                                                                                   FILED
                                                                                  Jul 31, 2019
                                                                                 03:11 PM(CT)
                                                                                  TENNESSEE
                                                                             WORKERS' COMPENSATION
                                                                                APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Charles R. Goodwin                           )   Docket No. 2017-03-1235
                                             )
v.                                           )   State File No. 80097-2017
                                             )
Morristown Driver’s Services, Inc., et al.   )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Lisa A. Lowe, Judge                          )

                                Reversed and Remanded

In this interlocutory appeal, the employer challenges the trial court’s denial of its motion
for summary judgment, which was based on the election of remedies doctrine. The
employee, a Georgia resident, alleged injuries as a result of a work-related motor vehicle
accident that occurred in Tennessee. The Tennessee employer filed a Tennessee First
Report of Injury and paid for the employee’s emergency medical care in Tennessee, but
subsequently denied benefits based on a dispute as to causation. The employee retained
counsel and filed a claim for workers’ compensation benefits in Georgia. After
conducting extensive discovery in the Georgia claim, the employee filed a petition for
benefits in Tennessee but continued to pursue his claim in Georgia. Following a hearing
before the Georgia State Board of Workers’ Compensation, the claim was dismissed for
lack of subject matter jurisdiction. After the employee filed an amended petition seeking
benefits in Tennessee, the employer filed a motion for summary judgment asserting the
employee’s Tennessee claim was barred because he had made a binding election of
remedies by pursuing his claim in Georgia. Concluding that the Georgia dismissal did
not address the merits of the employee’s claim, the trial court denied the employer’s
motion. The employer has appealed. Having carefully reviewed the record, we reverse
the trial court’s decision and remand the case for entry of an order granting the
employer’s motion for summary judgment.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, joined, concurring separately. Judge Timothy W.
Conner dissented.

Daniel I. Hall and Brian Rife, Bristol, Tennessee, for the employer-appellant, Morristown
Driver’s Services, Inc.

                                             1
John A. Willis, Clinton, Tennessee, for the employee-appellee, Charles R. Goodwin

                          Factual and Procedural Background

       Charles Goodwin (“Employee”), a Georgia resident, was hired in Tennessee as a
driver for Morristown Driver’s Services, Inc. (“Employer”), a Tennessee company. On
November 3, 2016, Employee was involved in a motor vehicle accident in Tennessee
while in the course and scope of his employment. Employer provided emergency
medical care in Tennessee and filed a Tennessee First Report of Injury. However,
Employer later denied further workers’ compensation benefits, asserting Employee did
not suffer a compensable injury arising out of his employment. Employee retained
counsel in Georgia and, on January 18, 2017, filed a form with the Georgia State Board
of Workers’ Compensation requesting a hearing to address the payment of medical
benefits and temporary disability benefits under the Georgia Workers’ Compensation
Law.

       The parties engaged in extensive discovery in connection with Employee’s
Georgia claim. Both parties submitted and responded to interrogatories and requests for
the production of documents, and Employee responded to Employer’s requests for
admissions. Further, Employer took Employee’s deposition, and Employee took the
deposition of Dr. Michael Gorum, Employee’s treating neurosurgeon, for the purpose of
presenting expert medical proof in the Georgia case.

       On October 19, 2017, while his Georgia case was being litigated, Employee filed a
petition for benefits in Tennessee. On January 12, 2018, a hearing was conducted in
Employee’s Georgia claim. At the hearing, Employee sought authorization for treatment
of conditions he alleged were caused by the November 2016 accident, temporary total
disability benefits, penalties for Employer’s alleged late payment of benefits, and
attorneys’ fees for what Employee contended was an unreasonable defense of his Georgia
claim. Employer defended the Georgia case, contending that Employee did not suffer
compensable injuries arising out of the November 2016 accident, that its defense of the
claim had been reasonable, and that Employee failed to carry his burden of establishing
Georgia had subject matter jurisdiction over his claim.

       On February 22, 2018, the Georgia State Board of Workers’ Compensation issued
an order dismissing Employee’s Georgia claim for lack of subject matter jurisdiction.
The order noted that Employee and Employer’s senior safety administrator testified at the
hearing and that “[e]ach party tendered medical records and other documentary evidence,
all of which were admitted and considered by the [judge],” including “[t]he testimony of
Dr. Michael Gorum [that] . . . was offered by deposition.” Further, the order noted that
“[a]fter the record closed at the conclusion of the hearing, the parties submitted briefs in
support of their respective positions,” and that “[t]he briefs and the entire record have
been considered in formulating this award.” The order offered no conclusion as to the

                                             2
compensability of Employee’s injury “due to lack of subject matter jurisdiction over the
claim.” Finally, the order stated that “[f]indings on all issues pertaining to the merits of
the Employee’s claim were Georgia jurisdiction later to obtain following an appeal of this
Award are RESERVED until time of later judicial determination, if necessary.” The
record is silent as to whether this order was appealed.

       Having lost his Georgia claim, Employee, in September 2018, filed an amended
petition for benefits in Tennessee. Employer responded by filing a motion for summary
judgment and a statement of material facts in accordance with Rule 56 of the Tennessee
Rules of Civil Procedure, asserting that the affirmative acts taken by Employee to obtain
workers’ compensation benefits in Georgia precluded his receiving benefits in Tennessee
pursuant to the election of remedies doctrine. Employee responded that, because Georgia
declined to exercise jurisdiction, no remedy was available to him in Georgia and,
therefore, the election of remedies doctrine did not apply.

       In denying Employer’s motion, the trial court noted “the parties agree that
[Employee] took affirmative action pursuing the Georgia case.” However, the court
concluded Employee had not been afforded the opportunity to have a hearing on the
merits of his case and had “established specific facts [upon which] the Court could base a
decision in his favor that the election-of-remedies doctrine does not apply to this case.”
Employer has appealed.

                                   Standard of Review

        A party is entitled to summary judgment only if the “pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The grant or denial of
a motion for summary judgment is an issue of law and, therefore, our standard of review
is de novo with no presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). As such, we must “make a fresh
determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied.” Id. at 250.

                                         Analysis

        Initially, we note Employee cites Tennessee Code Annotated section § 50-6-
217(a)(3) (2016) (repealed 2017) in support of his argument that the trial court’s decision
should be affirmed. Section 50-6-217(a)(3) authorized us to reverse or modify a trial
court’s decision if the rights of a party were prejudiced because the findings of the trial
judge were “not supported by evidence that is both substantial and material in light of the
entire record.” However, as we have observed on numerous occasions over the past two


                                             3
years, this code section was repealed effective May 9, 2017. 1 Consequently, the standard
we apply in reviewing the trial court’s decision presumes that the trial judge’s factual
findings are correct unless the preponderance of the evidence is otherwise. Tenn. Code
Ann. § 50-6-239(c)(7).

                                      Election of Remedies

       The underlying facts of this case are not disputed. Indeed, Employee’s response to
Employer’s statement of undisputed facts acknowledged that the facts contained in the
twenty-three separate statements asserted by Employer were undisputed. Based on these
undisputed facts, Employer asserts on appeal that it “affirmatively negated an element of
Employee’s claim and/or demonstrated that his evidence was insufficient as a matter of
law,” and that the trial court erred in declining to apply the election of remedies doctrine
to Employee’s Tennessee claim.

       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 and 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). However, 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).



1
  See, e.g., McLaurin v. AT&T Services, LLC, No. 2017-03-1133, 2019 TN Wrk. Comp. App. Bd. LEXIS
6, at *4-5 (Tenn. Workers’ Comp. App. Bd. Jan. 31, 2019); Bullard v. Facilities Performance Grp., No.
2017-08-1053, 2018 TN Wrk. Comp. App. Bd. LEXIS 37, at *5 (Tenn. Workers’ Comp. App. Bd. Aug.
7, 2018); Ledford v. Mid-Georgia Courier, Inc., No. 2017-01-0740, 2018 TN Wrk. Comp. App. Bd.
LEXIS 28, at *4 (Tenn. Workers’ Comp. App. Bd. June 4, 2018); Duignan v. Stowers Machinery Corp.,
No. 2017-03-0080, 2018 TN. Wrk. Comp. App. Bd. LEXIS 25, at *8-9 (Tenn. Workers’ Comp. App. Bd.
May 29, 2018); Ogden v. McMinnville Tool & Die, No. 2016-05-1093, 2018 TN Wrk. Comp. App. Bd.
LEXIS 14, at *9-10 (Tenn. Workers’ Comp. App. Bd. May 7, 2018); Edwards v. Fred’s Pharmacy, No.
2017-06-0526, 2018 TN Wrk. Comp. App. Bd. LEXIS 9, at *5-6 (Tenn. Workers’ Comp. App. Bd. Feb.
14, 2018); Bowlin v. Servall, LLC, No. 2017-07-0224, 2018 TN Wrk. Comp. App. Bd. LEXIS 6, at *6-7
(Tenn. Workers’ Comp. App. Bd. Feb. 8, 2018); Thompson v. Comcast Corp., No. 2017-05-0639, 2018
TN Wrk. Comp. App. Bd. LEXIS 1, at *12-13 (Tenn. Workers’ Comp. App. Bd. Jan. 30, 2018); Baker v.
Electrolux, No. 2017-06-0070, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at *5-6 (Tenn. Workers’
Comp. App. Bd. Oct. 20, 2017); Butler v. AAA Cooper Transp., No. 2016-07-0459, 2017 TN Wrk. Comp.
App. Bd. LEXIS 54, at *5-6 (Tenn. Workers’ Comp. App. Bd. Sept. 12, 2017); Glasgow v. 31-W
Insulation Co., No. 2017-05-0225, 2017 TN Wrk. Comp. App. Bd. LEXIS 51, at *11-12 (Tenn. Workers’
Comp. App. Bd. Sept. 6, 2017).
                                                 4
        Here, when Employer denied additional workers’ compensation benefits after
providing emergency medical treatment to Employee and filing a First Report of Injury in
Tennessee, Employee hired a Georgia attorney, filed a claim before the Georgia State
Board of Workers’ Compensation, and participated in discovery in the Georgia claim
before filing a petition for benefits in Tennessee in October 2017. Thereafter, Employee
obtained the deposition of the neurosurgeon with whom he had treated for the purpose of
presenting evidence in the Georgia claim, and he participated in the hearing of his
Georgia case, offering testimony and submitting documentary evidence to support his
claim for Georgia workers’ compensation benefits. Although he was ultimately
unsuccessful in establishing subject matter jurisdiction under Georgia law, the undisputed
purpose of the hearing was to address Employee’s entitlement to benefits under Georgia’s
workers’ compensation law as a result of the November 2016 motor vehicle accident. In
the order addressing the Georgia hearing, the judge offered “no conclusion on the
compensability of the Employee’s injury under Georgia law due to [a] lack of subject
matter jurisdiction over the claim.” Nonetheless, the judge stated in the order that
“[f]indings on all issues pertaining to the merits of the Employee’s claim” were reserved
for a later time “were Georgia jurisdiction later to obtain following an appeal.”

       Based on the actions taken by Employee in pursuit of Georgia workers’
compensation benefits, we conclude that Employee “affirmatively acted to obtain
benefits in another state” and, therefore, is precluded from pursuing a claim for workers’
compensation benefits in Tennessee as a result of the November 2016 motor vehicle
accident.

        Employee argues that his case is distinguishable from the Tennessee cases
applying the election of remedies doctrine in that, because Georgia did not have
jurisdiction of his claim, there was no election to be made. Employee relies on Gray v.
Holloway Construction Co., 834 S.W.2d 277 (Tenn. 1992) as support for his assertion
that pursuing a claim in what ultimately turns out to be the wrong jurisdiction does not
implicate the election of remedies doctrine. Employee’s case, however, is readily
distinguishable from Gray.

       In Gray, the employee suffered an injury in Texas. During the period he was off
work recuperating from his injury, he received temporary disability benefits from the
employer’s workers’ compensation carrier. The employee subsequently filed a notice of
his claim against the insurance carrier in Texas as required by Texas law. The carrier
continued providing benefits until the employee was able to return to work. At that time,
the employer sent the employee to work at a construction site in Tennessee. While
continuing to work for the employer at the Tennessee worksite, the employee suffered a
second injury. After notifying his employer of the second accident, the insurance
company that provided benefits for the Texas accident began paying benefits on the claim
arising out of the Tennessee accident. However, the insurance carrier did not know the
employee’s second injury occurred in Tennessee until the employee’s attorney filed the

                                            5
second claim in Texas. Because the insurance carrier’s coverage did not extend to
Tennessee, it ceased paying benefits upon learning the second accident occurred in
Tennessee and sent a letter to the Texas Accident Industrial Board and the employee’s
attorney, which read as follows:

       National Union is not the correct      workers’ compensation carrier. The
       [claimant] was injured on 10/3/86     in Columbia, Tennessee. The proper
       carrier for this location is           Royal Insurance . . . in Nashville,
       Tennessee. . . . This was confirmed   by Debra Dicanto, claims manager of
       Royal Insurance.

 Id. at 278.

        Subsequently, the employee’s attorney undertook to negotiate a settlement of the
Texas injury claim and turned over the Tennessee accident claim to a Tennessee attorney
who timely filed suit in Tennessee against the employer and Royal Insurance. The
attorney notified the Texas Board of the Tennessee case and later filed a formal request
that the previously scheduled hearing on the claim against National Union that was based
on the Tennessee accident be cancelled and “that no action be taken on this case at this
time.” Id.

        The Tennessee case was tried, resulting in an award to the employee. The
employer appealed, asserting the Tennessee claim was barred by the employee’s election
to pursue his remedy in Texas. The Tennessee Supreme Court affirmed the award,
stating that “the facts do not establish clear grounds for preclusion.” Id. at 280. Noting
that the employee initially received temporary disability benefits from the carrier that
provided coverage in Texas, the Court said “those payments were made voluntarily (and,
as it turns out, gratuitously), at a time when neither [the employee] nor his attorney knew
that National Union was not liable for the [Tennessee] injury, and the insurance company
did not know that the injury had occurred outside the geographical limits of its policy.”
Id. at 280-81. Further, the Court stated:

       [N]o payments were ever made by Royal Insurance, and, more importantly,
       no claim was ever filed against Royal Insurance, either with the Texas
       Industrial Accident Board or in the Texas courts. . . . Because the Texas
       claim against National Union is legally baseless, it cannot be said to be
       repugnant to or inconsistent with the [employee’s] Tennessee claim against
       Royal Insurance. Hence, under Tennessee law no “election of remedies” is
       required and, likewise, none has occurred.

Id. at 281 (emphasis added). In discussing the election of remedies doctrine, the Court
cited its 1938 decision in Hudgins v. Nashville Bridge Co., 113 S.W.2d 738 (Tenn. 1938)
in which it quoted with approval language from a Massachusetts decision: “Where

                                             6
inconsistent courses are open to an injured party and it is doubtful which ultimately may
lead to full relief . . . the assertion of one claim which turns out to be unsound, so long as
it goes no further, is simply a mistake. It is not and does not purport to be a final choice,
nor an election.” Id. at 281-82 (emphasis in original). Identifying “the more defensible
policy basis” for the election of remedies doctrine to be “the prevention of vexati[ous]
litigation, of forum shopping, and of double recoveries for the same injury,” the Court
stated the injured employee’s Tennessee claim “was mistakenly filed against the wrong
party, National Union, in the wrong jurisdiction, Texas. Id. at 282 (emphases in original).

        By contrast in this case, however, no such mistakes were made. Employer’s only
provision of workers’ compensation benefits was made pursuant to Tennessee law.
Employee was fully aware that Tennessee was a possible jurisdiction and chose to pursue
benefits in another state. Indeed, Employee filed his initial petition in Tennessee after
instituting his claim in Georgia. His efforts to obtain benefits in Georgia were not limited
to merely filing a Georgia claim; rather, his efforts went much further. He and his
Georgia counsel fully participated in the Georgia process, going so far as to engage in
extensive discovery and participate in the hearing at which Employee offered testimony
and documentary evidence in support of his Georgia claim while knowing Employer
contested whether Georgia had jurisdiction over the claim. The fact that a decision was
not rendered on the merits of the claim does not mean that the hearing itself was not
designed to address them. Jurisdiction is a threshold issue, and, if it does not exist, all
other issues are pretermitted. See, e.g., In re Estate of Brown, 402 S.W.3d 193, 198
(Tenn. 2013). Here, Employee was faced with two possible jurisdictions in which he
could pursue workers’ compensation benefits, and he knowingly elected to pursue those
benefits in a Georgia forum. Under the facts and circumstances as presented in the
record, Employee’s failure to establish jurisdiction under the Georgia workers’
compensation law does not insulate the case from the application of the election of
remedies doctrine in Tennessee.

                                        Conclusion

     For the foregoing reasons, we reverse the trial court’s decision denying
Employer’s motion for summary judgment and remand the case for an order granting
Employer summary judgment. Each party shall bear its own costs on appeal.




                                              7
            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Charles R. Goodwin                            )   Docket No. 2017-03-1235
                                              )
v.                                            )   State File No. 80097-2017
                                              )
Morristown Driver’s Services, Inc., et al.    )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Lisa A. Lowe, Judge                           )


Marshall L. Davidson, III, Presiding Judge, concurring.
       I agree with the lead opinion that the trial court should have granted the motion for
summary judgment based on the election of remedies doctrine. I write separately to
explain why.

       First, it is important that this case be considered in its proper factual and
procedural context. Specifically, the plaintiff chose to pursue his claim in another state
while knowing he could have done so in Tennessee where he was injured. He did not
make a mistake, did not sign or file documents without adequate knowledge, and did not
make choices about where to sue without the benefit of counsel. He was not misled,
tricked, or the victim of a trap. Much to the contrary, the plaintiff knowingly and with
the advice of counsel took affirmative steps, including extensive discovery and a trial, to
pursue his rights in another jurisdiction. Even the trial court acknowledged “the parties
agree that [the plaintiff] took affirmative action pursuing” his litigation elsewhere.

       Second, while the dissent relies heavily on Gray v. Holloway Construction Co.,
834 S.W.2d 277 (Tenn. 1992), a more recent case, Eadie v. Complete Co., 142 S.W.3d
288 (Tenn. 2004), is more analogous to this case. In Eadie, the Tennessee Supreme
Court found that a plaintiff’s claim was barred by the election of remedies doctrine
because the plaintiff “actively initiated proceedings seeking to obtain benefits by filing a
claim in [another state], request[ed] a hearing, and participat[ed] in depositions in that
matter.” Eadie, 142 S.W.3d at 291. These actions were deemed by the Court to be
“affirmative conduct constituting a binding election of remedies.” Id. This case is a
similar, if not a more compelling example, for applying the election of remedies rule, and
the result should be the same.


                                             1
       Third, the plaintiff took a calculated risk that his suit in another state would be
unsuccessful, the same risk any litigant takes when suing in multiple jurisdictions seeking
the most advantageous recovery possible. Having made the strategic choice of where to
file and fully litigate his claim, with the advice of counsel no less, the plaintiff should not
now be permitted to retreat to Tennessee’s legal system for a new round of litigation. 1

       Fourth, contrary to the dissent’s view, the election of remedies doctrine is not
driven by the outcome of the foreign proceeding but, rather, by the actions of the plaintiff
in choosing the jurisdiction in which to litigate and then taking affirmative steps to do so.
Eadie, 142 S.W.3d at 291 (observing that it is unnecessary for an employee to receive
benefits in another state but, rather, affirmatively act to obtain benefits in the other state).
The dissent ignores the plaintiff’s conduct in taking affirmative steps to pursue a recovery
elsewhere, including hiring counsel, filing suit, undertaking extensive discovery,
obtaining expert medical proof, requesting a hearing, filing briefs, and presenting both
lay and expert testimony at a trial. If, under these circumstances, a party may simply start
anew in Tennessee, the election of remedies principle would, practically speaking, be
limited to a small subset of cases in which the plaintiff receives an adverse judgment
following a trial.

        Fifth, adopting the dissent’s position would incentivize forum shopping, and do so
on the novel theory that a recovery should be made available to litigants somewhere,
irrespective of their actions. Under the dissent’s view, for example, a party could bring
suit in any number of states in search of the most advantageous recovery possible and,
after being rebuffed by each one for any host of possible reasons, turn to Tennessee’s
legal system as a last resort. Such a system is hardly consistent with a fair and efficient
workers’ compensation system as mandated by Tennessee Code Annotated section 4-3-
1409(b)(2)(A).

       Sixth, the dissent argues that the plaintiff’s suit should be allowed to go forward
because the purpose of the election of remedies doctrine is to prevent a double recovery.
The dissent fails to recognize, however, that the election of remedies doctrine is also
aimed at preventing forum shopping and vexatious litigation. Eadie, 142 S.W.3d at 291;
Gray, 834 S.W.2d at 282. Again, the plaintiff here pursued his claim in another
jurisdiction to the point of trying his case. The election of remedies doctrine is designed
to prevent duplicative litigation, not promote it.

       Finally, the dissent makes the point that the plaintiff may not recover if he is not
permitted to pursue his claim in Tennessee. Not only can this argument be made in most
any election of remedies case, it overlooks the fact that this is the direct result of strategic
1
  The defendant argues that requiring it to conduct discovery in Georgia, obtain medical evidence,
participate in depositions, brief the issues, and present its evidence and arguments at trial before a Georgia
court, only to then have to do the same in Tennessee runs contrary to the purpose of the election of
remedies doctrine. I agree.

                                                      2
choices made by the plaintiff to pursue benefits in a jurisdiction he apparently thought
would produce the most favorable recovery.

      In short, the plaintiff made an informed and calculated decision to litigate
elsewhere to secure the most advantageous recovery possible, and took affirmative steps
to do so, even to the point of trying his case there. Thus, the motion for summary
judgment should have been granted.




                                           3
            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Charles R. Goodwin                            )   Docket No. 2017-03-1235
                                              )
v.                                            )   State File No. 80097-2017
                                              )
Morristown Driver’s Services, Inc., et al.    )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Lisa A. Lowe, Judge                           )

Timothy W. Conner, Judge, dissenting.

        In my view, the result reached by the majority in this case hinges on an unduly
strict and unnecessarily harsh interpretation of Tennessee’s election of remedies doctrine
that leaves this injured worker without a remedy. Because I find the majority’s
interpretation of prior Tennessee precedent to be counter to the administration of a “fair,
equitable, [and] expeditious” workers’ compensation system, as mandated by Tennessee
Code Annotated section 4-3-1409(b)(2)(A), I respectfully dissent.

      First, a binding election of remedies cannot occur unless the facts indicate there
was “more than one remedial form available” to the litigant. Barger v. Webb, 391
S.W.2d 664, 666 (Tenn. 1965). As explained by Professor Larson in his treatise:

       [A]n election of a remedy which proves to be nonexistent is no election at
       all. Election . . . is a choice between two valid but inconsistent remedies; it
       is not the mistaken pursuit of a misconceived right when only one right in
       fact existed. . . . Unquestionably, the majority rule is the only view that
       effectuates the purpose of the legislation, whatever arguments may be
       raised against it based on literal wording of statutes or on the technical
       application of the election doctrine at some stages of the common law.
       Workers’ compensation is above all a security system; a strict election
       doctrine transforms it into a grandiose sort of double-or-nothing gamble.

9 Lex K. Larson, Larson’s Workers’ Compensation Law § 102.03 (Matthew Bender, Rev.
Ed.) (emphasis added). In the present case, a Georgia workers’ compensation adjudicator
concluded Georgia law provided no remedy to this injured worker due to the lack of


                                             1
subject matter jurisdiction. Thus, with no remedy available in Georgia, it is incongruous
to conclude this injured worker made a binding election to pursue a remedy in Georgia.

      Second, Employer has achieved the anomalous but impressive result of arguing in
Georgia that there was no remedy available due to a lack of jurisdiction, then arguing in
Tennessee that this injured worker made a binding election by pursuing a remedy in
Georgia. Such a result is counter to a fair and equitable administration of Tennessee’s
workers’ compensation system and flies in the face of common sense.

       Third, and most importantly in my opinion, there has been no adjudication of
Employee’s claim on the merits, either in Georgia or in Tennessee. Courts of this state
have long expressed a preference for deciding cases on the merits. See, e.g., Henry v.
Goins, 104 S.W.3d 475, 481 (Tenn. 2003); Childress v. Bennett, 816 S.W.2d 314, 316
(Tenn. 1991). Moreover, in one of the cases cited by the majority, Bradshaw v. Old
Republic Ins. Co., 922 S.W.2d 503 (Tenn. 1996), the Supreme Court noted that an
important basis for barring the employee’s Tennessee claim based on an election of
remedies was that “he had pursued his claim to a conclusion on the merits in the state of
Maryland.” Id. at 504 (emphasis added). The Court further emphasized that “the fact
that the Maryland claim was denied on the merits does not protect him” from application
of the election of remedies doctrine. Id. at 508 (emphasis added). There has been no
such adjudication in this case.

       In Gray v. Holloway Construction Co., 834 S.W.2d 277 (Tenn. 1992), the
Tennessee Supreme Court addressed the application of the election of remedies doctrine
in circumstances similar to the facts in the present case. 1 As discussed in the majority
opinion, the employee in Gray suffered two work-related injuries while working for the
same employer: the first in Texas and the second in Tennessee. Id. at 277. Following the
Tennessee injury, the employee began receiving benefits for the second claim from the
same insurer that was covering his first claim. Id. at 278. After the employee filed his
second claim with the Texas Industrial Accident Board, the insurer realized it did not
provide coverage for a Tennessee injury and ceased making payments. Id. Thereafter,
the employee’s Texas attorney referred him to a Tennessee law firm, which filed a
complaint in Tennessee. Id. The defendant argued the employee’s Tennessee claim was
barred because he had elected his remedy by filing his second claim with the Texas
Industrial Accident Board. Id.

       In rejecting the application of the election of remedies doctrine in Gray, the
Tennessee Supreme Court first noted a number of cases in which the election of remedies
doctrine barred a Tennessee claim in circumstances where the employee pursued and

1
 In the majority opinion, my colleagues conclude that Gray is “readily distinguishable” from the present
case. I respectfully disagree. Instead, I find the cases on which the majority relies distinguishable, and I
believe the Supreme Court’s opinion in Gray more closely aligns to the facts of the present case.

                                                     2
received benefits in another state. See, e.g., Tidwell v. Chattanooga Boiler & Tank Co.,
43 S.W.2d 221, 222 (Tenn. 1931) (widow sought and received an award in Ohio before
pursuing benefits in Tennessee); Perkins v. BE & K, Inc., 802 S.W.2d 215, 217 (Tenn.
1990) (employee signed an “Agreement for Compensation” and received Virginia
benefits before pursuing a claim in Tennessee); True v. Amerail Corp., 584 S.W.2d 794,
(Tenn. 1979) (employee sought and received benefits in Virginia before pursuing
Tennessee benefits). The Court then noted that

        [t]he common thread in Perkins and Tidwell – cases in which recovery in
        Tennessee was held to be precluded – is the fact that workers injured in
        other jurisdictions had both filed out-of-state claims and received awards in
        those courts or entered into settlements approved by industrial
        commissions in those states.

Id. at 280 (emphasis added). 2 In concluding there was no binding election of remedies in
Gray, the Supreme Court explained, “[b]ecause the Texas claim . . . is legally baseless, it
cannot be said to be repugnant to or inconsistent with the plaintiff’s Tennessee claim.”
Id. at 281. The Court then expounded on its rationale for this decision:

        Where the victim of a wrong has at his command inconsistent remedies and
        he is doubtful which is the right one, in the absence of facts creating an
        equitable estoppel, he may pursue any or all of them until he recovers
        through one, since the prosecution of a wrong remedy to defeat will not
        estop him from subsequently pursuing the right one. A party is not required
        to select his procedure at his peril. This rule has been applied to actions
        where it is doubtful whether the remedy of plaintiff is under the employer’s
        liability act or at common law, and is equally applicable where the question
        relates to remedies afforded by the statutes of different sovereign powers,
        each exclusive within its own domain.

Id. (emphases in original) (quoting Hudgins v. Nashville Bridge Co., 113 S.W.2d 738,
739 (Tenn. 1938)). The Court went even further in rejecting an indiscriminate
application of the election of remedies doctrine under such circumstances:

        Where inconsistent courses are open to an injured party and it is doubtful
        which ultimately may lead to full relief . . . the assertion of one claim which
        turns out to be unsound, so long as it goes no further, is simply a mistake.
        It is not and does not purport to be a final choice, nor an election.


2
  I do not intend to suggest that a claimant must receive benefits in another state for the election of
remedies doctrine to apply; rather, I believe Employee should receive an adjudication of his claim on the
merits. A claim filed in a state that cannot exercise jurisdiction is no election at all.

                                                   3
Id. at 281-82 (quoting Hudgins, 113 S.W.2d at 740) (emphasis added). 3

       In the present case, Employee filed a claim in Georgia, but that claim went no
further than a determination by a Georgia adjudicator that subject matter jurisdiction did
not lie in Georgia. The adjudicator in Georgia expressly reserved any determination on
the merits of Employee’s claim. Thus, in my view, his Georgia claim was deemed
baseless, as was the Texas claim in Gray. 4

        Finally, the Supreme Court in Gray noted:

        The palpable if unspoken principle underlying our decision in Perkins was
        a perceived need to guard against unfair manipulation of the Tennessee
        legal system and a possible double recovery by an injured worker who has
        already secured an adequate compensation in another jurisdiction. That
        concern remains a valid one. Nevertheless, to invoke the ruled applied in
        Perkins to [this employee’s] case would produce just the opposite result –
        instead of a double recovery, there would be no recovery at all. Clearly that
        result would constitute a perversion of an otherwise sound policy developed
        in the line of cases culminating in Perkins. 5

Id. at 282 (emphasis added); see also Concrete Spaces, Inc. v. Sender, 2 S.W.3d 901, 906
(Tenn. 1999) (“the purpose of the [election of remedies] doctrine is to prevent double
redress for a single wrong”). In my view, the majority’s decision to leave Employee with
no opportunity to have the merits of his claim considered, and no chance for a remedy at
all, strikes at the heart of a fair and impartial workers’ compensation system, and is an
unnecessarily strict interpretation of the election of remedies doctrine given the
Tennessee Supreme Court’s decision in Gray. I therefore dissent.

3
 The majority argues that Employee’s decision to pursue a claim in Georgia was no mistake. Yet,
Employee’s belief that the State Board of Workers’ Compensation in Georgia would exercise subject
matter jurisdiction over his claim was wrong — that is, by definition, a mistake.
4
  In Eadie v. Complete Co., 142 S.W.3d 288 (Tenn. 2004), the case on which the defendant and my
concurring colleague rely, the Supreme Court was neither asked to address, nor did it address, whether the
employee’s claims filed in other jurisdictions were baseless. In fact, the employer sought summary
judgment in the Tennessee claim before the other claims were adjudicated. Id. at 290. Moreover, the
Supreme Court specifically noted that none of the claims filed in jurisdictions other than Tennessee had
been denied. Id. at 291. Thus, there had been no determination in Eadie that the employee’s claims in
other states were “baseless.” I do not find the opinion in Eadie dispositive of this case.
5
  In his concurrence, my colleague concludes that I have ignored other purposes of the election of
remedies doctrine, including avoiding forum-shopping and preventing vexatious litigation. I am not
disregarding those goals, but instead, like the Supreme Court in Gray, I am weighing them against an
interpretation of the election of remedies doctrine that prevents a claimant from ever having the merits of
his claim considered. My opinion would be different had the adjudicator in Georgia denied Employee’s
claim on the merits and then Employee attempted to re-litigate his case in Tennessee.

                                                    4
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Charles R. Goodwin                                      )     Docket No. 2017-03-1235
                                                        )
v.                                                      )     State File No. 80097-2017
                                                        )
Morristown Driver’s Services, Inc., et al.              )
                                                        )
                                                        )
Appeal from the Court of Workers’                       )
Compensation Claims                                     )
Lisa A. Lowe, 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 31st day of July, 2019.

 Name                              Certified   First   Via   Fax      Via     Sent to:
                                   Mail        Class   Fax   Number   Email
                                               Mail
 John A. Willis                                                         X     johnwillis@foxandfarleylaw.com
 Brian Rife                                                             X     brife@midkifflaw.com
 Daniel I. Hall                                                         X     dhall@midkifflaw.com
 Lisa A. Lowe, Judge                                                    X     Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                        X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                           X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
