The opinion
FILED
Apr 23, 2019
12:32 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
MARK GIRARDEAU, ) Docket No.: 2018-02-0644
Employee, )
v. )
DANNY HERMAN TRUCKING, ) State File No.:15312-2018
INC., )
Employer, )
and )
CHEROKEE INS. CO., ) Judge Brian K. Addington
Carrier. )
EXPEDITED HEARING ORDER
This matter came before the undersigned Workers' Compensation Judge on April
15, 2019, for an Expedited Hearing. The threshold issue is whether Mr. Girardeau
elected a remedy in another state. For the reasons below, the Court holds at this time that
he elected his remedy in Missouri and is not entitled to benefits in Tennessee.
CLAIM HISTORY
Danny Herman Trucking, a Tennessee corporation, entered into an employment
agreement in Tennessee with Mr. Girardeau, a Georgia resident. Mr. Girardeau suffered
injuries in a multi-vehicle accident in Missouri on February 4, 2018. He notified Danny
Herman of the incident and received emergency treatment in Missouri.
When it received notice, Danny Herman sent Mr. Girardeau a letter informing him
that it intended to administer the claim under Tennessee law. 1 Later, it sent him a series
of Tennessee Choice of Physician forms and started paying temporary disability benefits.
Eventually, he chose Dr. D'Mitri Sofianos, who recommended conservative treatment for
his lumbar spine and fusion of his cervical spine.
1
Danny Herman filed a First Report of Injury and Notice of First Payment of Compensation with the
Bureau.
1
After Dr. Sofianos' recommendations, Danny Herman directed Mr. Girardeau to
Dr. William Dasher, but he did not want to see Dr. Dasher due to the distance from his
home. He previously retained a Missouri attorney to assist him in a personal injury
action due to the Missouri accident, so he asked that attorney to help him with the issue
concerning Dr. Dasher. The Missouri attorney requested attorney Nikki Kinder file a
Claim for Compensation with the Missouri Division of Workers' Compensation
(MDWC) on Mr. Girardeau's behalf; she did so on April26. The MDWC judge ordered
him to see Dr. Dasher.
Dr. Dasher first saw Mr. Girardeau on June 6. Dr. Dasher did not recommend
surgery. He placed him at maximum medical improvement on August 9 and requested a
functional capacity evaluation.
Following Dr. Dasher's treatment, Mr. Girardeau filed a Petition for Benefit
Determination with the Tennessee Bureau of Workers' Compensation on November 30
seeking to return to Dr. Sofianos. Before the mediator issued the Dispute Certification
Notice, he added temporary disability benefits to the issues he wanted the Court to
address because Danny Herman stopped paying temporary disability benefits mid-
December.
Once the mediator issued the DCN, Mr. Girardeau attempted to schedule an
expedited hearing, but the Court issued a stay when it discovered he still had an active
Claim for Compensation with the MDWC. Mr. Girardeau filed a motion for dismissal
with the MDWC, which the MDWC granted without prejudice on February 21, 2019.
For his part, Mr. Girardeau asserted he made a binding election of remedies when
he selected panel physicians from the Tennessee Choice of Physician form. Further,
Danny Herman told him that it would administer his claim under Tennessee law. He
argued the claim he filed with the MDWC was not a claim for benefits but rather an
attempt to require Danny Herman to return him to Dr. Sofianos. He requested past and
ongoing temporary benefits and additional medical benefits with Dr. Sofianos.
Danny Herman asserted Mr. Girardeau made a binding election to seek benefits in
Missouri. Even if he did not, he did not prove his need for treatment primarily arose
from his employment.
CONCLUSIONS OF LAW
Mr. Girardeau need not prove every element of his claim by a preponderance of
the evidence to obtain relief at an expedited hearing. Instead, he must present sufficient
evidence that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(l) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
2
The dispositive issue is whether Mr. Girardeau chose Missouri as the forum to
pursue his claim. The Court holds that he did.
It is not an employer's decision to determine an employee's remedy. Rather, an
injured worker may elect his remedy when there is a choice of jurisdiction. Here, Danny
Herman filed the appropriate Tennessee forms and began paying benefits that Mr.
Girardeau accepted.
Against that backdrop, the Court does not consider Mr. Girardeau's acceptance of
the benefits Danny Herman paid a binding election of his remedies. He merely accepted
the benefits that Danny Herman provided. Only when an issue arose, did Mr. Girardeau
take action on his claim. He contacted his Missouri tort attorney, discussed the issue, and
as a result Attorney Kinder filed a Claim for Compensation with the MDWC. Missouri
did not deny jurisdiction and ordered him to treat with Dr. Dasher. He then received
medical treatment by Dr. Dasher per the Missouri order.
Tennessee law is clear that once an employee actively pursues a claim in a venue
that has jurisdiction, that employee is barred from filing a later claim in Tennessee. See
Gray v. Holloway Constr. Co., 834 S.W.2d 277, 281-2 (Tenn. 1992)
Here, the Court has limited information about the MDWC proceedings, but
considering the information currently available, the Court holds Mr. Girardeau made a
binding election for a Missouri remedy and is not likely to succeed at a hearing on the
merits in proving he is entitled to a remedy in Tennessee. Thus, the Court reserves the
issues of medical and temporary disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Girardeau's request for benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on June 6, 2019, at 2:00p.m. Eastern
Time. You must call toll-free at 855-543-5044 to participate in the Hearing.
Failure to call may result in a determination of the issues without your
participation.
ENTERED this the 23rd day of April, 2019.
IS/ Brian K. Addington
BRIAN K. ADDINGTON, JUDGE
Court of Workers' Compensation Claims
3
Exhibits
1. a. Affidavit of Mark Girardeau
b. Affidavit of Rosemary Girardeau
2. a. Physician Panels for Mark Girardeau
b. Physician Panels for Rosemary Girardeau
3. a. Missouri Department of Labor Order of Dismissal for Mark Girardeau
b. Missouri Department of Labor Order of Dismissal for Rosemary Girardeau
4. Driver Physical Requirements form.
5. Letter from Danny Herman Trucking, Inc.
6. a. First Report of Payment for Mark Girardeau
b. First Report of Payment for Rosemary Girardeau
7. a. First Report of Injury for Mark Girardeau
b. First Report of Injury for Rosemary Girardeau
8. Offer of Alternative Modified Work for Mark Girardeau
9. Offer of Alternative Modified Work for Rosemary Girardeau
10. Medical Records
a. Optim Orthopedics
b. Family Internal Medicine Associates
c. Lake Regional Occupational Medicine
d. Effingham Health System
e. Chatham Orthopedic Associates
f. OrthoGeorgia
g. Jack Strickland Rehabilitation Center
h. BTl-Functional Capacity Evaluation
11. Identification Purposes Only-Email dated February 8, 2019
Technical Record
1. a. Petition for Benefit Determination-1113 0/2018-Mark Girardeau
b. Petition for Benefit Determination-1116/2019-Mark Girardeau
c. Petition for Benefit Determination-11120/20 18-Rosemary Girardeau
d. Petition for Benefit Determination-1116/2019-Rosemary Girardeau
2. a. Dispute Certification Notice-119/2019-Mark Girardeau
b. Dispute Certification Notice-1130/20 19-Mark Girardeau
c. Dispute Certification Notice-119/2019-Rosemary Girardeau
d. Dispute Certification Notice-1130/2019-Rosemary Girardeau
3. a. Request for Expedited Hearing-Mark Girardeau
b. Request for Expedited Hearing-Rosemary Girardeau
4. Motion to Consolidate and Set Expedited Hearing
5. Response to Motion to Consolidate
6. Supplemental Response to Motion to Set Expedited Hearing
7. Motion for Transfer of Venue
4
8. Response to Employer's Motion for Transfer of Venue
9. Order Temporarily Staying Proceedings
10. Motion to Lift Temporary Stay of Proceedings and Set Expedited Hearing
11. Order Lifting Temporary Stay of Proceedings
12. Employer's Witness and Exhibit List
13. Employee's Witness and Exhibit List
14. Employer's Pre-Hearing Statement
15 . a. Expedited Hearing Brief of Mark Girardeau
b. Expedited Hearing Brief of Rosemary Girardeau
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on April23, 2019.
Name Certified Fax Email Service sent to:
Ryan Edens, X rcedens@mijs.com
Employees' Attorney ghfuller@mij s.com
Richard Clark, X rclark@eraclides.com
Employer's Attorney lrayhall@eraclides.com
Mark Girardeau, X P.O. Box 100
Employee Register, GA 30452
5
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082