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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION 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 interlocutory appeals, the employees assert that they are entitled to 

Tennessee workers’ compensation benefits. The employer argues the employees elected 

to pursue benefits in another state and cannot now seek Tennessee benefits pursuant to 

Tennessee’s election of remedies doctrine. In response, the employees contend the 

employer is estopped from claiming a binding election of remedies 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 employees knowingly and 

willingly pursued benefits in another state and are not likely to 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 remand the cases.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding 

Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

Gregory H. Fuller, Brentwood, Tennessee, for the employees-appellants, Mark Girardeau 

and Rosemary Girardeau
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Richard R. Clark, Jr., Nashville, Tennessee, for the employer-appellee, Danny Herman 

Trucking, Inc.

Factual and Procedural Background

This case involves two claims consolidated 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. (“Employer”), 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 collision. 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 symptoms stemming 

from the accident.

Following the accident, Employees received initial medical care in Missouri.

Soon thereafter, Employer sent a letter to Employees advising them that their claims for 

workers’ compensation benefits were being handled under Tennessee law because 

“[r]egardless of where employees claim a residence, employees are subject to Tennessee 

Workers’ Compensation Jurisdiction and Laws.” On or about March 16, 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 were restricted from driving, 

lifting, or bending. As a result, Employees began receiving temporary total disability 

benefits pursuant to Tennessee law, and Employer filed a First Report of Payment form

with the Tennessee Bureau of Workers’ Compensation.

Thereafter, two events occurred that gave rise to the current dispute. First, 

Employees received notice from Employer that they were being offered light duty work 

at a local non-profit organization. Mr. Girardeau testified he did not believe he could 

return to any type of work given his driving restriction. Because the accident giving rise 

to their claims occurred in Missouri, Employees had retained Missouri counsel to 

represent them with respect to any personal injury claims. After receiving the letter 

regarding the return-to-work assignment, Mr. Girardeau contacted his Missouri personal 

injury attorney and asked whether that firm could assist him with a workers’ 

compensation issue. Employees were referred to another attorney in that firm who 

handled workers’ compensation matters. Apparently, unbeknownst to Employees, this 

attorney contacted the Missouri Division of Workers’ Compensation to seek relief from 

the return-to-work assignment.1 However, because Dr. Sofianos modified his work 

restrictions to restrict them from any work, this issue was not pursued further.

1 The record is unclear as to whether the Missouri attorney filed claims for compensation with the 

Missouri Division of Workers’ Compensation in response to the dispute regarding the return-to-work 

assignment or the subsequent dispute involving Employer’s request for medical examinations.
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Next, Employer informed Employees they were to be evaluated by another 

physician, Dr. William Dasher. Employees objected to this request because Dr. Dasher’s 

office was located more than one hundred miles from their residence and because they 

were satisfied with Dr. Sofianos’s care. Mr. Girardeau contacted his Missouri attorney, 

who again sought relief from the Missouri Division of Workers’ Compensation.

According to Employees’ affidavits, their Missouri attorney filed documents with the 

Missouri Division of Workers’ Compensation and attended a “hardship hearing” on May 

31, 2018, following which a Missouri workers’ compensation judge 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’ Compensation 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 benefits in Missouri and were therefore precluded from 

seeking benefits in Tennessee. Employees responded that they never 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 for compensation.” Moreover, Employees argued that 

Employer should be estopped from asserting an election of remedies defense because it 

had already initiated benefits in Tennessee.

Following an expedited hearing, the trial court concluded Employees had not 

shown they were likely to prevail in pursuing Tennessee benefits because, based on the 

preponderance of the available evidence, they had taken affirmative steps to pursue 

benefits in Missouri. The trial court denied Employees’ requests for additional benefits 

under Tennessee law. Employees have appealed.

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) (2018). 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 

2 The “Claims for Compensation” filed in Missouri were not included in the record.
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*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 (2018).

Analysis

Employees raise three issues on appeal: (1) whether the trial court erred in 

concluding Employees made a binding election of remedies to pursue Missouri benefits; 

(2) whether the trial court erred in failing to apply the equitable estoppel doctrine based 

on Employer’s voluntary initiation of benefits in Tennessee; and (3) whether the trial 

court erred in excluding from evidence an email from Employer’s counsel purportedly 

explaining the basis of Employer’s decision to discontinue temporary disability benefits.

Election of Remedies

It is well established that an employee can waive his or her right to pursue 

workers’ compensation benefits under Tennessee law in circumstances where the 

employee elects to pursue benefits under the laws of another state. 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 election, the 

employee must have “(a) affirmatively acted to obtain benefits in another state; or (b) 

knowingly and voluntarily accepted benefits under the law of another state.” Eadie v. 

Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004). The “mere acceptance of benefits” 

under the laws of another state, without proof that it was a knowing and voluntary 

acceptance, is insufficient to show a binding election of remedies. 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 employees were a husband 

and wife truck-driving team from Tennessee working for a company based in Arkansas. 

Id. at *1. They were injured in a motor vehicle collision in Louisiana, and the employer 

voluntarily initiated benefits under Arkansas law. Id. at *1-2. When the employees 

pursued a workers’ compensation claim in Tennessee, the employer 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 employees’ attorney’s 

paralegal, who had sent emails to the employer’s counsel inquiring about Arkansas 

workers’ compensation procedures. Id. at *23. The Special Workers’ Compensation 
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Appeals Panel rejected the employer’s arguments, holding that the employees did not 

make a binding election of remedies because: (1) they were not consulted before 

Arkansas benefits were initiated; (2) they signed no documents pertaining 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 in South Carolina, and his attorney took depositions in that 

action. Eadie, 142 S.W.3d at 289. Under such circumstances, the Tennessee Supreme 

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 election of remedies).

In the present case, following the initiation of Tennessee benefits, Employees 

sought counsel from their Missouri attorneys regarding disputes over their workers’ 

compensation claims. The proof presented at the expedited hearing indicate Employees’ 

Missouri attorneys filed “Claims for Compensation” with the Missouri Division of 

Workers’ Compensation, requested and attended a “hardship hearing” 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 trial in establishing an 

entitlement to Tennessee benefits. 

Equitable Estoppel

Employees next argue that because Employer began paying Tennessee benefits, it 

is estopped from asserting that Employees later made a binding election to pursue 

benefits in another state. In support of this proposition, Employees cite prior cases in 

which the equitable estoppel doctrine has been applied to workers’ compensation cases 

where the employer asserted the expiration of the statute of limitations. 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 the 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 proposition 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 generally bound by the actions of their attorneys. Simmons v. O’Charley’s,

914 S.W.2d 895, 902 (Tenn. Ct. App. 1995).
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S.W. 590, 593 (Tenn. 1923). The doctrine is premised on the idea 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 employer in a case involving an 

election of remedies defense. Moreover, there is a distinguishing characteristic between 

the cases cited by Employees and the present case. Here, Employees have not alleged 

that Employer engaged in misrepresentation or concealment with respect to Employee’s 

election of remedies. There is no allegation that Employer enticed Employees to consult 

attorneys in Missouri or file documents with the Missouri Division of Workers’ 

Compensation. Moreover, there is no proof that Employer sought the “hardship hearing” 

under Missouri law or compelled Employees’ attorneys to attend such 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 any 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 from evidence an email 

written by Employer’s attorney that purportedly explained the basis for Employer’s 

decision to terminate or suspend Tennessee benefits. Employees argue that the email 

“should have been admitted as evidence at the Expedited Hearing to support the 

Employee’s claims that the Employer/Insurance Carrier had acted in bad faith and 

wrongfully denied temporary disability 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 Employees were not likely to 

succeed in establishing entitlement to any additional Tennessee benefits, it was 

unnecessary for the trial court to address whether Employer had denied additional 

Tennessee benefits “in bad faith.” As a result, the email in question, whether properly 

excluded or not, was irrelevant to the trial court’s ultimate decision. Because we affirm 

the trial court’s decision to deny additional Tennessee benefits at this stage of the 

litigation, we conclude that the evidentiary issue raised by Employees 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 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 ) 

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 16th day of July, 2019. 

Name Certified 

Mail

First 

Class 

Mail

Via 

Fax

Fax 

Number 

Via 

Email

Sent to: 

Gregory H. Fuller X ghfuller@mijs.com

rcedens@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’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243

Telephone: 615-253-0064

Electronic Mail: WCAppeals.Clerk@tn.gov

Jeanette Baird