediate employer, Mr. Jutzuy, did not have workers' compensation insurance. AmGuard, the carrier for the next-asserted contractor, Mr. Sanabria, claimed that it did not provide coverage for him for work performed in Tennessee. The final alleged contractor, United Painting, claimed the proof was insufficient to link Ms. Baccallao to it and that she failed to establish a work-related injury. Based on the evidence, the Court holds Ms. Baccallao is likely to prove that she is entitled to a panel of doctors for treatment from Mr. Jutzuy, but she did not sufficiently establish a link to the other contractors to obtain benefits through them.

1 History of Claim 1

Amalia Baccallao has lived in Tennessee since 2006. In July 2019, she called Victoriano Jutzuy, who resided in Charlotte, North Carolina, about painting the new recreational center at Tennessee Tech. He hired her as a painter at $17 .00 hourly wage. They met for the first time on July 15, 2020, when Ms. Baccallao learned that the job required her to paint from 7:00 to 5 :00 with one hour for lunch.

Ms. Baccallao worked her entire shift from Monday to Thursday. In a Rule 72 Declaration, Mr. Jutzuy claimed she did not work on Friday, July 20. 2 Ms. Baccallao testified that she did, in fact, work her regular shift that Friday. She asserted that her work in the morning required her to climb up and down a fourteen-foot ladder and move it frequently. At one point, she hit her knee on a rung and hurt it while climbing down the ladder. She recalled asking Mr. Jutzuy to help her move the ladder and telling him that she had hurt her knee on the ladder. After lunch, Mr. Jutzuy assigned her to another area, where she finished her shift. Mr. Jutzuy asked her to work the next day, but she declined.

That evening, Ms. Baccallao noticed her knee was painful and swollen. She tried to call Mr. Jutzuy but could not reach him. On Monday, she went to work, but Mr. Jutzuy had not returned from his home in North Carolina. Instead, "Victor" oversaw assignments. She told him about hurting her knee on Friday. After lunch, Mr. Jutzuy arrived, and she again told him about her knee. He agreed it appeared swollen. They went to the project superintendent and reported the injury. Ms. Baccallao filled out an accident report that was signed by Mr. Jutzuy. 3 He then told her he no longer needed her and wrote her a check dated July 22 for $910.00. The check stated it was for the "TTU job."

The next day, Ms. Baccallao contacted the Bureau. On August 6, the Bureau initiated an investigation into possibly penalizing Mr. Jutzuy for lack of insurance. According to the Investigative Report, Mr. Jutzuy admitted to having no insurance because he believed United Painting was providing workers' compensation insurance. He confirmed eight painters worked on the project and stated he provided reports to United Painting, which wired money to him to pay the painters each week. He also reported that he consulted with United Painting before terminating Ms. Baccallao. However, in the Rule 72 Declaration, he denied being United Painting's employee.

The Investigative Report concluded that the relationship between Ms. Baccallao and Mr. Jutzuy met seven of the eight criteria in Tennessee Code Annotated section 50-6- 102(12)(D)(i) for determining whether the injured worker is an employee or a subcontractor.

1 Unless specifically stated otherwise, the facts contained in this section were undisputed. 2 Mr. Jutzuy did not appear at the hearing. Ms. Baccallao stated she tried to locate him, but he has "disappeared." 3 The report was not made an exhibit.

2 Ms. Baccallao made several attempts to obtain authorization to see a doctor from Mr. Jutzuy and Mr. Sanabria, who allegedly subcontracted the project to Mr. Jutzuy. She also sought authorization from United Painting. All her efforts were unsuccessful. Over the course of several months, Ms. Baccallao filed Petitions for Benefit Determination against Mr. Jutzuy, Mr. Sanabria and United Painting, as well as Mr. Sanabria's alleged carrier, AmGuard, and United Painting's carrier, Auto-Owners. The Court consolidated these Petitions for the Expedited Hearing.

In addition to her testimony, Ms. Baccallao submitted a contract she said was given to her by Mr. Sanabria. The contract is titled "Subcontractor Agreement" and purports to be between United Painting and Javier Hernandez. 4 The agreement identified the "TTU- Student Rec Center" as the "Project." It is dated May 31, 2019, and signed by Leonardo Andrade, President and Owner of United Painting, and Mr. Hernandez as Owner of "Subcontractor."

Ms. Baccallao testified she continues to suffer from pain and swelling in her knee that significantly impairs her ability to move, particularly by climbing up and down stairs. On cross-examination, she admitted she did not seek medical care until September 2020 but stated it was because she could not pay for it. She submitted a bill from the emergency room for $513.00.

Neither Mr. Jutzuy nor Mr. Sanabria appeared at the hearing. For its part, AmGuard offered into evidence its policy with Mr. Sanabria and argued that it only covered employees hired to do work in North Carolina unless the following elements were met: The claimant was hired or performing work in North Carolina; Mr. Sanabria did not have, nor was required to have, workers' compensation insurance in the state where benefits were claimed; and the work being performed by the claimant was temporary. Am Guard asserted that the contract between Ms. Baccallao and Mr. Jutzuy was made in Tennessee for work to be performed in Tennessee. Thus, the workers' compensation policy would not apply.

United Painting also offered evidence in support of its position that it does not owe benefits to Ms. Baccallao. In addition to Mr. Jutzuy's Rule 72 Declaration that he was not an employee of United Painting and that Ms. Baccallao did not work on July 19, it also offered the Rule 72 Declaration of Lindsey Swanson, Finance Director for United Painting. Ms. Swanson stated that neither Ms. Baccallao, Mr. Jutzuy, nor Mr. Hernandez were ever employees of United Painting.

4 At the hearing, counsel for Am Guard clarified that "Javier Hernandez" and "Javier Sanabria" was the same person.

3 Findings of Fact and Conclusions of Law

Ms. Baccallao must present evidence from which this Court can determine that she is likely to prove at trial that she is entitled to workers' compensation benefits, and if she is, who should be responsible for payment of those benefits. See generally McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).

Here, the Court finds Ms. Baccallao a credible witness. She was open, straight- forward and answered all questions with confidence and an appearance of candor. The Court finds that Ms. Baccallao was Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

§ 50-6-801
Tennessee § 50-6-801(d)(l)

Cite This Page — Counsel Stack

Bluebook (online)
2020 TN WC 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baccallao-amalia-v-javier-h-sanabria-dba-cleaning-service-tennworkcompcl-2020.