Bilbrey v. Active USA, LLC, 061720 TNWC, M2019-00720-SC-R3-WC

Case DateJune 17, 2020
CourtTennessee
MACK BILBREY
v.
ACTIVE USA, LLC ET AL.
No. M2019-00720-SC-R3-WC
Tennessee Workers Compensation
Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, Nashville
June 17, 2020
         Session : May 11, 2020.          Appeal from the Chancery Court for Trousdale County No. 7355Charles K. Smith, Chancellor          This workers’ compensation appeal requires us to determine whether Employee elected to receive workers’ compensation benefits pursuant to Texas law and is, therefore, precluded from recovering in Tennessee under the doctrine of election of remedies. The trial court applied the election of remedies doctrine based on the Employee’s filing of a Texas Department of Insurance, Division of Workers’ Compensation Form-041, titled “Employee’s Claim for Compensation for a Work-Related Injury or Occupational Disease” (“Claim for Compensation”) with the Texas Department of Insurance (“TDI”), his filing of a “Request to Schedule, Re-Schedule, or Cancel a Benefit Review Conference (BRC)” (“Request to Schedule a Benefit Review Conference” or “Request”) with the TDI, his consultation with an ombudsman in the Texas Office of Injured Employee Counsel, and his “knowing and voluntary” acceptance of temporary total and medical benefits issued pursuant to Texas law. The trial court therefore determined that Employee was precluded from recovering workers’ compensation benefits in Tennessee. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. After careful consideration, we affirm the judgment of the trial court.          Tenn. Code Ann. § 50-6-225(e)(1) (2014) (applicable to injuries occurring prior to July 1, 2014) Appeal as of Right; Judgment of the Chancery Court Affirmed           Rocky McElhaney and Justin Hight, Nashville, Tennessee, for the appellant, Mack Bilbrey, Jr.           Mark A. Baugh, Nashville, Tennessee, for the appellees, Active USA, LLC and Gallagher Bassett Services, Inc.           Andy D. Bennett, J., delivered the opinion of the court, in which Cornelia A. Clark, J., and William B. Acree, Jr., Sr. J., joined.          OPINION           ANDY D. BENNETT, JUDGE          Factual and Procedural Background [1]          Mack Bilbrey, Jr. (“Employee”), a resident of Hartsville, Tennessee, worked as a truck driver for Active USA, LLC (“Employer”), which has its principal office in Pleasant Prairie, Wisconsin. Employee initially worked for Employer as a truck driver based out of Madison, Tennessee in 2005 but was laid off approximately one year later. As a truck driver, Employee was responsible for delivering and unloading semi-trucks. In 2011, Employee resumed his employment as a truck driver with Employer, this time based out of a terminal located in Denton, Texas. Otherwise, his job duties were the same as they had been previously.          The parties do not dispute that Employee sustained a back injury in Florida during the course and scope of his employment with Employer on Friday, October 13, 2012. Employer completed a form titled “Employer’s First Report of Injury or Illness” on October 15, 2012. According to Employee, he never saw this form and was not aware of “whether [Employer] had filed a first report of work injury for [him].” On October 26, 2012, Employee completed, with his wife’s assistance,2 a Claim for Compensation with the Texas Department of Insurance, Division of Workers’ Compensation. Employee had not previously filed a workers’ compensation claim.          When shown the Claim for Compensation by his counsel during trial, Employee stated that a friend who also worked for Employer, Mr. Wiley Moore, “told [Employee he] needed to get some papers, and he faxed [Employee] some, and [the Claim for Compensation form] could have been one of them.” The Employee further testified that no one, “whether [his] employer, workers’ compensation [insurance] carrier or anyone[,]” had explained to him what the Claim for Compensation meant, the legal implications it could have, that Employee could have brought his workers’ compensation claim in another state, that his benefits could differ based on the state he pursued a claim in, or that one state’s benefits could be more favorable than another’s. On cross examination, however, Employee made clear that no one from Employer or Employer’s insurance carrier’s third-party administrator, Gallagher Bassett Services, Inc. (“Gallagher Bassett”), sent Employee the Claim for Compensation. While undergoing treatment for his injury, Employee received...

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