The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Nicole D. Bowlin ) Docket No. 2017-07-0224
)
v. ) State File No. 76010-2016
)
Servall, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims, )
Allen Phillips, Judge )
Affirmed and Certified as Final
This appeal involves a claim for attorney’s fees pursuant to Tennessee Code Annotated
section 50-6-226(a)(1). Following an expedited hearing, the Court of Workers’
Compensation Claims ordered the employer to pay the medical expenses for the
employee’s treatment but denied the employee’s request for attorney’s fees for a
“wrongfully” denied claim pursuant to Tennessee Code Annotated section 50-6-
226(d)(1)(B). The court did, however, award attorney’s fees pursuant to section 50-6-
226(a)(1) based on the amount of unpaid medical bills that the court ordered the employer
to pay. In an appeal of that order, we determined it was premature, under the circumstances
presented, for the trial court to award attorney’s fees at the expedited hearing stage of the
case, vacated the part of the court’s order awarding attorney’s fees, and remanded the case.
The parties subsequently settled the employee’s claim but advised the trial court the
employer did not agree to pay an attorney’s fee based on a percentage of the medical bills
it had paid as previously ordered by the court. Following a compensation hearing in which
the parties stipulated that the employer had paid the contested medical bills under the
medical fee schedule, the trial court found the settlement provided the employee
substantially the benefits to which she was entitled and approved the settlement, but it
declined to order the employer to pay an attorney’s fee on the disputed medical benefits
based upon the language in section 50-6-226(a)(1). The employee has appealed. We affirm
and certify as final the trial court’s order approving the settlement of the employee’s claim
and denying the employee’s request for attorney’s fees on the contested medical benefits.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.
Monica R. Rejaei, Memphis, Tennessee, for the employee-appellant, Nicole D. Bowlin
1
Gordon Aulgur, Lansing, Michigan, for the employer-appellee, Servall, LLC
Factual and Procedural Background
A recitation of the full history of the litigation is not necessary to address the present
appeal, but we have, for context, set out portions of the factual and procedural background
from our earlier decision following the employer’s appeal of a September 2017 expedited
hearing order of the Court of Workers’ Compensation Claims.
Nicole Bowlin (“Employee”) suffered injuries in a motor vehicle accident on
September 29, 2016, while in the course and scope of her employment with
Servall, LLC (“Employer”), a pest control company. Employee, a pest
control technician, was travelling to a customer’s home when she rear-ended
a vehicle stopped at an intersection. She was transported by ambulance to
Volunteer General Hospital in Martin, Tennessee, where she was diagnosed
with a fracture of her cervical spine. Due to the nature of her injuries, she
was airlifted to Regional Medical Center in Memphis.
A drug screen performed after the accident revealed the presence of
THC, a metabolite of marijuana. Employer denied Employee’s claim for
workers’ compensation benefits based on the drug screen. Employer took
the position that its status as a participant in Tennessee’s Drug-Free
Workplace Program (“the Program”) in years prior to Employee’s accident
entitled it to a presumption that Employee’s drug use was the proximate
cause of her injuries as provided for in Tennessee Code Annotated section
50-6-110(c)(1). . . .
....
The trial court found Employer was not a member of the Program
when Employee was injured and thus was not entitled to the presumption in
section 50-6-110(c)(1). The court also concluded that Employer otherwise
failed to prove Employee’s marijuana use was the proximate cause of the
accident and ordered Employer to provide medical benefits and to pay
Employee’s medical expenses. The trial court awarded attorney’s fees based
on the amount of outstanding medical bills pursuant to Tennessee Code
Annotated section 50-6-226(a)(1), but declined to award attorney’s fees for
a purported wrongful denial of the claim under Tennessee Code Annotated
section 50-6-226(d)(1)(B). . . .
Bowlin v. Servall, LLC, No. 2017-07-0224, 2018 TN Wrk. Comp. App. Bd. LEXIS 6, at
*2-4 (Tenn. Workers’ Comp. App. Bd. Feb. 8, 2018) (footnotes omitted).
2
We affirmed the trial court’s decision regarding Employer’s failure to prove
participation in the Drug-Free Workplace Program for the relevant time period, but we
vacated the award of attorney’s fees under section 50-6-226(a)(1), finding “it was
premature for the trial court to award attorney’s fees at [the expedited hearing] stage of the
case.” Bowlin, 2018 TN Wrk. Comp. App. Bd. Lexis 6, at *15.
Following our remand of the case, the parties reached a settlement agreement as to
all issues except for attorney’s fees and informed the trial court that Employer did not agree
to pay attorney’s fees based on a percentage of the medical expenses the court had earlier
ordered Employer to pay. The Court of Workers’ Compensation Claims held a
compensation hearing to consider the terms of the parties’ settlement agreement and to
resolve the attorney’s fee issue. At the hearing, the parties agreed that Employee incurred
medical expenses totaling $89,377.37, and that Employer had paid a total of $24,382.08
under Tennessee’s medical fee schedule to satisfy the medical expenses the court had
ordered Employer to pay. 1 In the pre-hearing brief filed by Employee and during the
hearing, counsel for Employee did not request an attorney’s fee for Employer’s allegedly
wrongful denial of medical benefits as provided in section 50-6-226(d)(1)(B), “but instead,
[sought] only a claim for fees pursuant to [section] 50-6-226(a)(1) based upon the award
of medical benefits at the Expedited Hearing.” (Emphasis in original.) Employee
contended the court should order Employer to pay a 20% attorney’s fee on the “full unpaid
medical expenses [of $89,337.37] presented at the Expedited Hearing.” Following the
hearing, the court found the settlement provided Employee substantially the benefits to
which she was entitled and approved the settlement, including a 20% attorney’s fee to her
counsel from the permanent partial disability benefits the parties agreed Employee would
receive. However, the court denied Employee’s request for attorney’s fees on the contested
medical benefits based on the language in section 50-6-226(a)(1), stating:
Though [Employer] paid the medical bills only after a Court order, and her
attorney is entitled to a fee for obtaining that recovery, the Court cannot
compel [Employer] to pay the fee. Under section 50-6-226(a), any fees on
contested medicals must be paid by the party employing the attorney out of
her recovery.
Employee has appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
1
Pursuant to Tennessee Code Annotated section 50-6-204, the Administrator of the Bureau of Workers’
Compensation adopted rules to establish a comprehensive medical fee schedule. See Tenn. Comp. R. &
Regs. 0800-02-17-.01 (2019).
3
Tenn. Code Ann. § 50-6-239(c)(7) (2019). The interpretation and application of statutes
and regulations are questions of law that are reviewed de novo with no presumption of
correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone N.
Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). 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 (2019).
Analysis
Employee raises a single issue on appeal, stated in her brief as “whether the trial
court erred in failing to order Employer to pay Employee’s . . . attorney’s fees based on the
unpaid medical expenses of $89,377.37 ordered to be paid per the Expedited Hearing
Order.” Here, as in the trial court, Employee contends Employer should pay attorney’s
fees “in accordance with [section] 50-6-226(a)(1),” which provides as follows:
The fees of attorneys for services to employees under this chapter, shall be
subject to the approval of the workers’ compensation judge before which the
matter is pending, as appropriate; provided, that no attorney’s fees to be
charged employees shall be in excess of twenty percent (20%) of the amount
of the recovery or award to be paid by the party employing the attorney.
Initially, we return to the 2017 expedited hearing to provide additional context to
the current appeal. In the 2017 expedited hearing, Employee sought medical and temporary
disability benefits as well as attorney’s fees for Employer’s alleged wrongful denial of
Employee’s claim pursuant to section 50-6-226(d)(1)(B). The trial court denied
Employee’s request for attorney’s fees under section 50-6-226(d)(1)(B), stating that the
statute “allows [attorney’s fees] when an attorney pursues a ‘wrongfully’ denied claim.”
Citing our decision in Andrews v. Yates Services, LLC, No. 2016-05-0854, 2017 TN Wrk.
Comp. App. Bd. LEXIS 35, at *7-8 (Tenn. Workers’ Comp. App. Bd. May 23, 2017), the
Court of Workers’ Compensation Claims concluded there was “no reason to deviate from
[the Andrews] standard at this interlocutory stage but reserve[d] consideration of any
further application until after final resolution of the case.” (Emphasis added.) However,
in the September 2017 expedited hearing order, the court ordered Employer to pay certain
bills Employee incurred for treatment of her work injury, adding that “[Employee’s]
counsel is entitled to a twenty percent attorney[’s] fee on the award of medical benefits
under Tennessee Code Annotated section 50-6-226(a)(1).” The order did not address who
would be responsible for paying the attorney’s fees authorized by section 50-6-226(a)(1).
Employer appealed the 2017 decision and, in its brief, asserted the trial court erred
“when it ordered [Employer] to pay [Employee’s] counsel an attorney fee based [on]
unpaid medical bills because the issue was not ripe at the interlocutory stage.” (Emphasis
added.) Notwithstanding that the trial court did not order Employer to pay the attorney’s
4
fee but awarded Employee’s counsel a twenty percent fee in accordance with section 50-
6-226(a)(1), Employer argued the court erred in prematurely awarding an attorney’s fee.
We vacated the attorney’s fee award, concluding “it was premature for the trial court to
award attorney’s fees at this stage of the case.”
Following our remand of the case, Employee filed a motion to enforce payment of
the medical benefits previously ordered by the trial court, requesting additionally that the
court award attorney’s fees pursuant to section 50-6-226(d)(1)(A) for Employer’s alleged
failure to provide the medical benefits the court had previously ordered in the expedited
hearing. 2 The trial court granted Employee’s motion and ordered Employer to “pay
attorney’s fees to [Employee’s] counsel, under Tennessee Code Annotated section 50-6-
226(d)(1)(A) in the amount of $750.” At a subsequent status hearing, the parties informed
the court they had settled the case but had a dispute as to the payment of attorney’s fees.
In an order setting a compensation hearing, the trial court stated that “an issue remained
regarding attorney’s fees for recovery of contested medical bills.” The court’s order noted
that the court “awarded [Employee’s] counsel a twenty percent attorney’s fee on the
contested medical bills, but the Appeals Board vacated the award on grounds that an award
of fees was inappropriate at the interlocutory stage of the case.”
As noted above, the parties agreed on the amount of medical expenses Employee
incurred and agreed on the amount Employer paid under the medical fee schedule to satisfy
the medical expenses the court ordered Employer to pay. We emphasize that, in the
compensation hearing, Employee did not request attorney’s fees for Employer’s alleged
wrongful denial of Employee’s claim. Rather, Employee’s request for attorney’s fees was
limited to fees recoverable pursuant to section 50-6-226(a)(1) and based upon the award of
medical benefits included in the 2017 expedited hearing order.
Employee contended in the compensation hearing that Employer should pay a 20%
attorney’s fee on the “full unpaid medical expenses [of $89,337.37] presented at the
Expedited Hearing.” The trial court concluded that the parties’ settlement agreement
provided Employee substantially the benefits to which she was entitled, and the court
approved the settlement, including a 20% attorney’s fee for Employee’s counsel based on
the permanent partial disability benefits the parties agreed Employee would receive.
However, the court declined to order Employer to pay attorney’s fees on the medical
benefits previously recovered by Employee based on the statutory language of section 50-
6-226(a)(1), which, as previously quoted, states that “no attorney’s fees to be charged
employees shall be in excess of twenty percent (20%) of the amount of the recovery or
award to be paid by the party employing the attorney.”
2
Tennessee Code Annotated section 50-6-226(d)(1)(A) authorizes the Court of Workers’ Compensation
Claims to award reasonable attorney’s fees when an employer “[f]ails to furnish appropriate medical,
surgical, and dental treatment or care . . . to an employee provided for in a settlement, expedited hearing
order, compensation hearing order, or judgment . . . .”
5
In her brief, Employee correctly notes that the Tennessee Supreme Court long ago
held that contested medical expenses are part of the “recovery or award” upon which
attorney’s fees may be awarded. See Langford v. Liberty Mutual Ins. Co., 854 S.W.2d 100,
102 (Tenn. 1993). Although the 2013 Workers’ Compensation Reform Act modified
section 50-6-226(a), the changes did not vitiate or impair the precedent Langford
established. The determinative issue in this appeal is whether the Court of Workers’
Compensation Claims may order an employer to pay attorney’s fees on contested medical
expenses recovered by or awarded to an employee pursuant to section 50-6-226(a)(1). 3
Employee asserts that “case law supports Employer’s liability” to pay attorney’s
fees recovered or awarded pursuant to section 50-6-226(a)(1). After analyzing several
cases addressing the issue, Employee asserts the instant case is most similar to Reatherford
v. Lincoln Brass Works, No. 01S01-9707-CV-00145, 1998 Tenn. LEXIS 33 (Tenn.
Workers’ Comp. Panel Jan. 26, 1998) and Moore v. Town of Collierville, 124 S.W.3d 93
(Tenn. 2004). Employee contends these cases support her assertion that “Employer is
liable to pay Employee’s counsel the attorney’s fee on the contested medical bills” that
Employee recovered. Our review of the case law does not support Employee’s position.
As noted above, in 1993 the Tennessee Supreme Court, in a case of first impression,
held that medical expenses awarded by a trial court are part of the “recovery or award”
under section 50-6-226(a) and are, therefore, subject to attorney’s fees. In Langford, the
employer denied the employee’s claim, and, after a trial, the court found the claim to be
compensable and awarded benefits, including $17,939.51 in medical expenses the
employee had incurred. The trial court ordered the employer to pay the medical expenses
directly to the employee who, in turn, was responsible for paying the medical providers.
The trial court’s order also provided that an attorney’s fee in the amount of 20% was proper
“upon ‘the total recovery herein.’” Langford, 854 S.W.2d at 100. A dispute arose
thereafter as to whether attorney’s fees were assessable against the funds held for payment
to the medical providers, and the trial court resolved the dispute by holding the medical
expenses were not subject to attorney’s fees. The Supreme Court reversed, concluding that
“contested medical expenses are a part of the ‘recovery or award’ specified in [section] 50-
6-226(a) on which attorneys’ fees may be assessed.” Id. at 102. The Court stated that
“attorneys’ fees in the amount of 20 percent shall be awarded out of the medical expenses
recovered in the judgment in the amount of $17,939.51.” Id. (emphasis added). The
defendant employer had been dismissed from the appeal and did not take a position in the
appeal.
3
Were we to answer this question affirmatively, we would have to address whether the trial court erred in
failing to order Employer to pay attorney’s fees under the circumstances presented and, if so, whether the
attorney’s fees are based on the amount of the expenses charged by the providers or the amounts paid by
Employer under the medical fee schedule. Our conclusion that section 50-6-226(a)(1) does not authorize
the Court of Workers’ Compensation Claims to order an employer to pay attorney’s fees on disputed
medical expenses pretermits these issues.
6
The Supreme Court addressed section 50-6-226(a) again three years later in Wilkes
v. The Resource Authority of Sumner County, 932 S.W.2d 458 (Tenn. 1996), where the
employee’s recovery or award included the expenses of reconstructive surgery. An issue
arose “concerning the propriety of awarding attorney’s fees against medical expenses
associated with the reconstructive surgery,” and the trial court refused to award attorney’s
fees assessed against the medical expenses. However, the precise issue in the instant case
was not presented in Wilkes. The issue there was whether the employee’s attorney was
entitled to an award of fees from the expenses related to the reconstructive surgery. The
issue did not concern whether the employer could or would be responsible for such fees.
The Supreme Court held the employee’s attorney was entitled to an award of fees from the
expenses related to the surgery and noted “the practical impact of this holding is that the
employee will not receive one hundred percent of the cost of the surgery.” The Court stated
that “[a]lthough this result is not attractive, we are not at liberty to rewrite Tennessee Code
Annotated Section 50-6-226(a) to provide for attorney’s fees in addition to the ‘amount of
the recovery or award.’ Such a change would require legislative action.” Id. at 464. In
the twenty-four years since Wilkes was decided, the legislature has not rewritten the statute
to provide for a different result.
In Reatherford, cited by Employee as being “more akin” to the case presently before
us, the employee’s recovery included “all medical expenses,” which was comprised of
$11,438 for treatment provided by the Veterans’ Administration (“VA”). Following an
appeal in which the Supreme Court affirmed the trial court’s judgment, the employee filed
a motion in the trial court in which the employee sought “judicial coercion” of the employer
to pay the benefits that were awarded, including interest. Reatherford, 1998 Tenn. LEXIS
33, at *2. The employer responded by stating that the interest had been paid and that, with
respect to the medical expenses, it had received a letter from the VA prior to trial asserting
a subrogation interest of $11,438 and requesting payment for its interest. Further, the
employer’s response stated that, after the case was concluded, the VA agreed to accept
$7,625 in settlement of its claim for medical expenses. Id. Against that background, the
trial court ruled that the VA had a subrogation interest in the amount of $11,438 for the
medical treatment it provided, and the court awarded the employee’s attorney a twenty
percent fee for representing the VA’s interest “with such payment to be made by the
[employer].” Id. at *3. The employer appealed, questioning the award of attorney’s fees.
The Supreme Court Special Workers’ Compensation Appeals Panel affirmed the trial
court’s order, noting that the initial judgment directed the employer to pay “‘all medical
expenses,’ as contrasted to specific amounts to named providers.” Id. at *4. The Panel
affirmed the trial court’s order that the employer pay an attorney’s fee based on the
employee’s attorney’s representation of the VA’s subrogation interest, stating “[w]e know
of no authority, and none has been cited to us, for the proposition that under the
circumstances of this case the [employer] should be allowed to defeat the attorney fee in
the manner fashioned.” Id. at *5. The critical distinction in Reatherford is that the
employer was ordered to pay an attorney’s fee based on an attorney’s representation of a
third party in the recovery of its subrogation lien and not based on the attorney’s
7
representation of the employee. The facts, procedure, and issue regarding the claim for
attorney’s fees in Reatherford differ significantly from the instant case, and the Panel’s
holding does not support the assertion that section 50-6-226(a)(1) authorizes the Court of
Workers’ Compensation Claims to order an employer to pay attorney’s fees on the amount
of disputed medical expenses that an employee recovers.
Finally, in Moore, also relied on by Employee, the issue presented to the Supreme
Court was “whether an employer is liable to a health insurer who paid medical expenses
incurred by an employee as a result of a work-related injury but did not intervene in the
workers’ compensation suit to seek reimbursement.” Moore, 124 S.W.3d at 97. The
Supreme Court did not address section 50-6-226(a) in Moore but, instead, focused on an
employer’s liability for unauthorized medical expenses paid by a third-party insurer and
whether that insurer must intervene in the workers’ compensation case to secure
reimbursement from the employer. The Moore Court concluded that an employer “is liable
for all medical expenses deemed reasonable and necessary as a result of the workplace
injury and shall be required to reimburse the employee’s health insurer who has paid those
expenses without the necessity of the insurer intervening in the workers’ compensation
claim.” Id. at 100. The Court remanded the case to the trial court to determine whether
and to what extent the employee’s health insurer paid medical expenses that were
reasonable, necessary, and on account of the work-related injuries. In addition, the Court
stated that “[t]he employee’s attorney shall be entitled to the statutory attorney’s fee based
on these additional recovered medical expenses.” Id. However, the Court did not address
whether the employer was responsible for paying the statutory attorney’s fees or whether
such fees would be deducted from the amounts recovered. Thus, Moore is clearly
distinguishable from the instant case and, like Reatherford and Wilkes, does not support
the assertion that section 50-6-226(a)(1) authorizes the Court of Workers’ Compensation
Claims to order an employer to pay attorney’s fees on contested medical expenses that are
recovered or awarded to an employee.
In summary, case law has clearly established precedent for awarding attorney’s fees
on medical expenses recovered or awarded to an employee. However, Employee has not
cited, nor have we located, a case holding that an employer may be liable for the attorney’s
fees authorized in section 50-6-226(a)(1). Moreover, a plain reading of section 50-6-
226(a)(1) indicates that the attorney’s fees are to be “paid by the party employing the
attorney.” Tenn. Code Ann. § 50-6-226(a)(1). This language has been part of the workers’
compensation law since its 1919 inception. See Acts 1919, ch. 123, § 33.
Conclusion
We affirm and certify as final the trial court’s July 16, 2020 order approving the
settlement of Employee’s claim and denying Employee’s request for attorney’s fees on the
contested medical benefits. Costs on appeal are taxed to Employee.
8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Nicole D. Bowlin ) Docket No. 2017-07-0224
)
v. ) State File No. 76010-2016
)
Servall, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, 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 25th day
of November, 2020.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Monica R. Rejaei X mrejaei@nstlaw.com
Gordon C. Aulgur X gordona@accidentfund.com
Allen Phillips, 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