            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Torey Andrews                               )   Docket No. 2016-05-0854
                                            )
v.                                          )   State File No. 58300-2016
                                            )
Yates Services, LLC, et al.                 )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Dale Tipps, Judge                           )


                     Vacated and Remanded - Filed May 23, 2017


The employee, who alleges a back injury suffered while working on an assembly line,
appeals the trial court’s denial of his motion for attorney’s fees and expenses. Following
the trial court’s determination that the employee was entitled to medical and temporary
disability benefits, the employee filed a motion seeking attorney’s fees and expenses
pursuant to Tennessee Code Annotated section 50-6-226(d)(1). The trial court denied the
motion based on a finding that the employer acted reasonably in declining to pay
benefits. The employee has appealed, asserting that the trial court should have granted
his request for attorney’s fees and expenses. Finding that the trial court’s resolution of
this issue was premature, we vacate the trial court’s order denying the employee’s motion
and remand the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.

Samuel B. Garner, Jr., Pulaski, Tennessee, for the employee-appellant, Torey Andrews

John R. Rucker, Jr., Murfreesboro, Tennessee, for the employer-appellee, Yates Services,
LLC

                         Factual and Procedural Background

       Torey Andrews (“Employee”), an assembly line worker employed by Yates
Services, LLC (“Employer”), alleges suffering an injury to his back on July 21, 2016,

                                            1
while installing windows in car doors as the doors moved down the assembly line.
Employer initially accepted the claim and provided a panel of physicians but, after
receiving a medical opinion indicating the injury was not compensable, denied additional
benefits. Employee sought treatment on his own and obtained a medical opinion that his
injury arose primarily out of his employment. Following an expedited hearing, the trial
court accepted the opinion of Employee’s physician, found Employee was likely to
prevail at trial, and ordered temporary disability and additional medical benefits. That
decision was not appealed.

        Thereafter, Employee filed a motion for attorney’s fees in the amount of $7,325,
plus $1,137 in expenses. Relying upon Tennessee Code Annotated section 50-6-
226(d)(1)(B), Employee asserted that Employer denied benefits “absent [a] valid basis”
and thus “wrongfully denied” his claim. Employer responded by arguing that any fee
awarded should be calculated based upon twenty percent of the benefits ordered, the rate
provided for in Tennessee Code Annotated section 50-6-226(a)(1), not the hourly rate
charged by Employee’s attorney. Employer also pointed out that section 50-6-226(d)(1)
is silent as to when a determination of attorney’s fees and costs should be made, and
asserted that fees and costs should be determined at the end of the case rather than in the
midst of the litigation.

         In analyzing Employee’s motion, the trial court observed that section 50-6-
226(d)(1)(B) contemplates two scenarios under which attorney’s fees and expenses may
be awarded, the first being an employer’s failure to timely initiate benefits. The trial
court noted the absence of any evidence supporting such a failure in this case. To the
contrary, the court noted that Employer provided a panel of physicians within days of
when Employee reported hurting his back and also accommodated his medical
restrictions for several months.

       The other scenario identified by the trial court for potentially awarding attorney’s
fees and expenses under section 50-6-226(d)(1)(B) is when an employer “wrongfully
denies” the claim. The trial court did not explicitly address the meaning of this phrase,
but did find that Employer’s actions were reasonable under the circumstances. The court
explained that “[i]t is unrealistic to expect [Employer] to continue to provide benefits
once the authorized doctor opined the injury was not work-related, and it would be
inequitable to punish it for observing the statutory presumption of correctness of that
opinion.” Accordingly, the trial court denied Employee’s motion for attorney’s fees and
expenses. Employee has appealed.

                                  Standard of Review

       The standard we apply in reviewing a trial court’s decision is statutorily mandated
and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of

                                            2
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s
decision may be reversed or modified if the rights of a party “have been prejudiced
because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

      (A)    Violate constitutional or statutory provisions;
      (B)    Exceed the statutory authority of the workers’ compensation judge;
      (C)    Do not comply with lawful procedure;
      (D)    Are arbitrary, capricious, characterized by abuse of discretion, or
             clearly an unwarranted exercise of discretion; or
      (E)    Are not supported by evidence that is both substantial and material
             in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015).

                                         Analysis

        This is our first appeal involving Tennessee Code Annotated section 50-6-
226(d)(1), which gives trial courts the discretion to award reasonable attorney’s fees and
reasonable expenses when an employer fails to furnish appropriate medical care or when
an employer wrongfully denies a claim or fails to timely initiate benefits. Specifically,
the statute provides:

      (d)(1) In addition to attorneys’ fees provided for in this section, the court of
      workers’ compensation claims may award reasonable attorneys’ fees and
      reasonable costs, including reasonable and necessary court reporter
      expenses and expert witness fees, for depositions and trials incurred when
      the employer:

             (A) Fails to furnish appropriate medical, surgical, and dental
             treatment or care, medicine, medical and surgical supplies,
             crutches, artificial members, and other apparatus to an
             employee provided for in a settlement, expedited hearing
             order, compensation hearing order, or judgment under this
             chapter; or

             (B) 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.


                                             3
        (2) Subdivision (d)(1)(B) shall apply to injuries that occur on or after July
        1, 2016, but shall not apply to injuries that occur after June 30, 2018.

       Section 50-6-226(d)(1)(B) does not define a wrongful denial of benefits, or any
other key term, and it also does not address when during the litigation process an award
of attorney’s fees and expenses should be made. Employee’s central argument in this
appeal surrounds the meaning of the language “wrongfully denies” in subdivision
(d)(1)(B). Employee argues that the legislature’s use of the phrase “wrongfully denies” is
not synonymous with bad faith or ill-will. Rather, Employee asserts that, in this context,
“wrongfully denies” should be construed to mean that an employer incorrectly denied
benefits, regardless of bad faith or malice. Employee maintains that this interpretation of
the statute is consistent with its purpose which, according to Employee, is to encourage
attorneys to accept cases that may otherwise be considered unprofitable.1

        In our view, the dispositive question in this appeal is not the meaning of the
statute’s language or its proper application, but whether a determination of attorney’s fees
and expenses is ripe at this stage of the case. We find no authority, and none has been
suggested to us, requiring that determinations regarding attorney’s fees and expenses be
made at an interlocutory stage of the case. Given the twists and turns inherent in
litigation, it seems the better practice is to resolve such issues after the litigation has run
its course and the parties and the court no longer face uncertainties over future
developments, as opposed to adjudicating disputes concerning attorney’s fees and
expenses in piecemeal fashion as the case winds its way through the litigation process.
Thus, we conclude that the trial court’s resolution of the attorney’s fees and expenses
issue was, at this early juncture in the case, premature. This is not to suggest that a
determination of attorney’s fees and expenses may never be proper prior to the
conclusion of a case, as each case must be evaluated based on the particular
circumstances presented. However, there is nothing about this particular case to warrant
such a determination at this time. Accordingly, because we conclude it was premature to
address Employee’s claim for attorney’s fees and expenses at this interlocutory stage of
the case, the trial court’s denial of Employee’s request for attorney’s fees and expenses is
vacated.

       Before concluding, we note that this decision is not intended to interpret any of the
key terms in section 50-6-226(d)(1)(B). Any such determination on our part would be
premature and advisory only. See Hooker v. Haslam, 437 S.W.3d 409, 417 (Tenn. 2014)

1
 Employee makes factual assertions in his brief regarding the refusal of attorneys in his county to accept
workers’ compensation cases. He also relies on an annual report to the legislature prepared by the Bureau
of Workers’ Compensation. However, this information was not presented to the trial court, and we will
not consider it for the first time on appeal. See Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN
Wrk. Comp. App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. May 18, 2015) (“[W]e will
not consider on appeal testimony, exhibits, or other materials that were not properly admitted into
evidence at the hearing before the trial judge.”).
                                                    4
(“Tennessee courts follow self-imposed rules of judicial restraint so that they stay within
their province to decide, not advise, and to settle rights, not to give abstract opinions.”)
(internal quotation marks omitted). Those issues must await an appropriate occasion.

                                       Conclusion

      The trial court’s order denying Employee’s motion for attorney’s fees and
expenses is vacated. The case is remanded for any further proceedings that may be
necessary.




                                             5
                         TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                           WORKERS’ COMPENSATION APPEALS BOARD


Torey Andrews                                              )   Docket No.   2016-05-0854
                                                           )
v.                                                         )   State File No. 58300-2016
                                                           )
Yates Services, LLC, et al.                                )


                                       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 23rd day of May, 2017.
 Name                      Certified   First Class   Via   Fax      Via     Email Address
                           Mail        Mail          Fax   Number   Email

 Samuel B. Garner, Jr.                                                X     samgarner@fowlkesgarner.com
 John R. Rucker, Jr.                                                  X     jrucker@ruckerlaw.com
 Dale Tipps, Judge                                                    X     Via Electronic Mail
 Kenneth M. Switzer,                                                  X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                  X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
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
