The opinion
FILED
Aug 09, 2021
03:03 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
SONNEY SUMMERS, as surviving ) Docket No.: 2020-05-0875
spouse of CHRISTINE SUMMERS, )
Dependent, )
v. )
RTR TRANS. SERVICES ) State File No.: 58447-2020
Employer, )
And )
CAROLINA CAS. INS. CO., )
Insurer. ) Judge Robert Durham
)
COMPENSATION ORDER GRANTING BENEFITS
The Court held a Compensation Hearing on July 28, 2021, to determine whether
RTR Transportation must pay death benefits in a lump sum. The parties also asked the
Court to decide the amount of Mr. Summers’s attorneys’ fees, whether they should
include fees for payment of funeral expenses, and whether they should be paid in a lump
sum. The Court holds that RTR is not obligated to pay death benefits in a lump sum, and
that Mr. Summers’s attorneys are entitled to twenty percent attorneys’ fees on the entire
award, excluding funeral expenses, and that the fees will not be paid in lump sum.
History of Claim
Most of the facts surrounding this claim are undisputed or stipulated to by the
parties.
On August 19, 2020, Christine Summers was driving a truck for RTR when she
pulled off the road to investigate a possible collision with a pedestrian. As she exited the
truck, Ms. Summers was tragically murdered by blows to the head. 1
1
Ms. Summers died at the scene, and no medical expenses were incurred.
1
RTR initially denied the claim, and Ms. Summers’s sole dependent, her husband
Sonney Summers, retained counsel and filed a Petition for Benefit Determination. After
mediation, RTR accepted the claim on November 3. RTR paid $7,125.00 in funeral
expenses and offered to begin paying death benefits at the statutory rate of fifty percent
of Ms. Summers’s average weekly wage, which equates to $558.23. Mr. Summers
refused these payments, asserting entitlement to a lump-sum commutation of the benefits.
Mr. Summers testified regarding the requested lump-sum payment. He is fifty-
nine years old and receiving social security disability benefits totaling $1,398.00 per
month. His health problems require him to spend much of his time in a wheelchair or
scooter. He has temporary custody of three grandchildren—two teenagers and a one-
year-old ̶ and anticipates receiving permanent custody soon. Mr. Summers’s two oldest
grandchildren receive social security benefits due to their father’s death that total
$2,396.00 per month.
Mr. Summers had $480,000.00 left from Ms. Summers’s life insurance benefits
after paying off all his debts. From this amount, he built a $275,000.00 home in Alabama
for his family. Mr. Summers now has $146,000 left from the life insurance funds in
savings. He is selling his home in Tennessee and anticipates making $100,000.00 from
the sale. He owns a coin collection worth $10,000 to $20,000, as well as a collection of
older cars and trucks.
Mr. Summers estimated that the monthly expenses for his grandchildren and
himself total $4,165.34, or $371.34 more than their monthly income. He said that Ms.
Summers paid the bills during their marriage, but now he performs this task. He testified
that he wants the award in a lump sum to provide for his grandchildren’s education.
When asked on cross-examination as to why he needed a lump-sum payment, he stated so
it could “be in the background and maintain my lifestyle.”
As for attorneys’ fees, Mr. Summers and his counsel, Samuel Garner and Stephen
Heard, agreed in writing that they would receive twenty percent of any amount awarded.
Mr. Garner and Mr. Heard filed affidavits outlining their expertise and experience and
attesting to over 240 aggregate hours of work on Mr. Summers’s case.
Findings of Fact and Conclusions of Law
Mr. Summers has the burden of proving the essential elements of his workers’
compensation claim by a preponderance of the evidence. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). While RTR
stipulated that Mr. Summers, as his wife’s sole dependent, is entitled to death benefits, he
must still prove that RTR should pay these benefits in a lump sum.
Tennessee Code Annotated section 50-6-210(e)(1) (2020) provides that the spouse
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of an employee who died from a compensable injury and has no dependent children is
entitled to benefits equal to fifty percent of the employee’s average weekly wage. These
benefits end when the spouse’s dependency ends through death or remarriage. Tenn.
Code Ann. § 50-6-210(e)(8). If neither contingency occurs, the benefits continue until
they total the “maximum total benefit,” which is equal to 450 weeks times the maximum
compensation rate. Tenn. Code Ann. § 50-6-210(e)(10); Tenn. Code Ann. § 50-6-
102(15)(D). In this case, the maximum total benefit is $447,306, and Mr. Summers
requests this amount be paid in a lump sum.
Tennessee Code Annotated section 50-6-229(a) gives the Court the discretion to
order lump-sum awards, and the Supreme Court has long held that the statute
encompasses death benefits. Jones v. Gen. Accident Ins. Co., 856 S.W.2d 133, 136
(Tenn. 1993). In deciding whether to commute an award, the Court must consider if it is
in the employee’s best interests and whether the employee is able to “wisely manage and
control the commuted award, regardless of whether special needs exist.” Tenn. Code
Ann. § 50-6-229(a).
While Jones confirmed that death benefits could be commuted, the Workers’
Compensation Appeals Panel addressed whether it is appropriate to do so when a spouse
is the sole dependent in Educators Credit Union v. Gentry, No. M2003-02865-WC-R3-
CV, 2005 Tenn. LEXIS 216, at *8-9 (Tenn. Workers’ Comp. Panel Mar. 9, 2005). The
Panel considered the interplay between the general power to commute death benefits
under section 50-6-229(a) and the contingencies created by sections 50-6-210(E)(4) and
(8), which provide that benefits for the sole dependent spouse terminate upon death or
remarriage.
The Panel found that the contingencies serve as limits to commutation, since the
ultimate sum of future benefits payable to the sole dependent spouse cannot be
ascertained, given that dependency could end at any time. Applying the rules of statutory
construction, the Panel held that the legislative intent to limit death benefits to a spouse’s
dependency, which is impossible to determine at the time of judgment, foreclosed the
possibility of commuting death benefits for a sole dependent spouse. Id. The Panel later
confirmed this rationale in Reynolds v. Free Serv. Tire Co., No. E2014-02233-SC-R3-
WC, 2015 Tenn. LEXIS 734, at *11-12 (Tenn. Workers’ Comp. Panel Sept. 16, 2015).
In his brief, Mr. Summers attempted to refute Gentry by citing several cases,
including Jones, that in fact awarded, or contemplated awarding, lump-sum death
benefits to spouses. 2 However, Gentry distinguished several of them by pointing out that
they involved dependent minors. In those cases, an end to benefits could be calculated,
since the spouse’s benefits, should dependency end, would be redistributed to the minors
until they reached the age of majority. The Panel also distinguished Jones, in which the
2
None of the decisions Mr. Summers cited was issued after Gentry.
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spouse was the sole dependent, on the grounds that the issue in that case was whether
death benefits could be commuted at all, not whether it was specifically foreclosed
against sole dependent spouses. Id. at *9. 3
The Court also notes that at the time of the decisions cited by Mr. Summers, the
Workers’ Compensation Act was remedial. Tenn. Code Ann. § 50-6-116 (2013). The
law required courts to apply a liberal construction in favor of the injured worker.
Wheeler v. Glen Falls Ins. Co., 513 S.W.2d 179 (Tenn. 1974). This included the issue of
whether to commute an award to a lump sum. Clayton v. Cookeville Energy, Inc., 824
S.W.2d 167, 169 (Tenn. 1992). In finding that it was proper to commute spousal death
benefits, the Supreme Court stated in Clayton that even though the interests of both the
employee and the employer should be considered when deciding lump-sum commutation,
courts must remember that “the workers’ compensation laws, and [section 50-6-229(a)]
in particular, were enacted for the benefit of the employee.” Id.
But liberal construction in favor of the employee is no longer the law. The
Legislature amended Tennessee Code Annotated section 50-6-116 in 2013 to require that
the Workers’ Compensation Act “be construed fairly, impartially . . . and not in a manner
favoring either the employee or the employer.” Given that the ultimate cost of death
benefits to a sole dependent spouse cannot be calculated, the Court finds that the
requirement to impartially interpret the statute lends even more weight to the Gentry
decision against awarding lump-sum death benefits to a sole dependent spouse.
However, even if Gentry were not controlling, the Court would not commute Mr.
Summers’s award. Lump-sum awards should “occur only in exceptional circumstances
and not as a matter of course.” Clayton, at 169. Under section 50-6-229(a), Mr.
Summers must show that the commutation would be in his best interests and that he is
able to wisely manage and control the commuted award. The Court finds he did not.
Regarding his plans for the lump-sum award, Mr. Summers stated without
elaboration that some would be for his grandchildren’s college education and that he
needed the lump-sum award to “be in the background” to “maintain his lifestyle.” The
Supreme Court has held that a plan to invest “in a potential future need, however,
laudatory,” such as a future college education, is not enough to merit commutation.
Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 60 (Tenn. 1992). Further, the mere
fact that the dependent can manage his own income and could benefit from accrued
interest, is also an insufficient reason. Id. Thus, the Court finds Mr. Summers failed to
provide an adequate reason as to why commutation is warranted or would be in his best
interests.
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The Court also notes that the Supreme Court ultimately denied Mr. Jones’s request to commute his
award to a lump sum.
4
In summary, the Court holds that, given he is the sole dependent, commuting Mr.
Summers’s award would be at odds with the legislative intent of Tennessee Code
Annotated sections 50-6-210(E)(4) and (8), as set out in Gentry. However, even if
Gentry were not controlling, the Court still finds that Mr. Summers failed to prove
exceptional circumstances exist that warrant commutation. Thus, except for accrued
benefits, the Court denies Mr. Summers’s request for commutation.
Attorneys’ Fees
In addition to commuting Mr. Summers’s award to a lump sum, his counsel also
asks the Court to award attorneys’ fees equal to twenty percent of the award, including
the amount RTR paid for funeral expenses. Counsel also requests that this sum be paid in
a lump sum.
Tennessee Code Annotated section 50-6-226(a) governs the Court’s duty to
approve attorney’s fees in workers’ compensation cases. It specifically provides that
“[t]he department shall deem the attorney’s fee to be reasonable if the fee does not
exceed twenty percent (20%) of the award to the injured worker.” 4 In Turner v. Pee Dee
Country Enter., Inc., 2021 TN Wrk. Comp. App. Bd. LEXIS 26, at *13-14 (July 23,
2021), the Appeals Board interpreted this phrase to mean that the Court has no discretion
in awarding attorney’s fees so long as they are not more than twenty percent of the total
award. Mr. Summers agreed in writing to pay his counsel twenty percent of his total
award. Thus, under Turner, the Court awards this amount to Attorneys Garner and
Heard.
Mr. Garner and Mr. Heard also seek twenty percent attorneys’ fees for Ms.
Summers’s burial expenses of $7,125.00. Although RTR initially denied Mr. Summers’s
claim before he retained counsel, it eventually accepted it and paid burial expenses under
Tennessee Code Annotated section 50-6-204(c). Thus, burial expenses were not an issue
at trial.
The Court does not know of any case law or statute regarding attorneys’ fees for
burial expenses. However, the Court finds funeral expenses to be akin to medical
expenses (the employer’s obligations to pay for both types of expenses are contained in
section 50-6-204), and attorneys’ fees on disputed medical expenses have been addressed
by both case law and statute.
It is well-established that attorneys can recover attorneys’ fees for contested
medical expenses that are rewarded at trial. See Langford v. Liberty Mut. Ins. Co., 854
4
Tennessee Code Annotated section 50-6-226(a)(3) provides that where the employer makes a written
offer within thirty days of the employee’s death to pay all death benefits, attorney’s fees are limited to a
reasonable fee for the actual time spent. The parties stipulated RTR’s offer was not made until seventy-
seven days after Ms. Summers’s death, so this restriction does not apply.
5
S.W.2d 100, 102 (Tenn. 1993); Bowlin v. Servall, LLC, 2020 TN Wrk. Comp. App. Bd.
LEXIS 70, at *11 (Nov. 25, 2020). However, Tennessee Code Annotated section 50-6-
226(a)(2)(A) states that medical expenses “that have been voluntarily paid” are not
subject to attorney’s fees.
In determining “voluntary” payment of medical expenses, the Court is not aware
of any decision that awarded attorneys’ fees on medical expenses that the employer
initially contested but then paid, or agreed to pay, before trial. In Burks v. Williams
Typesetting, Inc., No. E2001-00252-WC-R3-CV, 2002 Tenn. LEXIS 151, at *13-14
(Tenn. Workers’ Comp. Panel Mar. 20, 2002), the employer had not paid certain medical
expenses but stipulated before trial that it would do so. The Panel found that the
expenses were not “contested,” even though the employer had waited until an
independent evaluation before accepting the claim. As a result, the Panel declined to
award attorneys’ fees for the expenses. Id.
The Court finds that the principle that medical expenses must be contested at trial
before attorneys’ fees may be awarded from them applies to burial expenses as well.
Thus, the Court declines to award Mr. Garner and Mr. Heard attorneys’ fees for burial
expenses.
Finally, Mr. Garner and Mr. Heard request that the Court order their attorneys’
fees be paid in a lump-sum amount equal to twenty percent, or $89,460.00, of the
maximum total benefit that Mr. Summers might receive under workers’ compensation
law. It remains in the Court’s discretion as to whether to commute attorneys’ fees. See
Turner, at n.6.
Regarding the commutation of fees in a death case, the Supreme Court held in
National Pizza Co. v. Young, 855 S.W.2d 817, 818 (Tenn. 1994), that attorneys’ fees in
death cases can be commuted even when the dependents’ benefits are paid periodically.
The Supreme Court summarily dismissed the argument against commutation because the
ultimate benefit amount could not be calculated, holding that the argument provided “no
basis” for reversing the trial court’s lump-sum award.
However, while Gentry did not specifically mention National Pizza in its analysis,
the case is similar to other cases distinguished by Gentry. Like those cases, the
dependents in National Pizza included minors as well as the spouse. Thus, if the
spouse’s dependency ended, her benefits would transfer to her children, making it
possible to calculate the ultimate award. Further, National Pizza was also decided before
the amendment to Tennessee Code Annotated section 50-6-116, which ended liberal
construction and now requires the Court to construe the law fairly, impartially, and
favoring neither the employee nor the employer.
Thus, even if it is not controlling, the Court finds the Gentry analysis compelling
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as to commutation of attorneys’ fees in death cases with sole dependent spouses. If the
contingencies of death or remarriage make it impossible to determine a sole dependent
spouse’s ultimate award, it is equally impossible to determine a percentage of that award.
It is possible that a lump-sum attorneys’ fee award of almost $90,000 could exceed the
actual benefits paid to Mr. Summers. The Court finds the possible inequity of such an
outcome to RTR outweighs the inconvenience to Mr. Summers’s counsel in receiving
their fees periodically.
Thus, the Court denies Mr. Garner’s and Mr. Heard’s request for commutation of
their entire attorneys’ fees. However, they shall receive twenty percent of Mr.
Summers’s accrued benefits in a lump sum.
IT IS, THEREFORE, ORDERED THAT:
1. Mr. Summers is awarded death benefits in the weekly amount of $558.23 from
August 20, 2020, until his dependency ends through remarriage or death or the
benefits paid equal the maximum total benefit of $447,300.00.
2. Mr. Summers’s request that his entire death benefits be paid in a lump sum is
denied. RTR shall pay a lump-sum award of $27,991.25 in accrued benefits.
From this, Mr. Summers’s counsel is awarded twenty percent in attorneys’ fees, or
$5,598.25.
3. For the remaining award, Mr. Summers shall receive bi-weekly payments in the
amount of $883.17, which equates to his death benefits less attorneys’ fees, for so
long as benefits are owed. Attorneys Garner and Heard shall receive bi-weekly
payments in the amount of $223.29 to be divided between them for so long as
benefits are owed.
4. RTR shall pay costs of $150.00 to the Court Clerk within five business days of this
order becoming final.
5. RTR shall file with the Court Clerk a Statistical Data Form within ten business
days of this order becoming final.
6. This Compensation Order is a final adjudication on the merits of Mr. Summers’s
claim. Unless appealed, it shall become final in thirty days.
ENTERED on August 9, 2021.
__________________________________
ROBERT DURHAM, JUDGE
Court of Workers’ Compensation Claims
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APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Second Petition for Benefit Determination
3. Dispute Certification Notice
4. Application for Approval of Attorney’s Fees
5. Pre-Compensation Hearing Statements
6. Mr. Summers’s Exhibit and Witness List
7. Mr. Summers’s Compensation Hearing Brief
8. Mr. Summers’s Supplemental Compensation Hearing Brief
9. RTR’s Compensation Hearing Brief
10. RTR’s Amended Exhibit and Witness List
11. Dispute Resolution Statement
12. RTR’s Supplemental Compensation Hearing Brief
Exhibits:
1. Affidavits to Application for Attorney’s Fees
2. Collective Attachments to Exhibit List
3. Wedding Certificate
4. Death Certificate
5. Income and Expense Report
6. Attorney/Client Employment Agreement
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on August 9, 2021.
Name Certified Via Via Service sent to:
Mail Fax Email
Samuel Garner, Jr. X samgarner@fowlkesgarner.com
Stephen Heard X skheard@cclawtn.com
Rosalia Fiorello X rfiorello@wimberlylawson.com
_____________________________________
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov
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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 (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082