Edwin R. Oliver

This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6- 225(e)(3) for hearing and reporting to the Supreme Court of findings of facts and conclusions of law. In this case the trial court held that ProLogis Trust and Steve Graves were employers of the employee, Edwin C. Oliver pursuant to Tenn. Code Ann. _ 5-6-113 and awarded workers' compensation benefits for an injury to his left lower extremity. The sole issue presented for review is whether the defendant ProLogis Trust, at the time of the employee's accident, was the employee's statutory employer as defined by Tenn. Code Ann. _ 5-6-113, and therefore liable for workers' compensation benefits. For the reasons discussed in this opinion, we find that the judgment of the trial court should be reversed as to the defendant, ProLogis Trust Tenn. Code Ann. _ 5-6-225(e) (1999) Appeal as of Right; Judgment of the Circuit Court Reversed JAMES L. WEATHERFORD, SR.J., in which JOE H. WALKER, III, SP.J., and JANICE M. HOLDER, J., joined. John Robert Cannon, Jr., Memphis, Tennessee, for appellant, ProLogis Trust. Clyde W. Keenan, Memphis, Tennessee, for appellee, Edwin R. Oliver, Individually as next friend of Edwin C. Oliver, a minor. MEMORANDUM OPINION ProLogis Trust is a global company that leases, owns and manages industrial buildings. They have approximately 45 buildings in the Memphis - Shelby County area with approximately seven million square feet. At the time the employee was injured, Steve Graves owned a company called ABC Roofing and Tree Service. The name of his company was later changed to ABC Repair because he did not do much tree work anymore. Mr. Graves described his work as cleaning, repair, fix-up and paint- up. An employee of ProLogis described Graves' work as putting up sheetrock, building some type of office, installing carpet, cleaning up the space, cleaning the windows, and pressure washing the inside of a building to get cobwebs down. On July 19, 1999, Plaintiff, Edwin C. Oliver, called Defendant, Steve Graves, and inquired about summer work with Mr. Graves. Mr. Oliver and Mr. Graves had not met before, but they attended the same church. At this time, Mr. Oliver was 17 years of age. Mr. Graves instructed Mr. Oliver to come to a warehouse owned and operated by ProLogis Trust. When Mr. Oliver arrived at the warehouse, Mr. Graves was not there. Mr. Oliver began to sweep floors in the warehouse. When Mr. Graves arrived, Mr. Graves and Mr. Oliver began to straighten concrete poles. The poles were approximately 4 feet tall and 12 inches in diameter. As a pole was being straightened, the pole broke and struck Oliver's left foot, causing injury to his foot. This injury necessitated the amputation of three toes and the tip of the fourth toe. At the conclusion of the proof, the trial court found that ProLogis Trust and Steve Graves were employers of Mr. Oliver pursuant to Tenn. Code Ann. _ 5-6-113.1 The trial court found that Graves had an obligation to provide workers' compensation coverage, which he didn't. Further, the trial court found that ProLogis knew that Graves did not have coverage as required under the contract between ProLogis and Graves, and allowed Graves to work nevertheless. The trial court found that Mr. Oliver suffered a disability of 5 percent to the left lower extremity. ANALYSIS Our review of the findings of fact made by the trial court is de novo upon the record of the 1Tennessee Code Annotated _ 5-6-113 provides in pertinent part: (a) A principal, or intermediate contractor, or subcontracter shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal, intermediate contractor, or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer. ........... (d) This section applies only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under the principal's control or management. -2-