# Travis, Fred v. Carter Express, Inc.

> Tennessee Court of Workers' Compensation Claims · March 13, 2019 · 2019 TN WC 43

URL: https://www.frixlaw.com/law-library/cases/4560317

## Case

- **Court:** Tennessee Court of Workers' Compensation Claims
- **Decided:** March 13, 2019
- **Citations:** 2019 TN WC 43
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Pamela Johnson
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
Mar 13, 2019
01:53 PM(ET)

TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KNOXVILLE
FRED TRAVIS, II, ) Docket No. 2018-03-0237
Employee, )
V. )
CARTER EXPRESS, INC., ) State File No. 14934-2018
Employer, )
And )
PROTECTIVE INSURANCE ) Judge Pamela B. Johnson
COMPANY, )
Carrier. )

REMAND EXPEDITED HEARING ORDER GRANTING ATTORNEY’S FEES
UNDER TENNESSEE CODE ANNOTATED SECTION 50-6-226(d)(1)(B)

This matter came before the Court on February 28, 2019, on remand from the
Workers’ Compensation Appeals Board. Following an Expedited Hearing, this Court
concluded that Mr. Travis was entitled to recover attorney’s fees under Tennessee Code
Annotated section 50-6-226(d)(1)(b) (2018). Carter appealed, and the Workers’
Compensation Appeals Board vacated the award of attorney’s fees and remanded the case
for consideration of this issue within the framework in Thompson v. Comcast Corp. The
Court grants Mr. Travis’s request.

History of Claim

The relevant facts are contained in the Expedited Hearing Order’ and Appeals Board
Opinion” and are incorporated as if set forth below. For context, Mr. Travis, a Tennessee
resident, injured his right shoulder while working for Carter. He testified that he first
injured his left shoulder on the evening of November 2, 2017, while cranking the tractor’s
landing gear. At his first delivery stop on the morning of November 3, he experienced a
sharp pain in his right shoulder when he pushed on the trailer’s swing doors and while

' Travis v. Carter Express, Inc., No. 2018-03-0237, 2018 TN Wrk. Comp. LEXIS (Sept. 6, 2018).

? Travis v. Carter Express, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 67 (Dec. 21, 2018).
]
strapping/unstrapping the cargo. At the next stop, he felt increased pain with pinning the
swing door back and while climbing into the tractor.

The next day, Mr. Travis informed his driver manager that he hurt his shoulder at
work and needed medical treatment. That same day, he went to Fast Pace Urgent Care
Clinic and stated that he was “not sure what he has done, yesterday notice[d] tightness in
[right] shoulder.” He reported that he drove an eighteen-wheeler and related his
complaints to getting in and out of the truck or loading it. In his injury report, he noted
his injury occurred on November 3 at 10:00 a.m. and caused by “normal job duty” such
as “climbing into truck or trailer,” “entering or exiting truck or trailer,” or “tightening
straps.”

He ultimately came under the care of Dr. Sean Grace, who noted, “[D]uring the
course of his work as a truck driver he was lifting the trailer door in the back and felt
sharp pain his upper arm and shoulder area.” Dr. Grace recommended an MR
arthrogram, but Carter denied the claim before it was administered. Despite Carter’s
denial of treatment, Mr. Travis returned to Dr. Grace, who confirmed that his right-
shoulder injury was directly related to the work incident and indicated he would likely
benefit from surgery.

Carter denied Mr. Travis’s claim, arguing his description of injury varied between
his injury reports, medical records, affidavit, and testimony. It also asserted that
Tennessee has no jurisdiction, introducing an agreement signed by Mr. Travis at the time
of hire in which he agreed that all claims would be governed by the Indiana Workers’
Compensation Act.

In its Expedited Hearing Order, the Court held Mr. Travis presented sufficient
evidence that he would likely to prevail at a hearing on the merits in proving that:

* Carter filed Mr. Travis’s claim with the Workers’ Compensation Board of Indiana. It gave notice to
Indiana of its inability to determine liability and requested additional time on two separate occasions. On
November 17, 2017, Carter noted it was “trying to determine compensability, claimant does not know
how he strained his shoulder.” On December 4, 2017, Carter explained it was “REQUESTING
MEDICAL INFORMATION FROM THE PROVIDER SO WE CAN_ DETERMINE
COMPENSABILITY.” (Emphasis in original).

‘ The parties introduced three reports of injury. The Indiana First Report of Employee Injury, prepared by
Carter Safety Director Rick Wisener, noted a November 3, 2017 injury date at 10:00 a.m. and an
unknown cause of injury to the right shoulder. The IAIBC First Report of Injury, prepared by Claims
Adjuster Amy Miller, noted a November 3, 2017 injury date at 10:00 a.m. and indicated, “CLMT WAS
EITHER ENTERING AND EXITING TRUCK AN SPRAINED RIGHT SHOULDER. UNKN
DETAILS.” (Emphasis in original). The Employee’s Report of Injury, prepared by Mr. Travis, also
noted a November 3, 2017 injury date at 10:00 a.m. and indicated injury caused by “normal job duty”
while he was “climbing into truck or trailer,” or “entering or exiting truck or trailer, or tightening straps.”

2
1) Carter’s forum-selection clause was unenforceable and he was entitled to seek
benefits under Tennessee law.

2) He suffered an injury caused by a specific incident, or set of incidents, identifiable
by time and place of occurrence.

3) His injury arose primarily out of and in the course and scope of his employment
and caused the need for medical treatment.

4) He is entitled to medical and temporary partial disability benefits.

5) Carter wrongfully failed to timely initiate benefits that it owed, and its failure to
timely initiate benefits justified an award of attorney’s fees and costs at this
interlocutory stage under section 50-6-226(d)(b)(1).

On appeal, the Appeals Board affirmed this Court’s conclusions on all counts
except as to the award of attorney’s fees and costs. The Appeals Board concluded this
Court failed to consider whether this case falls within the limited circumstances
supporting an award of attorneys’ fees and costs at an interlocutory stage. It therefore
vacated that part of the Expedited Hearing Order and remanded for further consideration.

On remand, the parties appeared before the Court on January 4, 2019. Upon their
agreement, the Court set Mr. Travis’ deadline to file his fee petition and brief on January
25, Carter’s deadline to file its responsive brief on February 22, and the hearing date on
February 28. Before the deadline to file and again during the hearing, Carter moved for a
continuance, which the Court denied.

Mr. Travis’s Request for Attorney’s Fees

Mr. Travis argued that this is an appropriate case for awarding attorney’s fees and
costs at the interlocutory stage. Following an Expedited Hearing, this Court ruled that
Carter’s failure and refusal to timely initiate benefits was incorrect. The Appeals Board
affirmed. He asserted this case falls within the extremely limited circumstances
identified by the Appeals Board.

Concerning the uncertainties inherent in litigation, Mr. Travis argued no
uncertainties exist in this case concerning the Indiana forum-selection clause, as it was
not enforceable when signed and that will not change with the passage of time.

Addressing the limited issues typically addressed at Expedited Hearings, section
50-6-239(d)(1) authorizes the Court to determine issues concerning the provision of
temporary disability and medical benefits, and section 50-6-226(d)(1)(B) authorizes the
Court to award costs and fees on finding that these benefits were owed.

Considering that discovery and medical proof is often incomplete, Mr. Travis
submitted proof from Fast Pace and Dr. Grace that substantiated a right-shoulder injury
caused by work. Carter focused on Mr. Travis’s purported inability to identify a specific

3
incident, but it ignored section 50-6-102(14), which defines accidental injury as one
caused by a specific incident, or set of incidents, arising primarily out of and in the course
and scope of employment. These findings are unlikely to change with additional
discovery or medical proof.

Regarding the standard of proof, Mr. Travis asserted Carter denied his claim on an
election of remedies/forum-selection clause and inability to identify a specific incident,
ignoring that he reported a set of incidents. The Court’s findings on these issues were
based on an interpretation of the law, not on how changing facts could apply to the law.

Finally, analyzing the Court’s ability to make different determinations at a
Compensation Hearing, Mr. Travis argued that the Court’s and Appeals Board’s opinions
on compensability were based on an interpretation of the law and the law is unlikely to
change between the Expedited and Compensation Hearings.

Mr. Travis argued that the Court should give meaning to section 50-6-
226(d)(1)(B) by awarding costs and fees. To deny his request will encourage Carter to
continue to erroneously, incorrectly, and inconsistently fail to timely initiate benefits and
further limits attorney involvement on behalf of injured employees.

Mr. Travis’s attorney, Brad C. Burnette, submitted an affidavit addressing his
experience, the time required and work involved, and nature of the fee arrangement with
Mr. Travis. Attorney Burnette asserted he entered into a contingency fee agreement with
Mr. Travis and charged an hourly fee under section 50-6-226(d)(1)(B) of $350 for
himself and $90 for his paralegal. Attorney Burnette submitted detailed fee entries
totaling 78.10 in attorney hours and 10.10 in paralegal time, for a total of $28,244.

Mr. Travis also submitted the affidavit of Attorney Jonathan Doolan, who stated,
within a reasonable degree of professional certainty, that the time dedicated by Attorney
Burnette was reasonable, necessary, within the common and customary practice of
competent attorneys practicing in workers’ compensation, and consistent with the
Supreme Court Rules regarding fees.

Carter opposed Mr. Travis’s fee petition on grounds that its failure to initiate
benefits was not erroneous, incorrect, or otherwise inconsistent with the law or facts at
the time the decision was made. Carter argued that Mr. Travis repeatedly indicated
uncertainty in what caused his alleged injury and failed to identify a specific incident, or
set of incidents, identifiable by time and place of occurrence. Carter further argued that
Dr. Grace based his causation opinion on an unreported description of injury. It also
argued that Indiana law governed this claim. It concluded that its failure to initiate
benefits was reasonable.
Carter further asserted that an award of attorney’s fees is premature, given that
medical treatment remains incomplete. It argued that diagnostic testing has not been
completed and Mr. Travis “may have a SLAP tear or rotator cuff tear or he may have a
non-work-related tumor, or some other non-work-related condition.” It asserted that
considering attorney’s fees before a confirmed diagnosis is premature and presents a
great risk to employers. It asked the Court to deny the request, or in the alternative to
delay its decision until the case is more fully developed.

Finally, although Carter offered no specific objections to the Attorney Burnette’s
affidavit and fee entries, it asked the Court to limit the fees to a reasonable hourly rate
and reasonable time.

Findings of Fact and Conclusion of Law

The General Assembly amended the Workers’ Compensation Law in 2016 to
authorize trial courts to award attorneys’ fees and costs under section 50-6-226(d)(1)(B)
when an employer wrongfully denies benefits or fails to timely provide benefits.

The 2016 version of this subsection provided in part:

[T]he court of workers’ compensation claims may award reasonable
attorneys’ fees and reasonable costs ... when the employer:

Wrongfully denies a claim by filing a timely notice of denial, or fails to
timely initiate any of the benefits to which the employee is entitled under
this chapter, including medical benefits under § 50-6-204 or temporary or
permanent disability benefits under § 50-6-207, if the workers’
compensation judge makes a finding that such benefits were owed at an
expedited hearing or compensation hearing.

(Emphasis added). The 2016 amendment to subdivision (d)(1)(B) applied to injuries
occurring on or after July 1, 2016.

In Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *26
(Jan. 30, 2018), the Appeals Board determined that the word “wrongfully” as used in the
statute above applied only to the denial of a claim but not to the failure to timely initiate
benefits.

In 2018, the Generally Assembly revised this subsection, which now reads:

In addition to attorneys’ fees provided for in this section, the court of
workers’ compensation claims may award reasonable attorneys’ fees and
reasonable costs ... when the employer:

5
Wrongfully denies a claim or wrongfully 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, temporary or permanent
disability benefits under § 50-6-207, or death benefits under § 50-6-210 if
the workers’ compensation judge makes a finding that the benefits were
owed at an expedited hearing or compensation hearing. For purposes of
this subdivision (d)(1)(B), “wrongfully” means erroneous, incorrect, or
otherwise inconsistent with the law or facts.

(Emphasis added).

In Andrews v. Yates Services, LLC, 2018 TN Wrk. Comp. App. Bd. LEXIS 22, at
*8-9 (May 8, 2018), the Appeals Board noted that the recently-enacted amendment
applied only to injuries occurring on or after April 18, 2018.

While the 2018 version is not applicable to the present case—Mr. Travis’s injury
date is November 2-3, 2017—the 2018 version is informative. In Yates, the Appeals
Board found the 2018 version instructive when determining the definition of “wrongfully
denies” as used in the 2016 version of section 50-6-226(d)(1)(B). Jd. at *9. The Appeals
Board concluded that “wrongfully denies” in the earlier version requires a finding that an
employer’s denial was erroneous, incorrect, or otherwise inconsistent with the law or
facts to support a claim for reasonable attorneys’ fees and expenses at the time the
decision was made. Jd. at *10, 13. However, the Appeals Board cautioned, “[A]
decision to award attorneys’ fees and expenses at an interlocutory state of a case should
be made only in extremely limited circumstances.” See Thompson, at *28-29.

Here, using the 2016 version, the Court must determine whether, at the time the
decision was made, Carter “wrongfully denie[d] a claim by filing a timely notice of
denial, or fail[ed] to timely initiate any of the benefits to which [Mr. Travis] is entitled
under this chapter, including medical benefits under § 50-6-204.” Carter gave notice to
Indiana of its inability to determine liability and requested additional time on two
separate occasions and noted it was “trying to determine compensability.” However,
there is no evidence that Carter filed a notice of denial under either Indiana or Tennessee
law, so the first part of section 50-6-226(d)(1)(B) is inapplicable.

The Court is therefore left with determining whether, at the time the decision was
made, Carter failed to timely initiate any of the benefits to which Mr. Travis was entitled.
The Court considers the information available to Carter at the time it failed to provide
medical and temporary disability benefits. The Court holds that Carter’s failure to timely
initiate benefits was incorrect, erroneous, and inconsistent with the law or facts for
several reasons.
First, section 50-6-114 states no contract or agreement shall in any manner operate
to relieve any employer of any obligation created by the Tennessee Workers’
Compensation Law. The forum-selection clause, standing on its own, was therefore void
from the outset.

Second, even if the forum-selection clause were enforceable, Mr. Travis did not
make an election of remedies to recover under Indiana law. Signing the agreement at the
time of hire was a condition of employment. After his work injury, he neither actively
pursued nor knowingly or voluntarily received benefits under Indiana law.

Third, Mr. Travis timely reported a work injury, but Carter failed to timely initiate
treatment without sufficient reason. Ms. Riley suggested he seek treatment at an urgent-
care clinic, which he did. Fast Pace referred Mr. Travis to an orthopedic physician, who
determined that his right-shoulder injury was directly related to the work incident.
However, Carter failed to authorize care at Fast Pace or with Dr. Grace, nor did it provide
a panel of physicians. Carter offered no countervailing testimony to refute Mr. Travis’s
testimony or Dr. Grace’s opinions.

Fourth, Mr. Travis unequivocally testified that he provided his restrictions to Ms.
Riley, and Carter failed to accommodate his restrictions or return him to work. Thus, the
Court finds Carter wrongfully failed to timely initiate medical and temporary disability
benefits that it owed.

The Court must now address whether this case falls within the “extremely limited
circumstances” under Thompson. In Thompson, the Appeals Board cautioned trial courts
to consider:

The uncertainties inherent in litigation, the limited issues typically
addressed at expedited hearing, the fact that discovery and medical proof
often incomplete at an interlocutory stage of a case, the standard of proof
that applies at expedited hearings, and the fact that a trial judge’s
determination at an interlocutory hearing are subject to change at any time
prior to the entry of a final compensation hearing order.

Id. at *26. The Appeals Board affirmed the award of attorney’s fees in Thompson
because the employer declined to authorize treatment based solely on its own
interpretation of the medical records and without seeking an expert opinion to support its
denial.

Considering the Thompson factors, the Court concludes Carter’s failure to timely
initiate benefits justifies an award of attorney’s fees and costs at this interlocutory stage
and in these extremely limited circumstances. Here, just as in Thompson, Carter declined
to authorize treatment or provide temporary disability benefits based on its own

7
interpretation that Mr. Travis’s reports of injury were inconsistent and without seeking an
expert opinion to rebut Dr. Grace’s causation opinion and support its denial.

Mr. Travis and the medical records consistently demonstrated that he injured his
right shoulder at work. Carter offered no evidence to rebut Mr. Travis’s description of
his injury. Mr. Travis credibly offered reasonable explanations for any inconsistencies in
the medical records or his injury report. Carter also did not offer any expert medical
opinion to support its refusal to authorize medical treatment despite receiving timely
notice of an injury and its driver manager instructing Mr. Travis to seek medical
attention.

Carter also failed to initiate benefits under Tennessee law claiming Indiana law
governed. Moreover, Carter did not provide benefits under Indiana law. The forum-
selection clause was not enforceable when it was signed, and this Court, affirmed by the
Appeals Board, concluded that Tennessee has jurisdiction.

Instead, Carter delayed took steps at every stage to delay Mr. Travis’s claim.
Twice, it sought extensions under Indiana law to provide benefits, and twice it was
denied. Despite no evidence to rebut Mr. Travis’s testimony or Dr. Grace’s causation
opinion, Carter continued to deny the claim and failed to initiate benefits, forcing Mr.
Travis to file a Petition for Benefit Determination and Request for Expedited Hearing.
Even after agreeing to the deadlines regarding the fee petition, Carter twice sought
extensions from this Court seeking additional delay.

As the Appeals Board noted, uncertainties exist in litigation. Issues at an
Expedited Hearing often differ from those at a Compensation Hearing, and different
burdens of proof apply. However, while discovery and medical proof continue to
develop after an Expedited Hearing, an employer cannot be allowed to deny benefits and
delay recovery without cause, relying solely only upon its own interpretation of the
employee’s description of injury and medical records. Additional discovery and medical
proof, a higher burden of proof, and the passage of time will not change the fact that
Carter’s failure to initiate benefits was erroneous, incorrect, and inconsistent with the law
and facts at the time the decision was made.

The Workers’ Compensation Law requires an employer to provide an injured
employee with medical treatment upon timely notice of a work injury. When an
employer fails to timely initiate the benefits to which the employee is entitled, the
General Assembly has determined that an employer may be held liable for the injured
employee’s attorney’s fees following an Expedited Hearing. The General Assembly
made no change to the attorney’s fees provision when it revised section 50-6-
226(d)(1)(B) in 2018. The purpose of the statute is defeated if an injured employee must
wait until a Compensation Hearing to recover attorney’s fees incurred for recovering
temporary disability and medical benefits. Accordingly, the Court concludes Mr. Travis

8
is entitled to recover attorney’s fees and costs under section 50-6-226(d)(b)(1) at this
interlocutory stage and in these extremely limited circumstances.

Next, the Court must determine whether Mr. Travis’s attorney’s fees are
reasonable, considering the factors in Tennessee Supreme Court Rules 8, Rules of
Professional Conduct 1.5(a).

Mr. Travis’s attorney attested that the time, labor, and skill required to prepare and
try this matter are supported by the time entries. He argued that, through his
representation, Mr. Travis was finally paid back temporary disability benefits that he was
owed, and Carter paid his outstanding medical bills related to his limited treatment. The
time required with these efforts was significant and precluded or delayed other work
available. Further, he and his staff are experienced in workers’ compensation. Attorney
Doolan’s affidavit provides that the time dedicated by Attorney Burnette was reasonable,
necessary, within the common and customary practice of competent attorneys practicing
in workers’ compensation, and consistent with the Supreme Court Rules regarding fees.

Other than Carter’s counsel’s argument, it offered no countervailing evidence to
support its contention that Mr. Travis’s fees were unreasonable under the Rules of
Professional Conduct.

Therefore, considering the affidavits of Attorneys Burnette and Doolan, the
detailed fee entries, and the claim as a whole, the Court concludes Mr. Travis
demonstrated by a preponderance of the evidence that his attorney’s fee is reasonable.
Thus, he shall receive fees totaling $28,244 under subsection 226(d)(1)(B).

Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry of this
Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The Insurer or
Self-Insured Employer must submit confirmation of compliance with this Order to the
Bureau by email to WCCompliance.Program@tn.gov no later than the seventh business
day after entry of this Order. Failure to submit the necessary confirmation within the
period of compliance may result in a penalty assessment for non-compliance.

It is so ORDERED.

ENTERED March 13, 2019. oO)

OM

PAMELA B. JOHNSON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX

9
Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Additional Issues, Objections, and/or Defenses submitted by Employee

4. Additional Issues, Objections, and/or Defenses submitted by Employer

5. Request for Expedited Hearing

6. Affidavit of Fred Travis, III

7. Notice of Objection to Expedited Hearing on the Record

8. Employer’s Response to Request for Expedited Hearing

9. Expedited Hearing Order

10. Expedited Hearing Transcript

11. WCAB Opinion

12. Order Setting Deadlines to File Briefs and Oral Argument

13. Employee’s Brief Supporting Request for Attorney’s Fees and Affidavits of
Attorneys Burnette and Doolan

14. Employer’s Motion to Compel and for Continue

15. Employee’s Response to Motion to Compel and for Continue

16. Order Denying Motion to Continue

17. Employer’s Brief on the Attorney Fee Issue

Exhibits:

1. Affidavit of Fred Travis, III

2. Indiana Workers’ Compensation First Report of Work Injury

3. JAIABC Release 1 First Report of Injury Form

4. Third Coast Underwriters Employee’s Report of Injury

5. Notice of Inability to Determine Liability/Request for Additional Time — filed
November 20, 2017 — Rejected

6. Notice of Inability to Determine Liability/Request for Additional Time — filed
December 4, 2017

7. Agreement as to Jurisdiction and Notice as to Indiana Workers’ Compensation
Law

8. GPS Log of November 2-3, 2017

9. Cellular Phone Record of Injury Report, dated November 4, 2017

10. Weather History for November 3, 2017

11. Medical Records of Fast Pace Medical Clinic, PLLC

12. Medical Records of Dr. Sean Grace, Tennessee Orthopaedic Clinic

13. Medical Expense of DJO Global

14. Affidavit of Brad C. Burnette

15. Detailed Time Entries

16. Affidavit of Jonathan Doolan

10
CERTIFICATE OF SERVICE

I certify that a true and correct copy of the Remand Expedited Hearing Order was
sent to the following recipients by the following methods of service on March 13, 2019.

Employer’s Attorney

Name Certified | Fax | Email | Service sent to:
Mail
Brad C. Burnette, X | bradburnette@foxandfarleylaw.com
Employee’s Attorney
J. Allen Brown, X | allen@jallenbrownpllc.com

-.
IP. i, Li tpt soil Pin sat >

PENNY/SHRUM, Court Clerk (2
WC.CourtClerk@tn.gov

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4560317. Public record. Not legal advice.