The opinion
FILED
Aug 13, 2025
02:51 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
MARTHA MCCOOL, ) Docket No.: 2022-08-0687
Employee, )
v. )
PROFESSIONAL CARE SERVICES, ) State File No.: 99553-2019
Employer, )
And )
BRIDGEFIELD CAS. INS. CO., ) Judge Shaterra R. Marion
Insurer. )
____________________________________________________________________________
COMPENSATION ORDER DENYING ATTORNEY’S FEES
Ms. McCool filed a petition asking that the Court furnish a second opinion regarding
surgery recommended by the authorized treating physician. She also asked for attorney’s
fees for Professional Care Services’ failure to furnish that opinion.
The Court ordered the second opinion and determined Ms. McCool was entitled to
attorney’s fees. The Court instructed Ms. McCool to file a motion for those fees, and she
did. However, Professional Care Services appealed the compensation order before
responding to the motion. Thus, the Appeals Board vacated the attorney’s fees award and
remanded for additional findings considering the current unreasonable denial standard in
Tennessee Code Annotated section 50-6-226(d)(1)(B) (2024).
After allowing both parties to supplement their filings, the Court holds Ms. McCool
is not entitled to attorney’s fees.
Section 50-6-226(d)(1) provides:
[T]he court of workers’ compensation claims may award reasonable
attorneys’ fees . . . incurred when the employer:
(A) Fails to furnish appropriate medical . . . treatment or care . . . to an
employee provided for in a[n] . . . expedited hearing order, compensation
hearing order, or judgment under this chapter; or
(B) Unreasonably . . . fails to timely initiate any of the benefits to which the
employee or dependent is entitled under this chapter, including medical
benefits under § 50-6-204, . . . if the workers’ compensation judge makes a
finding that the benefits were owed at an expedited hearing or compensation
hearing.
Ms. McCool states in her brief that she only seeks an award of attorney’s fees under
subsection (A) of the statute. She contends that she is entitled to attorney’s fees because
she was entitled to a second opinion under law and Professional Care Services failed to
provide it.
Professional Care Services, on the other hand, argues that Ms. McCool is not
entitled to attorney’s fees under subsection (A) because a second opinion is not “treatment”
as contemplated in section 226 but merely an evaluation.
The Court agrees with Professional Care Services. A second opinion does not
constitute treatment, but is merely that, an opinion. Though the Court ordered another
opinion, that does not transform the opinion into treatment. Thus, an opinion does not fall
within the contemplated “treatment or care” in subsection 226(d)(1)(A) that would allow
attorney’s fees for failing to provide it.
While Ms. McCool did not seek attorney’s fees under subsection (B), the Appeals
Board directed that the Court address Ms. McCool’s entitlement to fees under that
subsection. The Court holds Ms. McCool would not be entitled to them.
Effective April 13, 2023, the standard for fees under subsection (B) was changed
from a “wrongful” denial to an “unreasonable” denial. The Appeals Board has not offered
guidance on the definition of “unreasonable” in this context since the statutory change.
Dictionaries define “unreasonable” as: “Not guided by reason; irrational or capricious,”
Black’s Law Dictionary 1537 (7th ed. 1999); “Not governed by or acting according to
reason; not conformable to reason: absurd; exceeding the bounds of reason or moderation,”
Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/unreasonable (last visited August 12, 2025).
Professional Care Services argues that fees under subsection (B) would be improper
because its denial of a second opinion was not “unreasonable.” Rather, the decision to deny
the second opinion was based on a reasonable interpretation of Tennessee authority,
including section 204(a)(3)(C).
Although the Court disagreed with Professional Care Services’ interpretation and
awarded a second opinion, Professional Care Services’ actions did not amount to “irrational
or capricious,” or “absurd” conduct under accepted dictionary definitions and was not
unreasonable.
Therefore, the Court holds that Ms. McCool is not entitled to attorney’s fees under
either statutory subsection.
IT IS ORDERED.
ENTERED August 13, 2025.
________________________________________
Judge Shaterra R. Marion
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on August 13, 2025.
Name Email Service sent to:
Jonathan May, X jmay@forthepeople.com
Employee’s Attorney jvavak@forthepeople.com
Brayden Hunter, X brhunter@mijs.com
Gregory Fuller, ghfuller@mijs.com
Employer’s Attorneys
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
¾ If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
¾ If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,
if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing 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 filing 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 your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ
ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗
ප Expedited Hearing Order filed on _______________ ප Motion Order filed on ___________________
ප Compensation Order filed on__________________ ප Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ܆Employer ܆Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ܆Employer ܆Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
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