The opinion
FILED
Jul 10, 2025
08:38 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Martha McCool ) Docket No. 2022-08-0687
)
v. ) State File No. 99553-2019
)
Professional Care Services, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Shaterra R. Marion, Judge )
Order Vacating in Part and Remanding
In this appeal, the employer challenges the trial court’s order requiring it to
authorize a second opinion examination on the issue of surgery. The employee was
injured when she was attacked in the employer’s parking lot in 2019. In 2023, the parties
entered into a settlement agreement that, among other provisions, left open the
employee’s entitlement to reasonable and necessary future medical expenses as provided
in Tennessee Code Annotated section 50-6-204. That settlement agreement was
approved by the trial court. In 2024, one of the authorized treating physicians
recommended additional surgery, which the employer’s insurer authorized. However,
prior to agreeing to undergo this surgery, the employee asked for a second opinion as to
the surgery recommendation, which the employer declined to provide. The employee
then filed a new petition asking the court to order the employer to authorize a second
opinion examination and seeking an award of attorneys’ fees. Following unsuccessful
mediation and a hearing, the trial court entered an order compelling the employer to
authorize the second opinion examination and determined the employee was entitled to
attorneys’ fees. In the order, the court instructed the employee’s attorney to file a motion
presenting additional evidence with respect to the attorneys’ fee claim, which the
employee’s attorney did. Sixteen days after the court’s order was issued, the employer
filed a notice of appeal. Because we conclude the trial court’s compensation order is
incomplete at this point, we hold this appeal in abeyance and remand the case for
additional findings.
Motions for Additional Findings
On April 23, 2025, the trial court issued a “Compensation Order Granting Medical
Benefits,” and the employer filed a notice of appeal sixteen days later, well within the
1
time limit for the appeal of a compensation order. Tenn. Code Ann. § 50-6-217(a)(2)(B).
However, that order did not resolve all pending issues in the case. Instead, the court
instructed the employee’s attorney to file a motion offering additional evidence for the
court’s consideration on the attorneys’ fee issue. The employee’s attorney filed such a
motion on May 5, and the record before us contains no response to that motion.
We addressed a similar issue in Garassino v. Western Express, Inc., No 2014-07-
0013, 2016 TN Wrk. Comp. App. Bd. LEXIS 82 (Tenn. Work. Comp. App. Bd. Nov. 7,
2016). In that case, the trial court issued a compensation order, part of which awarded
“any and all costs” related to a medical examination of an expert. Id. at *3. Twelve days
after the court issued its compensation order, the employee filed a motion for
discretionary costs, and the employer filed a response five days later. Id. The trial court
then issued another order addressing the ambiguity in its prior order and granting the
employee’s motion for discretionary costs. Id. at *4. The employer filed a notice of
appeal, which was filed more than thirty days after the court’s original compensation
order, but less than thirty days after the court’s subsequent order resolving the costs issue.
Id. The employee sought to have the appeal dismissed as untimely. Id.
In addressing the timeliness of the appeal, we concluded as follows:
Under these circumstances, and looking to substance over form, we
conclude that Employee’s motion for discretionary costs and Employer’s
response in opposition to this motion sought additional findings of fact and
conclusions of law pursuant to Rule 52.02 concerning whether Dr. West’s
fees for reviewing medical records and conducting a physical examination
of Employee were recoverable costs. Both the parties and the trial court
treated the issue as unresolved, and a subsequent hearing was conducted to
address the dispute. The trial court then issued another order that included
additional findings of fact and conclusions of law not contained in the
previous order. Having concluded that Employee’s motion was filed in
accordance with Rule 52.02, the deadline for filing a notice of appeal was
extended until after the issuance of the trial court’s order resolving the
motion as provided for in Rule 59.01. Thus, Employer’s August 9, 2016
notice of appeal was timely.
Id. at *11. Our opinion in Garassino was appealed, and the Tennessee Supreme Court’s
Special Workers’ Compensation Appeals Panel affirmed our decision. Garassino v.
Western Express, Inc., No. M2016-02431-SC-R3-WC, 2018 Tenn. LEXIS 60 (Tenn.
Workers’ Comp. Panel Feb. 8, 2018). In addressing the timeliness issue, the Appeals
Panel explained:
Whether this appeal was timely depends on the type of motion filed after
the entry of the trial court’s compensation order. In making that
2
determination, the court will look to the substance rather than form. We
agree with the Appeals Board that Rule 52.02 of the Tennessee Rules of
Civil Procedure controls in this case. Employee’s motion requested the
trial court make an additional finding regarding the amount of the
discretionary cost award. Tennessee Rule of Civil Procedure 59.01
provides that a motion made pursuant to Rule 52.02 extends the time for
initiating an appeal. Accordingly, we affirm the Appeal Board’s conclusion
that Employer’s appeal was timely.
Id. at *6 (internal quotation marks and citation omitted). We conclude a similar analysis
is appropriate here. Although the trial court issued a “Compensation Order” on April 23,
the terms of that order required the employee’s attorney to file a motion and submit
additional evidence. That motion was filed but, to date, the court has not ruled on it. In
considering substance over form, we conclude the employee’s motion sought additional
findings pursuant to Tennessee Rule of Civil Procedure 52.02, and we further conclude
the filing of that motion “extend[ed] the time for taking steps in the regular appellate
process” as provided in Tennessee Rule of Civil Procedure 59.01.
As a result, we remand the case for the trial court to address the pending motion
and make additional findings with respect to the claim for attorneys’ fees. Until the court
issues an order resolving that issue, this appeal is held in abeyance. The appeal will
proceed in the normal course once the trial court issues its order.
Legal Standard for Awards of Attorneys’ Fees
For purposes of efficiency on remand, we also address the court’s determination
that the employee’s attorney is entitled to an attorney’s fee. The court concluded that the
employer’s refusal to authorize the second opinion examination was “erroneous,
incorrect, or otherwise inconsistent with the law or facts.” In applying that standard, the
court relied on our opinion in Walls v. United Techs. Corp., No. 2019-05-0371, 2019 TN
Wrk. Comp. App. Bd. LEXIS 27, at *16-17 (Tenn. Workers’ Comp. App. Bd. Aug. 6,
2021). In Walls, we defined the word “wrongfully” as used in the context of a claim for
attorneys’ fees brought pursuant to Tennessee Code Annotated section 50-6-226(d)(1)(B)
(2018). Id. at *17-18. We also made clear that a party seeking attorneys’ fees can seek
to prove entitlement to such fees under subsection 226(d)(1)(A), subsection 226(d)(1)(B),
or both, as the evidence may show. Id.
However, in 2023, the General Assembly amended Tennessee Code Annotated
section 50-6-226(d)(1). It deleted the word “wrongfully” in subsection 226(d)(1)(B) and
inserted the word “unreasonably.” See 2023 Pub. Chap. 145, § 10. To date, we have not
been asked to address the impact of that amendment on an employee’s claim for
attorneys’ fees under subsection 226(d)(1). As a result, there has been no analysis
following the 2023 amendment addressing whether the word “unreasonably” in the
3
context of this statute has the same or a different meaning as the word “wrongfully.” 1
We therefore vacate the trial court’s order to the extent it did not include an analysis of
the correct legal standard in assessing the employee’s entitlement to an award of
attorneys’ fees given the 2023 amendment to subsection 226(d)(1)(B). On remand,
therefore, the court should address whether the employee is entitled to an award of
attorneys’ fees under the current version of Tennessee Code Annotated section 50-6-
226(d)(1) and, if so, the amount of any such award.
Given the conclusions we have reached in this order, we CANCEL the oral
argument currently scheduled for August 1, 2025, and we REMAND the case for the trial
court to take further action as outlined above.
PER CURIAM
1
2023 Public Chapter 145 also makes clear that the amendment to subsection 226(d)(1) “takes effect
upon becoming a law.” The bill was signed into law by the Governor on April 13, 2023. The actions
forming the basis of the employee’s claim for attorneys’ fees occurred after that date.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Martha McCool ) Docket No. 2022-08-0687
)
v. ) State File No. 99553-2019
)
Professional Care Services, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Shaterra R. Marion, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s order in the referenced case
was sent to the following recipients by the following methods of service on this the 10th day of
July, 2025.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Gregory H. Fuller X ghfuller@mijs.com
Brayden Hunter brhunter@mijs.com
Jonathan May X jmay@forthepeople.com
jvavak@forthepeople.com
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