Phillips, Michael v. Western Express, Inc.

FILED
Aug 30, 2024
07:08 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Michael S. Phillips ) Docket No. 2021-08-0717
)
v. ) State File No. 46505-2021
)
Western Express, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )

Affirmed and Certified as Final

The employee appeals the trial court’s order granting summary judgment in favor of the
employer and dismissing the case. The employee, a resident of Oklahoma, reported two
work-related injuries occurring in 2020 while he was employed by a trucking company
based in Tennessee. The employee received medical treatment and retained an attorney
in Oklahoma, who filed a First Notice of Claim for Compensation with the Oklahoma
Workers’ Compensation Commission in December 2020. Subsequently, the employee’s
Oklahoma claim was dismissed with prejudice in January 2022 because he did “not
demonstrate an intent to pursue this claim.” In the meantime, the employee, acting in a
self-represented capacity, filed petitions with the Tennessee Bureau of Workers’
Compensation in July 2021, March 2022, and May 2023. After a period of discovery, the
employer filed a motion for summary judgment based on Tennessee’s election of
remedies doctrine. After a hearing, the trial court granted summary judgment in favor of
the employer, and the employee appealed. Upon careful consideration of the record, we
affirm the trial court’s order and certify it as final.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.

Michael S. Phillips, Oklahoma City, Oklahoma, employee-appellant, pro se

D. Andrew Saulters, Nashville, Tennessee, for the employer-appellee, Western Express,
Inc.

1
Factual and Procedural Background

Michael S. Phillips (“Employee”), a sixty-nine-year-old Oklahoma resident,
worked for Western Express, Inc. (“Employer”), a Tennessee trucking company. In July
2021, Employee, in a self-represented capacity, filed a petition for benefits with the
Tennessee Bureau of Workers’ Compensation, alleging he sustained a work-related
injury on December 17, 2020, when he fell out of the sleeping compartment of a truck
and struck the floor of the truck. 1 He reported injuries to his back, pelvis, and leg. 2

At the time Employee filed his initial petition in Tennessee, a claim for workers’
compensation benefits was pending in the State of Oklahoma, having been filed by an
attorney retained by Employee. The Oklahoma Workers’ Compensation Commission
(“Commission”) uses a document called a CC-FORM-3, entitled “Employee’s First
Notice of Claim for Compensation.” The CC-FORM-3 filed with the Oklahoma
Commission, purportedly signed by both Employee and his attorney in December 2020,
described two incidents: (1) an April 27, 2020 accident in which he injured his left leg,
both knees, back, pelvis, and neck when he “was thrown” while “using a cheater bar to
tighten chains”; and (2) a November 30, 2020 “re-injury” in which he “fell out of the top
bunk.” In January 2021, Employee’s attorney served Interrogatories and Requests for
Production of Documents on an insurance company in Oklahoma City. Then, on
February 1, 2021, Employee’s attorney filed a CC-FORM-9 “Request for Hearing”
seeking temporary total disability benefits and medical benefits. There is no indication in
the record on appeal as to whether such a hearing ever occurred, and there are no other
documents in the record concerning Employee’s Oklahoma claim until an “Order
Dismissing Claim with Prejudice” was entered by an Oklahoma administrative law judge
on January 18, 2022. In that order, the judge concluded that “[t]he Oklahoma Workers’
Compensation Commission has jurisdiction of this claim,” but that “[t]he Claimant has
not and does not demonstrate an intent to pursue this claim.”

With respect to the Tennessee claim, Employer filed a motion for summary
judgment in December 2023 arguing that Employee’s claim is barred by Tennessee’s
election of remedies doctrine. After delaying a hearing on Employer’s motion once, the
trial court scheduled a telephonic hearing to occur in May 2024, after which it issued an
order granting summary judgment on June 5, 2024. In its order, the Court concluded the
election of remedies doctrine precludes Employee from maintaining a claim for workers’
compensation benefits in Tennessee. It therefore dismissed Employee’s claim with
prejudice. Employee has appealed.

1
The July 21, 2021 petition does not specify the state in which the truck was located when this incident
occurred.
2
Employee subsequently filed two more petitions in March 2022 and May 2023, each alleging a
December 17, 2020 accident date but describing different events.
2
Standard of Review

The interpretation and application of statutes and regulations are questions of law
that we review de novo with no presumption that the trial court’s conclusions are correct.
See Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn.
2013). The grant or denial of a motion for summary judgment is also a question of law
that we review de novo with no presumption that the trial court’s conclusions are correct.
See 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. 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 (2023).

Analysis

In his notice of appeal, Employee does not allege any errors on the part of the trial
court in granting Employer’s motion for summary judgment. Instead, he merely
reiterates his allegations that he suffered two work-related injuries in 2020. Moreover,
Employee did not file a brief expressing any factual or legal arguments in support of his
appeal. As we have noted previously, it is not our role to search the record for possible
errors or to formulate legal arguments in favor of Employee where he has provided no
argument or authority to support his position. Bryant v. Industrial Staffing Servs., No.
2018-08-1014, 2020 TN Wrk. Comp. App. Bd. LEXIS 41, at *8 (Tenn. Workers’ Comp.
App. Bd. Feb. 25, 2020). Were we to search the record for possible errors and raise
issues or formulate arguments for Employee, we would be acting as his counsel, which
the law prohibits. Webb v. Sherrell, No. E2013-02724-COA-R3-CV, 2015 Tenn. App.
LEXIS 645, at *5 (Tenn. Ct. App. Aug. 12, 2015). See also Sneed v. Bd. of Prof’l
Responsibility of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010) (“It is not the
role of the courts, trial or appellate, to research or construct a litigant’s case or arguments
for him or her.”).

Moreover, Employee did not respond to Employer’s evidence or arguments
regarding the applicability of the election of remedies doctrine. Under that doctrine, “an
employee who . . . ‘actively pursues a claim in a venue that has jurisdiction, is barred
from filing a subsequent claim in Tennessee.’” Goodwin v. Morristown Driver’s Servs.,
No. E2019-01517-SC-R3-WC, 2020 Tenn. LEXIS 157, at *7 (Tenn. Workers’ Comp.
Panel June 15, 2020) (quoting Gray v. Holloway Constr. Co., 834 S.W.2d 277, 279
(Tenn. 1992) (emphasis in original)). A claim may be barred by the doctrine of election
of remedies even when the employee receives no benefits in the other jurisdiction.
Bradshaw v. Old Republic Ins. Co., 922 S.W.2d 503, 507 (Tenn. 1996).

3
Here, for purposes of the motion for summary judgment, it was undisputed that
Employee, through counsel, filed a claim for benefits in Oklahoma in December 2020,
sent discovery requests to the opposing party, and requested a hearing. Although the
record is silent as to whether any such hearing occurred, we agree with the trial court that
Employer produced unrefuted evidence that Employee actively pursued a claim for
workers’ compensation benefits in Oklahoma. Moreover, the order of the administrative
law judge dismissing Employee’s Oklahoma claim explicitly found that the Oklahoma
Workers’ Compensation Commission had jurisdiction over Employee’s claim for
benefits. Thus, we conclude Employer met its burden of production under Tennessee
Rule of Civil Procedure 56 to negate an essential element of Employee’s Tennessee
claim. In response to this evidence, Employee presented nothing to create a genuine
issue of material fact regarding the applicability of the election of remedies doctrine.
Thus, we conclude the trial court did not err in granting Employer’s motion for summary
judgment and dismissing the case.

Conclusion

For the foregoing reasons, we affirm the trial court’s order granting summary
judgment and dismissing the case, and we certify that order as final. Costs on appeal
have been waived.

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

Michael S. Phillips ) Docket No. 2021-08-0717
)
v. ) State File No. 46505-2021
)
Western Express, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, 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 30th day
of August, 2024.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Michael S. Phillips X michaelsphillips1@gmail.com
Drew Saulters X dsaulters@ortalekelley.com
jarmstrong@ortalekelley.com
Amber E. Luttrell, 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