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...