Cooper, Erik v. Tragedy Girls Pictures, LLC

TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
ERIK COOPER, ) Docket No. 2017-03-0889
Employee, )
v. )
TRAGEDY GIRLS PICTURES, LLC, )
Employer, )
)
AMERICAN INSURANCE CO., ) State File No. 84603-2017
Carrier, )
And )
ABIGAIL HUDGENS, Administrator )
for the BUREAU OF WORKERS' )
COMPENSATION and )
SUBSEQUENT INJURY FUND. ) Judge Lisa A. Lowe
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This matter came before the undersigned workers' compensation judge on Mr.
Cooper's Request for Expedited Hearing. He requested medical and temporary disability
benefits. However, the preliminary issues of this Court's jurisdiction and an election of
remedies defense overshadowed the benefits question. 1
For the reasons below, the Court holds Mr. Cooper is likely to prevail in
establishing Tennessee has jurisdiction because the contract for hire was made in
Tennessee. However, the Court also holds that Mr. Cooper is unlikely to prevail in a
hearing on the merits on the issue of election of remedies because he elected to seek
benefits under California workers' compensation law.
1
The parties filed many pleadings, most recently Mr. Cooper's motion for leave to present impeachment
evidence of Anthony Holt's affidavit. The Court denies his motion, as he had ample time to provide
information he wished the Court to consider. Additionally, the Court determines the impeachment
evidence is not determinative of the central jurisdiction issue.
1
History of Claim
Gayle Ocheltree and John Frick worked for TGP on a movie to be filmed in
Kentucky. Mr. Cooper knew them personally and professionally. On July 22, 2016, Mr.
Frick called Mr. Cooper and offered him employment with TGP as a payroll clerk. Mr.
Cooper received the call and accepted the offer while attending a baseball game in
Tennessee. Afterward, he was copied on an email from Ms. Ocheltree to TGP employee
Savannah Cyree, in which Ms. Ocheltree provided Mr. Cooper's contact information and
arrival details, and she requested Ms. Cyree obtain a hotel room for him. Ms. Cyree then
emailed Mr. Cooper the following: "Hey Erik, Welcome to the team!! We got you a room
... with the rest of the team[.]" Mr. Cooper responded that he was glad to join the team.
On July 24, before Mr. Cooper left Tennessee, Ms. Ocheltree and Mr. Frick called
him and requested that he purchase specific office equipment and supplies for the
production accounting office. Mr. Cooper bought the items in Tennessee. He paid for
them, anticipating reimbursement on delivery. 2
Later that day, Ms. Ocheltree and Mr. Frick called Mr. Cooper again and directed
him to join them, the production team, and the actors in Lexington, Kentucky for dinner,
which he did. Afterward, Mr. Cooper followed Ms. Ocheltree and Mr. Frick to the
production office in Springfield, Kentucky. On arrival, they introduced Mr. Cooper to
other production employees and showed him the desk where he would work. Mr. Frick
then instructed Mr. Cooper to retrieve the office equipment and supplies. On his third or
fourth trip, while carrying a box weighing approximately fifty-two pounds, he felt pain in
his left shoulder, bilateral forearms, elbows, wrists, and hands.
Mr. Cooper notified Mr. Frick about his injury/pain. The next morning, he woke
with "excruciating left shoulder pain and numbness in both arms." He went to the
production office and began processing new hire paperwork, including a crew deal
memo. Mr. Cooper worked from 7:30 a.m. until 11 :00 p.m. On July 26, Mr. Cooper
reported his worsening condition to Mr. Frick, who gave him a California workers'
compensation claim form. On July 27, after resigning due to the pain and before returning
to Tennessee, Mr. Cooper completed the California workers' compensation claim form
and gave it to Mr. Frick. Mr. Cooper did not receive any follow-up communications from
TGP about his claim, so he emailed TGP on October 14 requesting contact information
for the workers' compensation carrier. TGP provided the information for its insurance
broker, who submitted the claim to the carrier on November 23.
On February 28, 2017, Mr. Cooper sent a letter to the claims adjuster requesting
benefits "in accordance with California workers' compensation statutes." Mr. Cooper
copied the California State Division of Workers' Compensation on the letter. The carrier
filed a Notice of Denial, which, under California law, allowed either party to request a
Qualified Medical Evaluation (QME) with an independent medical examiner. Mr. Cooper
2
TGP ultimately reimbursed Mr. Cooper for the equipment and supplies.
2
requested a QME. He selected the QME physician and attended the exam. The physician
found that his left shoulder injury "is industrial in causation," while his bilateral forearm
and hand injuries are "non-industrial in causation," and "industrial exposure at most
exacerbated symptoms related to cervical spine radiculopathy, carpal tunnel syndrome
and cubital tunnel syndrome." He assigned a three-percent impairment rating.
With regard to jurisdiction, Mr. Cooper claimed he is a dual resident of Tennessee
and California. He stated he maintains a residence in Gatlinburg, Tennessee, and in Santa
Monica, California, but does not own property in either state. He testified that he
suspended his attempt to receive benefits in California and elected to pursue Tennessee
benefits based on TGP's defense that California lacks subject matter jurisdiction. In his
affidavit, Mr. Cooper argued that Tennessee has jurisdiction and denied actively pursuing
benefits in California.
TGP/SIF argued that, on the date of injury, Mr. Cooper neither owned nor rented
any real estate in Tennessee but rented a California apartment with Mr. Frick. TGP/SIF
relied on Mr. Cooper's affidavit executed on October 14, 2017, and filed in a California
personal injury case. The affidavit contained the following relevant to jurisdiction:
• I am a resident of the State of California. I have been a resident of the
State of California since 2009. I spend most of my time in the State of
California.
• My principal residential address is ... Santa Monica, California.
• At no time since 2009 have I moved from California to any other state .
. . my intent of making California my true, fixed, permanent home and
principal establishment. The State of California is the place where I
have the closest connections.
• My parents own a non-primary residence in Gatlinburg, Tennessee.
When I travel to Tennessee, I often stay at this property until returning
to my residence in California.
• I neither own nor rent any residential or commercial real estate in
Tennessee ... or any state other than ... California.
• In July 2016, I was injured on the job in Kentucky while working on a
film production. I filed a workers' compensation insurance claim for my
injuries. The claim was filed in the state of California based [on] my
place of residence. The claim remains active today.
• I have never filed nor paid any income tax in any state other than
California.
TGP/SIF also noted that on July 27, 2016, Mr. Cooper sent a letter to Mr. Frick and
Ms. Ocheltree providing written notice of his workers' compensation claim, stating, "For
jurisdictional purposes, as allowable, I choose California as my beneficiary state."
Further, in his October 14 letter to TGP, Mr. Cooper noted if he did not receive a
3
.·
response by October 21, "I will understand you do not intend to respond and will then
proceed in filing a claim directly with the State of California Department of Industrial
Relations, Workers' Compensation Division." Mr. Cooper also sent a May 23, 2017 letter
to the carrier seeking reimbursement for his travel expenses for the QME. TGP/SIF
averred that Mr. Cooper took affirmative action under California's workers'
compensation law by applying for a QME, submitting to the QME examination, seeking
reimbursement for QME-related expenses, and making numerous demands for California
benefits. Thus, he is precluded from recovering benefits under Tennessee law.
Additionally, TGP argued Mr. Cooper's contract of hire was not made in
Tennessee because execution of the crew deal memo was an absolute condition precedent
to formation of a contract of hire. TGP relied on the affidavit of Anthony Holt, which
stated:
Execution of the crew deal memo is an absolute condition precedent prior
to any crew member providing contracting services for ... TGP. Therefore,
Mr. Cooper would not be considered a crew member or an independent
contractor of the production until he executed the required paperwork,
which was maintained in Springfield, Kentucky.
Findings of Fact and Conclusions of Law
Mr. Cooper 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) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Subject Matter Jurisdiction
Tennessee Code Annotated section 50-6-11 S(b )(2) states that an employee who is
injured while working outside Tennessee and who would have been entitled to worker's
compensation benefits if the injury had occurred in Tennessee may receive those benefits
if, at the time of the injury:
(A) The employment was principally localized within this state; (B) The
contract of hire was made in this state; or (C) If at the time of the injury, the
injured worker was a Tennessee resident and there existed a substantial
connection between this state and the particular employer and employee
relationship.
No one disputes the potential applicability of subsection (A) or (C) because Mr.
Cooper's employment activities occurred in Kentucky and TGP had no connection to
Tennessee. The issue is whether Mr. Cooper's contract for hire was made in Tennessee.
4
Tennessee Code Annotated section 50-6-J l 5(b)(2)(B)
Mr. Frick and Mr. Cooper testified that Mr. Frick offered Mr. Cooper the position
over the telephone and Mr. Cooper accepted the position in Tennessee on July 22. That
same day, Ms. Ocheltree copied Mr. Cooper on an email to Ms. Cyree providing his
social security number and contact information, and requesting that she book a hotel
room for him. Ms. Cyree responded, "Welcome to the team!! We got you a room ... with
the rest of the team." Mr. Cooper replied that he was glad to join the team. On June 23,
Mr. Cooper emailed Ms. Cyree saying it was great to join the production and he shared
his contact information. Ms. Cyree advised that she booked his room.
Mr. Frick and Mr. Cooper testified that, at Mr. Frick's and Ms. Ocheltree's
request, Mr. Cooper purchased office equipment and supplies and brought them to
Kentucky. Mr. Frick also asked Mr. Cooper to meet other crew members for dinner in
Lexington. Following dinner, Mr. Cooper went to the production office and began to
carry in the supplies. While doing so, he sustained his alleged injury.
The Tennessee Supreme Court addressed contracts for hire created by phone calls
in Tolley v. Gen. Accident, Fire & Life, 584 S.W.2d 647 (Tenn. 1979). In Tolley, the
employee, a resident of Missouri, called the employer in Tennessee seeking employment
at a job site in Arkansas. During the call, the employer agreed to an hourly rate of pay
and notified the job superintendent to expect the employee on the job site the next day.
The Supreme Court held that a contract of hire was made in Tennessee, triggering the
extraterritorial application of the Tennessee Workers' Compensation Law. The Court
stated that "where an acceptance of an offer [of employment] is given by telephone, it is
generally held that the place of contracting is where the acceptor speaks his acceptance."
The Court reached similar conclusions in Matthews v. St. Paul Property & Liability Ins.,
845 S.W.2d 737 (Tenn. 1992), and Duncan v. Royal Ins. Co., No. W1998-00093-WC-
R3-CV, 1999 Tenn. LEXIS 662 (Dec. 15, 1999). In Matthews and Duncan, the
Tennessee Supreme Court held that the employments were not principally located in
Tennessee but the contracts for hire were made within the state.
The Court reached a different conclusion in Perkins v. BE & L, Inc., 802 S.W.2d
215, 216 (Tenn. 1990), where a Florida company contacted via telephone a Tennessee
employee regarding employment in Virginia. After the employee received information
about the job opening, he went to Virginia to complete an application before beginning to
work. Id. Similarly, in Russell v. Transco Lines, Inc., No. E2015-02509-SC-R3-WC,
2017 Tenn. LEXIS 393 (June 20, 2017), an Arkansas company contacted a Tennessee
husband and wife concerning their previous employment inquiries. The company called
to inform them that a position was available and that their "pre-application" documents
and records were approved. Id. at *4. The company claimed that they must come to
Arkansas to attend a three-day orientation, complete the hiring paperwork, and pass drug
tests and physicals. Id. at *4-5. The Tennessee Supreme Court held in Perkins and
Russell that the contracts for hire did not occur in Tennessee because each had to travel to
5
different states to complete the hiring process before becoming employees. 3 In Perkins,
the only occurrence in Tennessee was the employer's call informing the employee of a
job opening. Id. at 216. The Court held that "[ s]uch notification does not constitute a
contract for hire with the meaning ofT.C.A. § 50-6-115(b)(2)." Id.
TOP argued this case is similar to Perkins and Russell because it conditioned Mr.
Cooper's employment on his execution of a crew deal memo when he reached the job site
in Kentucky. However, the facts in this case more closely align with Tolley. Here, after
his acceptance by phone, Ms. Ocheltree notified Ms. Cyree of Mr. Cooper's information
and when he would arrive, and she instructed her book a hotel room for him. Then Ms.
Cyree sent Mr. Cooper an email welcoming him to the team. Ms. Cyree's email did not
indicate that Mr. Cooper had to complete paperwork before a final hiring determination.
TOP's argument also fails because Mr. Frick and Ms. Ocheltree directed him to purchase
office supplies before his arrival in Kentucky. Additionally, they directed Mr. Cooper to
attend a dinner with crew members on his arrival and to unload the equipment. TOP did
not ask him to execute a crew deal memo until July 25. Applying Tolley to these facts,
the Court holds that Mr. Cooper's contract of hire was made in Tennessee and this Court
has jurisdiction.
Election of Remedies
Having found jurisdiction, the Court now addresses application of the election of
remedies doctrine.
An employee may be barred from receiving workers' compensation benefits under
Tennessee law through the election of remedies doctrine. The test is if the employee "(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). The election of remedies doctrine is "designed to prevent forum
shopping, vexatious litigation, and double recovery for the same injury." Id. Further, "the
circumstances of each case must be considered in determining whether the employee has
made a binding election." Perkins, 802 S.W.2d at 217. Here, the issue is whether
Mr. Cooper affirmatively acted to obtain benefits from another state.
In Perkins, the Court noted that the employee stated in an affidavit that "he never
intended to be bound by or accept the law of the state of Virginia concerning any
benefitsto which [he] was entitled." Id. The Court found that he elected to receive
benefits under Virginia law and was, therefore, preclude from collecting Tennessee
benefits. Specifically, the Court found that, "[i]f the employee has taken any affirmative
action to seek a recovery under the law of that state ... he may well be precluded by this
election and may not be entitled to proceed in Tennessee." Id. (Emphasis added.)
3
The Court also held that both employments were principally conducted outside of Tennessee.
6
Here, Mr. Cooper took affirmative actions to seek workers' compensation benefits
under California law. In a July 27, 2016 letter, he stated, "[ f]or jurisdictional purposes ...
I choose California as my beneficiary state." (Emphasis added.) Further, in Mr. Cooper's
October 14, 2016 letter, he stated, "I will understand you do not intend to respond and
will then proceed in filing a claim directly with the State of California Department of
Industrial Relation, Workers' Compensation Division." (Emphasis added.) He then
applied for a QME under California law to acquire benefits. The QME physician
evaluated Mr. Cooper and assigned an impairment rating. Under Perkins, the statements
in these letters and the affirmative action of pursuing benefits and undergoing a QME
evidence that Mr. Cooper elected California, not Tennessee, law. Mr. Cooper's actions
satisfy part (a) of the test for determining election of remedies application. In Russell, the
employees signed a workers' compensation jurisdictional clause for Arkansas in their
hiring paperwork; however, during compensation proceedings, the employees sought to
reject Arkansas jurisdiction in favor of Tennessee law. Russell, 2017 Tenn. LEXIS at
*23-24. The Court found that the employees, by making their position against Arkansas
jurisdiction known to the insurer and employer early, had "satisfactorily demonstrated
their objection to proceeding under Arkansas law." Id.
Mr. Cooper recently began seeking benefits under Tennessee law-not because he
did not want to proceed under California law but because TGP argued that California
lacks jurisdiction. Unlike Russell, Mr. Cooper did not object to seeking benefits under
California law. Further, even if this Court were to find Mr. Cooper had objected to the
application of California law, this objection did not occur at an early stage in the claim.
Based on the foregoing, the Court holds Mr. Cooper is likely to prevail in
establishing this Court has jurisdiction because the contract for hire was made in
Tennessee. However, the Court additionally holds that Mr. Cooper is unlikely to prevail
on the issue of whether his Tennessee claim is barred under the doctrine of election of
remedies because he affirmatively elected to pursue workers' compensation benefits in
California.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Cooper's claim is denied at this time.
2. This matter is set for a Scheduling Hearing on August 25, 2018, at 10:00 a.m.
Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041
to participate in the Scheduling Hearing. Failure to appear by telephone may result
in a determination of the issues without your further participation.
ENTERED July 10, 2018.
7
LISA A. LOWE, JUDGE
Court of Workers Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification
3. Order Denying Employer's Motion to Compel Responses to Written
Discovery and Motion to Compel medical Releases, January 25, 2018
4. Order, March 5, 2018
5. Request for Expedited Hearing
6. Joint Notice of Objection to Request for Expedited Hearing, Motion to
Bifurcate, and Motion for Discovery Order
7. Employee's Response to Joint Notice of Objection, Employee Objection to
Joint Motion to Bifurcate, and Employee's Objection to Motion for
Discovery Order
8. Order Granting Motion to Bifurcate, Denying Request for In-Person
Expedited Hearing, and Denying Motion for Discovery Order
9. Order Denying Motion to Compel Discovery and Expenses, April 18, 2018
10. Joint Filing of Evidence and Table of Contents
11. Employer/Carrier's and Subsequent Injury Fund's Joint Response to
Request for Expedited Hearing
12. Employee's Reply to Employer/Carrier and Subsequent Injury Fund's Joint
Response to Employee's Request for Expedited Hearing
13. Order Denying Joint Motion to Exclude, April 19, 2018
14. Order Denying Employee's Motion for Contempt, April 20, 2018
15. Order Denying Employee's Motion to Exclude Tragedy Girls Production
and Subsequent Injury Fund's Response to Request for Expedited Hearing,
April 25, 2018
16. Order Denying Employee's Motion to Exclude Tragedy Girls Production
and Subsequent Injury Fund's Request for Expedited Hearing, April 28,
2018
17. Order Staying Filings of Pleadings, April 26, 2018
18.Employer/Carrier's and Subsequent Injury Fund's Supplemental Response
to Employee's Request for Expedited Hearing, May 4, 2018
19. Employee's Motion for Leave and Motion to Strike Employer/Carrier's and
Subsequent Injury Fund's Supplemental response to Employee's Request
for Expedited Hearing, May 7, 2018
20. Order Granting Employee's Motion for Leave, May 8, 2018
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21. Employee's Response to Employer/Carrier and Subsequent Injury fund's
Supplemental Response to Employee's Request for Expedited Hearing,
May 15,2018
22. Employee's Motion for Leave and Notice of Impeachment Evidence Sworn
Testimony Provided to the Court by Employer/Carrier and Subsequent
Injury Fund Witness Anthony Holt, June 7, 2018
Exhibits:
1. Affidavit of Erik Cooper, October 14, 2017
2. Affidavit of Erik Cooper, March 2, 2018
3. Declaration of Erik Cooper, April 3, 2018
4. Declaration of Erik Cooper, April 10, 2018
5. Affidavit of Charles Nave, II
6. Affidavit of John C. Frick, February 6, 2018
7. Affidavit of John C. Frick, May 14, 2018
8. Affidavit of John C. Frick, June 7, 2018
9. Declaration of John C. Frick
10. Written Statement of John C. Frick, September 1, 2017
11. Affidavit of Anthony Holt
12. State of California Qualified Medical Evaluator's Findings Summary Form,
Unrepresented Injured Employee Case Only, June 12, 2017
13. California Workers' Compensation Claim Form, DWC-1
14. Crew Deal Memo, Independent Contractor, June 30, 2016
15. Correspondence from John C. Frick regarding Lease Agreement, April 28,
2014
16. Correspondence from John C. Frick re Agreed Annual Rent Increase, April 24,
2017
17. Correspondence to Division of Workers' Compensation-Medical Unit,
Oakland, California, March 12, 2017
18. Correspondence to John Frick, July 27, 2016
19. Correspondence to John Frick regarding choice of California as beneficiary
state for jurisdictional purposes, July 27, 2018
20. Correspondence to Tragedy Girls Pictures, October 14, 2016
21. Page 3 of Correspondence of Erik Cooper regarding voluntary termination,
September 2, 2016
22. Correspondence to Attorney David Owen, August 21, 2017
23. Correspondence to Attorney David Owen, September 5, 2017
24. Correspondence to Attorney David Owen, October 13, 2017
25. Excerpt of Deposition Transcript of Erik A. Cooper, April 24, 2017, Bates-
stamped E. Cooper 5 8- 72
26. Email Communications between Erik Cooper and Supervisor, Gayle Ocheltree,
July 13-July 27, 2016
9
27. Email Communication between Erik Cooper and Savannah Cyree, July 22-24,
2016
28. Email Communications between Erik Cooper and Various Tragedy Girl
Production Contacts, August 20-0ctober 7, 2016
29. Email Communications between Erik Cooper and Peggie Leidelmeijer,
February 22-July 21, 2017
30. Erik Cooper v. David Bruce Leichenger, Superior Court of the State of
California, for the County of Los Angeles-Central District, Case No.
BD640636
31. Erik Cooper v. Frank D. Barberio, Circuit Court of Sevier County, Tennessee,
Docket No. 15-CV-883IV
32. Non-Union Payroll Report
33. Detail Payroll Journal of John C. Frick
34. Media Services Pay Stubs for John C. Frick
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods of service on July 10, 2018.
Name Mail Fax Email Service sent to:
Erik Cooper, x x Erik Cooper
Self-Represented P.O. Box 1413
Employee Gatlinburg, TN 37738
CooperErik@aol.com
Stephen B. Morton, x stephen.morton@mgclaw.com
Employer's Attorney
Lindsay Hall, x lindsay. n.hall@tn.gov
SIF Attorney
UM, COURT CLE
wc.courtclerk@tn.gov
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