Green, Crystal v. 101 Vape & Smoke, LLC

FILED
Oct 03, 2025
08:26 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Crystal Green Docket No. 2024-50-3519

v. State File No. 860183-2024

101 Vape & Smoke, LLC

Appeal from the Court of Workers’
Compensation Claims
Dale A. Tipps, Judge

Reversed and Remanded

In this interlocutory appeal, the employee reported tripping over a cord and injuring her
right ankle. The company for which she was working asserted it did not have five or more
employees and, therefore, was not subject to Tennessee’s workers’ compensation laws.
Following an expedited hearing, the trial court determined that several related companies
with one or more common owners operated as a single business entity and, when
considered collectively, were subject to the workers’ compensation laws. The trial court
ordered the company to provide a panel of physicians, but it denied the employee’s claim
for temporary disability benefits. Both parties have appealed. We reverse the trial court’s
order with respect to the threshold issue of the applicability of Tennessee’s Workers’
Compensation Law, conclude all other issues are pretermitted, and remand the case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.

Ben M. Rose, Nashville, Tennessee, for the defendant, 101 Vape & Smoke, LLC

Crystal Green, Murfreesboro, Tennessee, employee, pro se

Factual and Procedural Background

Crystal Green (“Employee”) worked for 101 Vape & Smoke, LLC (“Defendant”). 1
On April 2, 2024, Employee reported tripping over a cord behind a counter at the store
1
After each party filed a notice of appeal, Defendant filed a motion to exclude certain documents submitted
by Employee, and it included a footnote in its motion stating that “the Employee’s claim in this matter was
lodged against ‘Vapor [sic] 101 Smoke,’ which does not exist.” (Employee’s petition identified her

1
where she was working and injuring her right ankle. Her boyfriend arrived at the store
soon after the fall and advised her to go to an emergency room. Employee contacted a
supervisor and informed him that, because she was the only worker in the store at that time,
she would need to close the store and go to the emergency room. She later asserted that
Defendant failed to provide her any medical or temporary disability benefits. In May 2024,
Employee filed a petition for benefit determination along with multiple documents she
believed supported her claim. A DCN was issued indicating Defendant challenged the
compensability of the accident and Employee’s entitlement to benefits. The DCN also
indicated there was a dispute as to whether Employee was entitled to benefits from
Tennessee’s Uninsured Employer’s Fund (“UEF”).

In March 2025, Employee filed a request for an expedited hearing asking the court
to order Defendant to provide certain workers’ compensation benefits. The record contains
no pre-hearing statements, briefs, witness lists, or exhibit lists filed by either party. The
expedited hearing was conducted on June 26, 2025, and included testimony from
Employee, Employee’s boyfriend, and a representative of Defendant. Following that
hearing, the trial court determined that a “threshold question” was whether Defendant is an
“employer” subject to Tennessee’s Workers’ Compensation Law. In answering that
question, the court was required to determine whether Defendant had five or more
employees, as stated in the statutory definition of “employer.” After reviewing the
evidence presented on that issue, the court concluded that Employee did not come forward
with sufficient evidence “to prove that 101 Vape & Smoke, LLC employed five or more
people.” Nevertheless, the court then determined that because Defendant’s owners
purportedly operated more than one vape shop through different business entities, the stores
could be considered “collectively” for purposes of determining whether Defendant had five
or more employees. As a result, it determined that, collectively, Defendant and related
business entities were subject to the requirements of the Tennessee Workers’
Compensation Law. It then ordered Defendant to provide Employee a panel of physicians.
With respect to Employee’s claim for temporary disability benefits, however, the court
stated that Employee “presented no medical proof regarding the cause, extent, or duration
of disability,” and, therefore, denied her claim for temporary disability benefits at that time.
Both parties have appealed.

purported employer as “Vape 101 Smoke.”) Defendant then noted the trial court had “amended the style
of this case sua sponte in the Expedited Hearing Order . . . to reflect ‘101 Vape & Smoke, LLC.’” Yet,
after Employee’s petition was filed, Defendant did not file a motion to dismiss for lack of personal
jurisdiction. It participated in mandatory mediation through counsel but did not challenge the jurisdiction
of the court or seek to correct the name of Defendant when given an opportunity to identify disputed issues
on the dispute certification notice (“DCN”) or offer amendments to the DCN. Prior to the issuance of the
court’s expedited hearing order, Defendant did not file a pre-hearing statement or motion challenging the
jurisdiction of the court or indicating Defendant had been misnamed. We conclude that any argument
regarding lack of personal jurisdiction has been waived. See Tenn. Code Ann. § 50-6-239(b)(1); Felty v.
Chillicothe Realty Co., 134 S.W.2d 153, 154 (Tenn. 1939).
2
Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2024). When the trial judge has had the opportunity
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2024).

Analysis

Tennessee Code Annotated section 50-6-102(11) defines “employer” as “any
individual, firm, association[,] or corporation . . . using the services of not less than five (5)
persons for pay . . . .” During the expedited hearing, the court had to determine whether
Defendant had five or more employees. Thus, we restate the issue as follows: When an
employer disputes it is subject to Tennessee’s Workers’ Compensation Law due to the
number of persons employed, can a court consider the total number of people employed by
separate but related business entities to reach the five-employee threshold? Employee
testified that she believed Defendant operated several different locations and that
employees from various locations worked at different stores depending on staffing needs.
She identified (by first name only) more than five persons she claimed worked at the stores
allegedly operated by Defendant.

In response, Defendant offered testimony from Michael Naguib, who testified he
owns a “percentage” of 101 Vape & Smoke, LLC, which is located on South Lowry Street
in Smyrna, Tennessee and is the sole location owned by Defendant. He then acknowledged
that he owns or partially owns “multiple” other businesses engaged in operating vape
shops, but he explained that every location is operated as a separate LLC. He then testified
that the store where Employee worked had “below five” employees. 2 Finally, Mr. Naguib
acknowledged that, on occasion, workers from one store will cover shifts at other stores.

2
During his testimony, Mr. Naguib identified only one other corporate entity he partially owns that operates
a vape store, called “101 Vape, LLC,” though he implied there are other similar companies. His testimony
failed to provide a complete picture of the relationship between the various LLCs.
3
He stated this happens once or twice a week “if we are short staffed at that location and we
need help.” He maintained, however that those workers are not employed by Defendant.

Following the hearing, the trial court issued an order in which it determined that
“[w]ithout more [evidence], the Court cannot find [Employee] is likely to prove that
[Defendant] employed five or more people.” We conclude the preponderance of the
evidence supports that finding.

The court then discussed whether it could “consider the three locations collectively
in determining the number of employees.” To reach a conclusion as to that issue, the court
relied principally on Mr. Naguib’s testimony in which he described the separate LLCs that
operate various vape shops and the practice of loaning employees from one LLC to another.
It also cited a case from the Mississippi Court of Appeals, Southeastern Auto Brokers v.
Graves, 210 So. 3d 1012 (Miss. Ct. App. 2015), upholding a decision of the Mississippi
Workers’ Compensation Commission in a factually similar case. The court described
Defendant’s practice in this case as having “[t]he obvious and troubling effect . . . of these
three stores all benefit[ting] from the labor of more than five employees while still avoiding
the requirement of providing workers’ compensation benefits.”

In Garner v. Reed, 856 S.W.2d 698 (Tenn. 1993), the Tennessee Supreme Court
addressed the “five or more” employee requirement. The injured employee worked for an
individual who operated an unincorporated restaurant. Id. at 699. The restaurant’s owner
contended it did not have five or more employees and, thus, was not subject to Tennessee’s
workers’ compensation laws. Id. Evidence derived from payroll records indicated the
defendant had more than five persons who worked at various times during the employee’s
tenure, but there were never more than four employees at any given time. Id. Significantly,
the restaurant owner in Garner also operated a second unincorporated business, a bar,
which purchased food from his restaurant. Id. According to the Court, “[t]he two
businesses were treated as one on [the owner’s] . . . federal income tax return.” Id.

In analyzing whether the trial court in Garner erred in dismissing the employee’s
case, the Court first explained that “[t]he burden is upon the employee to prove by a
preponderance of the evidence that the employer had the requisite number of ‘persons
regularly employed.’” Id. at 700 (internal citations omitted). The court then explained that
to be an employee of another for purposes of workers’ compensation, “it is . . . required
that there be an express or implied agreement for the alleged employer to remunerate the
alleged employee for his services [on] behalf of the former.” Id. The Court also stated that
“helpers or gratuitous workers . . . are not to be counted” in determining whether a
particular employer has five or more employees. Id. at 701.

In reversing the trial court’s dismissal of the case, the Supreme Court in Garner
relied on testimony from the plaintiff indicating that, before her accident, she witnessed a
fifth employee (the wife of one of the owners) enter the restaurant, comment that she had

4
forgotten to “pay herself” for the previous week, then extract money from a bank bag. Id.
at 702. Another employee corroborated this testimony. Id. Thus, the Supreme Court
concluded there was sufficient evidence that five or more persons were working at the
restaurant for pay at the time of the employee’s accident. Id. Importantly, the Supreme
Court then stated, “[t]his conclusion makes it unnecessary for us to decide whether two
businesses owned by the same employer can be combined for purposes of counting
[employees].” Id. at 703.

We have been unable to locate any case, and none has been cited to us, in which a
court considered separate LLCs collectively for purposes of determining whether a
company had five or more employees and was thus subject to the Workers’ Compensation
Law. In a 1949 case, the Tennessee Supreme Court affirmed a lower court’s finding that
the employees of a sawmill, which was owned by the same person who owned a coal mine
where the employee was injured, could not be considered for the purpose of determining
whether the employer had five or more employees. Threet v. Cox, 226 S.W.2d 86, 87
(1949). Yet, in Buck & Simmons Auto & Electric Supply Co. v. Kesterson, 250 S.W.2d 39,
42 (1952), the Supreme Court reviewed extensive evidence of the connections between
two businesses with common ownership, location, and employees to determine that “there
were five or more employees employed by the appellants so as to bring them under the
provisions of the [Workers’ Compensation Law].” In short, we have no guidance from the
Supreme Court addressing under what circumstances the Court of Workers’ Compensation
Claims can consider the employees of separate LLCs to determine whether a particular
employer uses the services of five or more persons for pay and is, therefore, subject to
Tennessee’s Workers’ Compensation Law.

In the present case, based on the record before us, we conclude the preponderance
of the evidence supports a finding that Defendant operated a single store at a single
location. As noted above, Employee has not come forward with sufficient proof that
Defendant employed “five or more persons for pay,” as required by section 50-6-102(11).
We conclude the second question, therefore, is whether Defendant, by using the services
of employees from other business entities to further its own business interests, “us[ed] the
services of” those other individuals “for pay” during the times they were providing labor
for its benefit. Tenn. Code Ann. § 50-6-102(11) (2024). Evidence relevant to this question
may include, for example, documentation showing that the other LLCs that loaned workers
to Defendant paid those employees regular wages for the time they worked at Defendant’s
South Lowry Street store, then charged Defendant an amount equal to such wages. 3
Another example of supportive evidence would be if any particular employee who worked
for the various business entities produced admissible pay records showing he or she was
3
We do not intend to suggest that such evidence is required to support a finding that Defendant used the
services of five or more persons for pay, but we merely describe the kind of evidence that could support
such a finding. At a future hearing, the court can, of course, consider any admissible evidence relevant to
this issue in making that determination.

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paid by each of the separate LLCs for such time. See Am. Sur. Co. of New York v.
Clarksville, 315 S.W.2d 509, 513 (Tenn. 1958) (“[t]he ordinary and usual meaning of the
word ‘employe[e]’ is one who is employed by another and works for wages or salary”). In
other words, we conclude the relevant inquiry is not whether various business entities are
to be “considered collectively,” but whether this particular employer can be considered to
have “us[ed] the services of not less than five (5) persons for pay” as of the date of
Employee’s accident. Tenn. Code Ann. § 50-6-102(11).

In sum, after determining Employee was not likely to prove at trial that Defendant
had five or more employees, the trial court sought to determine whether a group of
seemingly interrelated companies could nevertheless be held liable for any workers’
compensation benefits to which Employee may be entitled. We conclude, however, that
the relevant question is whether this particular company, 101 Vape & Smoke, LLC,
qualified as an “employer” under Tennessee Code Annotated section 50-6-102(11), and
the preponderance of the evidence offered to date does not support a finding that Employee
is likely to prevail on this issue at trial. 4 Given this holding, all other issues raised on
appeal, including Employee’s appeal and Defendant’s pending motion to exclude, are
pretermitted.

Conclusion

For the foregoing reasons, we reverse the trial court’s interlocutory order regarding
the threshold issue of the applicability of Tennessee’s Workers’ Compensation Law,
conclude all other issues are pretermitted, and remand the case. Costs on appeal are taxed
to Employee.

4
We note that the Tennessee Bureau of Workers’ Compensation (“Bureau”) is empowered to investigate
any business entity it believes has failed to “[i]nsure and keep insured the employer’s liability under [the
Workers’ Compensation Law]. See Tenn. Code Ann. § 50-6-405(a)(1). In accordance with Tennessee
Code Annotated section 50-6-411(a)(1), a Bureau compliance specialist, “upon receipt of sufficient
information to give reasonable cause that an employer may be in violation of the insurance requirements of
this chapter,” shall have the authority to “inspect and investigate the places of employment and pertinent
conditions; business records, including complete payroll and tax information; certificates of insurance; sign
in and sign out sheets for jobsites; and vendor lists,” and can “question privately an employer, owner,
operator, agent, worker, or employee.” Tenn. Code Ann. § 50-6-411(a)(1). Moreover, subsection (c) gives
the Bureau the power to “issue and serve subpoenas” to compel “the production of books, documents, or
other tangible things that may be relevant, or reasonably calculated, to lead to the discovery of relevant
information necessary to determine whether the employer is subject to this chapter.” Tenn. Code Ann.
§ 50-6-411(b) & (c)(1)(B) (emphasis added). The record in this case contains nothing to indicate whether
such an investigation of Defendant or related business entities has occurred.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Crystal Green Docket No. 2024-50-3519

v. State File No. 860183-2024

101 Vape & Smoke, LLC

Appeal from the Court of Workers’
Compensation Claims
Dale A. Tipps, Judge

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced case
was sent to the following recipients by the following methods of service on this the 3rd day of
October, 2025.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Ben M. Rose X ben@rosefirm.com
Crystal Green X krisobunge@yahoo.com
Dale A. Tipps, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov