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Lindeman v. Sain6/17/2002
The trial court found that the plaintiff, Daniel Keith Lindeman, was injured as a result of a work-related accident and entitled to recover under the Workers' Compensation Act.
The only issue raised in this case on appeal is whether the trial court erred in finding that defendant Sain was an employer under the definition of an employer under the Act prior to the 1997 amendment.
There is scant testimony in the record on the matter of how many employees the defendant Sain employed at any particular time. The plaintiff testified that at the time he was injured he was the sole employee of Sain.
Sain testified that the nature of doing drywall, the business he was in, was that a worker would come and go and he would obtain another in the departed worker's stead. The pertinent portion of Sain's testimony on the issue is as follows:
A: So we established Joey, Daniel Adams, Mr. Lindeman, Chris Engler, yourself and a couple of other individuals worked with you off and on from the year prior to this actual incident in February of `97, right?
A: (Witness nods head up and down.)
Q: And the other individuals we've identified, they worked with you in much the same way as Mr. Lindeman, correct?
A: That's correct.
Q: Their work for you was no different than the work that Mr. Lindeman performed for you during that same time frame, correct?
A: It was during the same time.
He further testified in response to a question about their normal workers:
A: Yeah. If you would understand the drywall business, these people work for an indefinite period of time and then there's someone else who takes their place when they're gone.
All of these questions were asked by the defendant, Summar Construction, in an effort to show Sain was subject to the provision of the Workers' Compensation Act and he, not they, were liable for the plaintiff's injuries. There was not evidence, testimonial or documentary, to show Sain employed five (5) regular employees at the same time.
In ruling on the issue of whether the defendant employed five people was "somewhat equivocal and certainly in dispute" as to whether Sain employed five people. The trial judge held that based on the testimony of the plaintiff the other people who worked for Sain worked under the same condition as did the plaintiff and thus Sain employed five people and was thus liable under the Workers' Compensation Act.
The trial judge made no finding that Sain employed five persons at one time. The plaintiff testified that when he worked for Sain he was the only employee at that time.
Both parties have cited several cases in support of their positions. We see no need to cite them other than the case of Garner v. Reed, 856 S.W.2d 698 (Tenn. 1993), which cites and summarizes the applicable rules in this case.
At the time of the event, an employer was not subject to the provisions of the Workers' Compensation Act unless they employed five or more employees on a regular basis. If at any time an employer employed five or more employees they became subject to the act, and could not divest themselves of its obligations by merely reducing their staff to less than five employees. The employment of five or more employees must have been at the same time, i.e., at least five on one day. The burden is on the plaintiff who claims the employer is subject to the act to prove that there were five employees at any one time. [In this case, Summar Construction is attempting to show Sain is subject to the act because this would absolve them from liability, therefore the burden is on them
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