1 TENNESSEE BUREAU OF W ORKERS’ COMPENSATION WORKERS’ COMPENSAT ION APPEALS BOARD

Mark Girardeau ) Docket No. 2018-02-0644 ) v. ) State File No. 15312-2018 ) Danny Herman Trucking, Inc., et al. ) ) and ) ) Rosemary Girardeau ) Docket No. 2018-02-0623 )

v. ) State File No. 15313-2018 ) Danny Herman Trucking, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Brian K. Addington, Judge )

Affirmed and Remanded

In these consolidated interlocuto ry appeals, the employees assert that they are entitled to Tennessee workers’ compensation benefits. The employer argues th e employees elected to pursue benefits in another state and cannot now seek Tenness ee benefits pursuant to Tennessee’s election of remedies doctrine. In response, the employees contend the employer is estopped from claiming a binding election of remedi es because it initiated and paid benefits under Tennessee law before any documents were filed in another state seeking benefits there. Following an evidentiary hearing, the trial court denied the employees’ request for Tennessee benefits, concluding the employ ees knowingly and willingly pursued benefits in anot her state and are not likely t o succeed in establishing an entitlement to Tennessee benefits. The employees have appealed. Having carefully reviewed the record, we affirm the trial court’s orders and rem and the cases.

Judge Timothy W. Conner deliveredthe opinion of the Appeals Boar d in which Presiding Judge Marshall L. Davidson, III, an d Judge David F. Hensley joined

. Gregory H. Fuller, Brentwood, Tennessee, for the employees-appellants, Mark Girardeau and Rosemary Girardeau2 Richard R. Clark, Jr., Nashville, Tennessee, for the employer-app ellee, Danny Herman Trucking, Inc.

Factual and Procedural Background

This case involves two claims c onsolidated for appeal that were filed by a husband and wife driving team. Mark and Rosemary Girardeau (“Employees” ), residents of Georgia, drove a truck for Danny Herman Trucking, Inc. (“Employ er”), located in Johnson County, Tennessee. On February 4, 2018, Employees were driving a truck in Missouri for Employer when they were involved in a multi-car col lision. At the time of the accident, Mr. Girardeau was driving and Mrs. Girardeau was in the sleeping compartment. Both complained of neck and back pain and other s ymptoms stemming from the accident.

Following the accident, Employees received initial medical care in Missouri. Soon thereafter, Employer sent a letter to Employees advising th em that their claims for workers’ compensation benefits w ere being handled under Tenness ee law because “[r]egardless of where employees claim a residence, employees are subject to Tennessee Workers’ Compensation Jurisdiction and Laws.” On or about March16, 2018, Employees signed Tennessee Choice of Physician forms (Form C-42) selecting Dr. Dmitri Sofianos, a physician located near their Georgia residence, as their authorized physician. Following their first visit with Dr. Sofianos, they wer e restricted from driving, lifting, or bending. As a result, Employees began receiving tem porary total disability benefits pursuant to Tennessee law, and Employer filed a First Report of Payment form with the Tennessee Bureauof Workers’ Compensation.

Thereafter, two events occurred th at gave rise to the current d ispute. First, Employees received notice from Employer that they were being of fered light duty work at a local non-profit organiza tion. Mr. Girardeau testified he did not believe he could return to any type of work giv en his driving restriction. Beca use the accident giving rise to their claims occurred in Miss ouri, Employees had retained Mi ssouri counsel to represent them with respect to any personal injury claims. After receiving the letter regarding the return-to-work a ssignment, Mr. Girardeau contacte d his Missouri personal injury attorney and ask ed whether that firm could assist him wi th a workers’ compensation issue. Employees wer e referred to another attorneyin that firm who handled workers’ compensation matters. Apparently, unbeknownst to Employees, this attorney contacted the Missouri Di vision of Workers’ Compensatio n to seek relief from the return-to-work assignment. 1 However, because Dr. Sofianos modified his work restrictions to restrict them fro m any work, this issue was not pursued further.

1 The record is unclear as to whether the Missouri attorney filedclaims for compensation with the Missouri Division of Workers’ Co mpensation in response to the d ispute regarding the return-to-work assignment or the subsequent dispute involving Employer’s requestfor medical examinations.3 Next, Employer informed Employees they were to be evaluated by another physician, Dr. William Dasher. E mployees objected to this requ est because Dr. Dasher’s office was located more than one hundred miles from their resid ence and because they were satisfied with Dr. Sofianos’s care. Mr. Girardeau contact ed his Missouri attorney, who again sought relief from the Missouri Division of Workers’ Compensation. According to Employees’ affidavits , their Missouri attorney file d documents with the Missouri Division of Workers’ Compensation and attended a “hard ship hearing” on May 31, 2018, following which a Miss ouri workers’ compensation judg e ordered them to attend the medical evaluation with Dr. Dasher.

On January 18, 2019, Employees filed requests for expedited hearings in the Tennessee Court of Workers’ Compensation Claims. In addition, on February 21, 2019, upon Employees’ motion, the Missouri Division of Workers’ Compe nsation entered orders of dismissal without prejudice as to Employees’ claims, which were identified as “Claims for Compensation.” 2 In response to Employee’s requests for an expedited hearing in Tennessee, Employer took the position that Employees knowingly and willingly elected to pursue benef its in Missouri and were there fore precluded from seeking benefits in Tennessee. E mployees responded that they n ever knowingly sought or received benefits in Missouri but merely retained a Missouri attorney to respond to certain demands from Employer. They denied having any knowledge that their Missouri attorney filed documents with the Missouri Division of Workers’ Compensation that could be interpreted as “claims f or compensation.” Moreover, E mployees argued that Employer should be estopped from asserting an election of remedie s defense because it had already initiated benefits in Tennessee.

Following an expedited hearing, t he trial court concluded Emplo yees had not shown they were likely to prevail in pursuing Tennessee benefit s because, based on the preponderance of the available evidence, they had taken affirmat ive steps to pursue benefits in Missouri. The trial court denied Employees’ requests for additional benefits under Tennessee law. Em ployees have appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision pre sumes that the court’s factual findings are correct unless the preponderance o f the evidence is otherwise. See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the opportunity to observe a witness’s demeanor and to hear in-cour t testimony, we give considerable deference to factual findings made by the trial co urt. 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 upo n documentary evidence.” Goodman v. Schwarz Paper Co. , No. W2016-02594-SC-R3-WC , 2018 Tenn. LEXIS 8, at

2 The “Claims for Compensation” filed in Missouri were not includ ed in the record.4 *6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of statutes and regu lations are questions of law th at are reviewed de novo with no presumption of correctness afforded the trial court’s conclu sions. 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’ compens ation statutes “fairly, impartially, and in accordance wi th basic principles of statuto ry construction” and in a way that does not favor either the employee or the employer. T enn. Code Ann. § 50-6- 116 (2018).

Analysis

Employees raise three issues on appeal: (1) whether the trial c ourt erred in concluding Employees made a bind ing election of remedies to pur sue Missouri benefits; (2) whether the trial court erred in failing to apply the equita ble estoppel doctrine based on Employer’s voluntary initiation of benefits in Tennessee; an d (3) whether the trial court erred in excluding from ev idence an email from Employer’s counsel purportedly explaining the basis of Employe r’s decision to discontinue temp orary disability benefits.

Election of Remedies

It is well established that an employee can waive his or her rig ht to pursue workers’ compensation benefits under Tennessee law in circumstances where the employee elects to pursue benefits under the laws of another sta te. See, e.g.
, Bradshaw v. Old Republic Ins. Co. , 922 S.W.2d 503, 504 (Tenn. 1996); Tidwell v. Chattanooga Boiler & Tank Co. , 43 S.W.2d 221, 223 (Tenn. 1931). In order to make such an el ection, the employee must have “(a) affirmatively acted to obtain benefits in another state; or (b) knowingly and voluntarily accepte d benefits under the law of an other state.” Eadie v. Complete Co. , 142 S.W.3d 288, 291 (Tenn. 20 04). The “mere acceptance of be nefits” under the laws of another state, without proof that it was a kn owing and voluntary acceptance, is insufficient to showa binding election of remed ies. Perkins v. BE & K, Inc. , 802 S.W.2d 215, 217 (Tenn. 1990).

In Russell v. Transco Lines, Inc. , No. E2015-02509-SC- R3-WC, 2017 Tenn. LEXIS 393 (Tenn. Workers’ Comp. Panel June 20, 2017), the emplo yees were a husband and wife truck-driving team from Tennessee workin g for a companybased in Arkansas. Id. at *1. They were injured in a m otor vehicle collision in Louis iana, and the employer voluntarily initiated benef its under Arkansas law. Id. at *1-2. When the employees pursued a workers’ compensation c laim in Tennessee, the employe r objected on the basis that the Tennessee court did not have jurisdiction and that the employees had elected to receive benefits under Arkansas law. Id. In arguing that the employees made a binding election of remedies, the employer pointed to actions of the em ployees’ attorney’s paralegal, who had sent emails to the employer’s counsel inquir ing about Arkansas workers’ compensation procedures. Id. at *23. The Special Workers’ Compensation5 Appeals Panel rejected the employer’s arguments, holding that the employees did not make a binding election of remed ies because: (1) they were not consulted before Arkansas benefits were initiated; (2) they signed no documents p ertaining to Arkansas workers’ compensation benefits; and (3) they took no affirmative action to pursue Arkansas benefits. Id. at *24.

On the other hand, in Eadie , the employee filed a claim for benefits in South Carolina, requested a hearing inSouth Carolina, and his attorn ey took depositions in that action. Eadie , 142 S.W.3d at 289. Under such circumstances, the Tennessee Su preme Court concluded a binding election of remedies had occurred that precluded him from seeking benefits in Tennessee. Id. at 291-92; see also Clevinger v. Burlington Motor Carriers, Inc. , No. 03S01-9508-CV-00092, 1996 Tenn. LEXIS 462, at *11 (Tenn. Workers’ Comp. Panel July 10, 1996) (an employee’s signing of an“Agreement for Compensation” under Virginia law constituted a binding electionof remedies).

In the present case, following the initiation of Tennessee bene fits, Employees sought counsel from their Missour i attorneys regarding disputes over their workers’ compensation claims. The proof presented at the expedited hear ing indicate Employees’ Missouri attorneys filed “Claim s for Compensation” with the Mis souri Division of Workers’ Compensation, requested and attended a “hardship heari ng” in Missouri, and received a decision from a Missouri judge compelling Employees to attend a medical evaluation. 3 Such proof is closer to the facts in Eadie than those in Russell . Accordingly, we conclude the preponderance of the evidence supports the trial court’s determination that Employees have not shown they are likely to prevail at tri al in establishing an entitlement to Tennessee benefits.

Equitable Estoppel

Employees next argue that because Employer began paying Tenness ee benefits, it is estopped from asserting that Employees later made a binding election to pursue benefits in another state. In support of this proposition, Emp loyees cite prior cases in which the equitable estoppel doc trine has been applied to worke rs’ compensation cases where the employer asserted the expiration of the statute of li mitations. See, e.g.
, American Mut. Liability Ins. Co. v. Baxter , 357 S.W.2d 825 (Tenn. 1962) (employer is estopped from asserting a statute of limitations defense where t he injured employee justifiably relies on a misrepresentation or concealment of a material fact on the part of the employer). The cases cited by Employee stand for the proposi tion that a party, who by language or conduct entices another party to take action or fail to take action, cannot then rely on that party’s action or inaction to defend the claim. Saylor v. Trotter , 255

3 Because “[l]awyers are agents and have prima facie authority to speak for their client through pleadings and negotiations,” parties are ge nerally bound by the actions o f their attorneys. Simmons v. O’Charley’s

, 914 S.W.2d 895, 902 (Tenn. Ct. App. 1995).6 S.W. 590, 593 (Tenn. 1923). The doctrine is premised on the ide a that parties should “deal honestly and fairly ” with other parties. Id.

However, Employees have cited no cases, and we have found none, in which the equitable estoppel doctrine has been applied against an employe r in a case involving an election of remedies defense. Moreover, there is a distinguish ing characteristic between the cases cited by Employees and the present case. Here, Emplo yees have not alleged that Employer engaged in misre presentation or concealment with respect to Employee’s election of remedies. There is no allegation that Employer ent iced Employees to consult attorneys in Missouri or file do cuments with the Missouri Divisi on of Workers’ Compensation. Moreover, there is no proof that Employer sought the “hardship hearing” under Missouri law or compelled Employees’ attorneys to attend suc h a hearing. As noted by the trial court, it is Employee’s election of remedies , not Employer’s. The mere fact that Employer initiated benefits in Tennessee did not in a ny way entice Employees to take action in Missouri. Thus , we find no merit to Employee’s arguments on this issue.

Exclusion of Evidence

Finally, Employees argue the trial court erred in excluding fro m evidence an email written by Employer’s attorney that purportedly explained the b asis for Employer’s decision to terminate or suspend Tennessee benefits. Employees argue that the email “should have been admitted as evi dence at the Expedited Hearing to support the Employee’s claims that the Employer/Insurance Carrier had actedin bad faith and wrongfully denied temporary di sability benefits under Tennessee law.”

In the present case, the issues of jurisdiction and election of remedies were threshold issues. Because the trial court determined that Empl oyees were not likely to succeed in establishing entitlement to any additional Tennessee benefits, it was unnecessary for the trial court to address whether Employer haddenied additional Tennessee benefits “in bad faith.” As a result, the email in ques tion, whether properly excluded or not, was irrelevant to the trial court’s ultimate d ecision. Because we affirm the trial court’s decision to deny additional Tennessee benefit s at this stage of the litigation, we conclude that the evidentiary issue raised by Em ployees is pretermitted.

Conclusion

For the foregoing reasons, the trial court’s order is affirmed, and the case is remanded. Costs on appeal are taxed to Employees.TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSATION APPEALS BOARD

Mark Girardeau ) Docket No. 2018-02-0644 )

v. ) State File No. 15312-2018 ) Danny Herman Trucki ng, Inc., et al. ) ) and ) ) Rosemary Girardeau ) Docket No. 2018-02-0623 )

v. ) State File No. 15313-2018 ) Danny Herman Trucki ng, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Brian K. Addington, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Bo ard’s decision in the referenced case was sent to the following recipients by the fol lowing methods of service on this the 16th day of July, 2019.

Name Certified Mail First Class Mail Via Fax Fax Number Via Email Sent to:

Gregory H. Fuller X g hfuller@mijs.com

r ce dens@mijs.com Richard R. Clark, Jr. X rclark@eraclides.com Brian K. Addington , Judge X Via Electronic Mail Kenneth M. Switzer , Chief Judge X Via Electronic Mail Penny Shrum, Clerk, Court of Workers’ Compensation Claims X penny.patterson-shrum@tn.gov

Jeanette Baird Deputy Clerk, Workers’ C ompensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-0064 Electronic Mail: WCAppeals.Clerk@tn.gov J eanette Bai r d