                                                                                    FILED
                                                                                  Dec 21, 2018
                                                                                  12:47 PM(CT)
                                                                                   TENNESSEE
                                                                              WORKERS' COMPENSATION
                                                                                 APPEALS BOARD

             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD
                (HEARD NOVEMBER 27, 2018, AT KNOXVILLE)

Fred Travis, III                              ) Docket No. 2018-03-0237
                                              )
v.                                            ) State File No. 14934-2018
                                              )
Carter Express, Inc., et al.                  )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Pamela B. Johnson, Judge                      )

                   Affirmed in Part, Vacated in Part, and Remanded
                               Filed December 21, 2018

In this interlocutory appeal, the employee, a truck driver, alleged he sustained an injury to
his right shoulder while opening a trailer door within the course of his employment. The
employer denied the claim for Tennessee workers’ compensation benefits, asserting the
employee had, as a condition of his employment, entered into a binding agreement to file
any workers’ compensation claims in the State of Indiana. The employer further alleged
the employee’s shoulder condition did not primarily arise out of his employment, and/or
the employee did not credibly report any specific incident or set of incidents resulting in
an injury. Following an expedited hearing, the trial court determined: (1) the employee
could not prospectively waive his right to seek workers’ compensation benefits in
Tennessee as a condition of employment; (2) the employee can seek benefits under
Tennessee law; (3) the employee was likely to prevail at trial in proving a compensable
injury; (4) the employee was entitled to both medical and temporary disability benefits;
and (5) the employer’s failure to initiate benefits was wrongful as contemplated in
Tennessee Code Annotated section 50-6-226(d)(1)(B), thus entitling the employee to an
award of attorneys’ fees and costs in an amount to be determined at a later time. The
employer has appealed. We affirm in part and vacate in part the trial court’s decision,
and we remand the case.

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

J. Allen Brown, Nashville, Tennessee, for the employer-appellant, Carter Express, Inc.


                                             1
Brad C. Burnette, Clinton, Tennessee, for the employee-appellee, Fred Travis, III

                          Factual and Procedural Background

        Fred Travis, III (“Employee”), a 40-year-old resident of Anderson County,
Tennessee, worked as a truck driver for Carter Express, Inc. (“Employer”). In early
November 2017, while on a multi-state delivery route originating and terminating in
Andersonville, Tennessee, Employee began to experience pain and other symptoms in his
right shoulder. He described an incident late on November 2, 2017, in which he felt
stiffness and a dull pain in his right shoulder after climbing under the truck and trailer to
make sure a connecting pin was locked. He described a second incident in the early
morning hours of November 3, 2017, in which he felt a sharp pain in his right shoulder as
he opened, lifted, and swung a trailer door back to pin it against the side of the trailer. He
further alleged his symptoms worsened during the course of the trip in Arkansas and
Tennessee. He reported the incident to his employer on November 4 and sought medical
treatment that day. He did not return to work for Employer.

       At an expedited hearing, Employer maintained it did not owe workers’
compensation benefits in Tennessee. First, it asserted Employee had waived his right to
pursue workers’ compensation benefits in Tennessee by voluntarily signing an agreement
as a condition of his employment entitled “Agreement as to Jurisdiction and Notice as to
Indiana Workers’ Compensation Law,” dated July 7, 2015. This agreement stated that
“any and all workers’ compensation claims that you may have arising out of this
employment . . . will be governed exclusively by the law of the State of Indiana.”

       Moreover, Employer argued Employee failed to sufficiently allege a specific
incident or set of incidents resulting in an injury. In support of this argument, it relied on
a November 4, 2017 medical record from Fast Pace Urgent Care Clinic in which
Employee allegedly told the medical provider he was “not sure what he ha[d] done.”
Specifically, the medical provider noted there was “no known injury but [patient] states
he drives an 18 wheeler locally and thinks this may be related to getting in and out of the
cab of the truck or loading truck.” Employee also denied to this provider he had suffered
any prior injury to his right shoulder. In addition, when Employee saw an orthopedic
physician, Dr. Sean Grace, on December 13, 2017, he told Dr. Grace he “felt a sharp pain
in his upper arm and shoulder area” after “lifting the trailer door” on November 3, 2017,
and reported “no prior history of significant right shoulder injury in the past.” Employer
asserted Employee’s allegations lacked credibility because he changed his story regarding
how the injury took place, and he failed to inform his medical providers of a prior
shoulder injury in 2004 when he was working for another employer.

      Following the expedited hearing, at which Employee sought both medical and
temporary disability benefits, the trial court determined: (1) Employer’s effort to secure
what was, in effect, a waiver of Employee’s rights under the Tennessee Workers’

                                              2
Compensation Law violated Tennessee Code Annotated section 50-6-114(a) and was
ineffective; (2) Employee, a Tennessee resident whose contract of hire was made in
Tennessee, could seek Tennessee workers’ compensation benefits pursuant to Tennessee
Code Annotated section 50-6-115(b)(2); (3) Employee came forward with sufficient
evidence at the expedited hearing to support a finding he was likely to prevail at trial in
establishing a compensable injury to his right shoulder; (4) Employer must initiate both
temporary disability and medical benefits; and (5) Employer’s denial of Employee’s
claim was wrongful as provided in Tennessee Code Annotated section 50-6-226(d)(1)(B),
thus entitling Employee to an award of attorneys’ fees and costs, the amount of which
would be determined at a later time. Employer 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 Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, 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 (2018). 1

                                                 Analysis

      Employer identifies three issues on appeal: (1) “whether Employee, in advance,
knowingly elected Indiana workers’ compensation benefits”; (2) “whether [E]mployee’s
claim arose out of employment or was in the course of employment”; and (3) “whether


1
 Employee relies on Tennessee Code Annotated section 50-6-217(a)(3) (repealed 2017), incorrectly cited
as Tennessee Code Annotated section 50-6-239(c)(7), in support of his position on appeal. Section 50-6-
217(a)(3) authorized us to reverse or modify a trial court’s decision if the rights of a party were prejudiced
because the findings of the trial judge were “not supported by evidence that is both substantial and
material in light of the entire record.” However, as we have observed on numerous occasions, this code
section was repealed effective May 9, 2017. See, e.g., Miller v. Logan’s Roadhouse, Inc., No. 2018-06-
0225, 2018 TN Wrk. Comp. App. Bd. LEXIS 59, at *7 (Tenn. Workers’ Comp. App. Bd. Nov. 15, 2018).
                                                      3
[E]mployee should be permitted to recover his attorney[s’] fees under these
circumstances.”

                      Election of Remedies/Forum Selection Clause

                                            A.

       This case presents an important issue of first impression; namely, whether a forum
selection agreement between an employer and employee executed in advance of an
employee’s injury is binding. The trial court answered in the negative. We agree.

      We begin by noting that, in Tennessee, an employee can waive his or her right to
pursue workers’ compensation benefits under Tennessee law in circumstances where the
employee elects to pursue benefits under the laws of another state. See, e.g., Bradshaw v.
Old Republic Ins. Co., 922 S.W.2d 503, 504 (Tenn. 1996); Tidwell v. Chattanooga Boiler
and Tank Co., 43 S.W.2d 221, 223 (Tenn. 1931). In order to make such an election, the
employee must have “(a) affirmatively acted to obtain benefits in another state; or (b)
knowingly and voluntarily accepted benefits under the law of another state.” Eadie v.
Complete Co., 142 S.W.3d 288, 291 (Tenn. 2004).

       Forum selection clauses, in which parties to a contract agree in advance to a
particular jurisdiction for the resolution of legal disputes that may occur in the future,
have been found valid and binding in Tennessee outside the workers’ compensation
context when they are “fair and reasonable in light of all the surrounding circumstances
attending their origin and application.” Dyersburg Mach. Works, Inc. v. Rentenbach
Eng’g Co., 650 S.W.2d 378, 380 (Tenn. 1983). In Dyersburg, the Tennessee Supreme
Court cited the Model Choice of Forum Act, which provides that an unselected court
must give effect to a forum selection clause and refuse to entertain the action unless:

      (1) the plaintiff cannot secure effective relief in the other state, for reasons
      other than delay in bringing the action; (2) or the other state would be a
      substantially less convenient place for the trial of the action than this state;
      (3) or the agreement as to the place of the action was obtained by
      misrepresentation, duress, abuse of economic power, or other
      unconscionable means; (4) or it would for some other reason be unfair or
      unreasonable to enforce the agreement.

Id. The Supreme Court then concluded, “courts of this state should give consideration to
the above mentioned factors and any others which bear upon the fundamental fairness of
enforcing such a forum selection clause, and should enforce such a clause unless the
party opposing enforcement demonstrates that it would be unfair and inequitable to do
so.” Id.


                                             4
        However, the validity of a forum selection clause executed in advance of an injury
in a workers’ compensation case is more complicated.                 Tennessee’s workers’
compensation law prohibits any “contract or agreement, written or implied, or rule,
regulation, or other device, [which] shall in any manner operate to relieve any employer,
in whole or in part, of any obligation created by this chapter.” Tenn. Code Ann. § 50-6-
114(a) (2018). Employee argues that this statute prohibits the type of forum selection
clause used by Employer in this case. Employer argues, on the other hand, that the
election of remedies doctrine supplants section 50-6-114(a) to the extent that a party can
knowingly and willingly choose a forum to pursue a claim for workers’ compensation
benefits. 2 Employer relies on Perkins v. BE & K, Inc., 802 S.W.2d 215 (Tenn. 1990), in
which the employee signed an “Agreement for Compensation” after the work injury to
receive workers’ compensation benefits in Virginia, then later attempted to pursue
benefits in Tennessee. The Tennessee Supreme Court affirmed summary judgment in
favor of the employer, reasoning, in part, that the employee had taken “affirmative action
to obtain benefits” in another state. Id. at 217. Employer urges us to conclude that it is
irrelevant whether an agreement to pursue workers’ compensation benefits in another
state is entered into before or after the date of injury, as either can constitute a binding
election of remedies.

        Although the issue of prospective forum selection in workers’ compensation cases
is one of first impression in Tennessee, other cases are instructive. For example, in
Maggart v. Almany Realtors, Inc., No. M2005-02532-COA-R3-CV, 2007 Tenn. App.
LEXIS 482 (Tenn. Ct. App. July 26, 2007), the employee of a small company with only
three employees was injured when a filing cabinet fell on her. One month before the
injury, the employee had signed a document that purported to release the company from
any liability in the event of a work-related injury. Id. at *3. In addressing the validity of
this agreement, the Tennessee Court of Appeals explained, “it is a comprehensive
exculpatory agreement between an employer and employee; therefore, as a matter of law,
it is void as against public policy because it purports to exonerate the employer from any
and all prospective liability for an injury the employee may sustain in the performance of
her service to the employer.” Id. at *9. Citing Tennessee Code Annotated section 50-6-
114(a), the Court of Appeals concluded, “exculpatory clauses such as the one at issue are
expressly prohibited under the [Workers’ Compensation] Act.” Id. at *11.

       In another case, Overman v. Altama Delta Corp., 193 S.W.3d 540 (Tenn. 2006),
the employer entered into a settlement agreement with an injured worker that included
language requiring the employee to return all settlement proceeds in the event the
employee attempted to “set aside, modify, amend, reconsider or change any aspect of this
settlement.” Id. at 541. When the employee filed a petition asking for reconsideration of
her award of permanently disability benefits, which was allowed under then-existing law,

2
 In general, the election of remedies doctrine bars a litigant from pursuing a remedy inconsistent with
another remedy already pursued. See Black’s Law Dictionary, 10th ed. (2014).
                                                  5
the employee refused to return the settlement proceeds. Id. In addressing this issue, the
Tennessee Supreme Court explained, “[t]he waiver provision contained in the settlement
agreement effectively relieves [the employer] of a portion of its obligation under the
Workers’ Compensation Law. The waiver provision, therefore, is invalid under the plain
language of section 50-6-114(a).” Id. at 542.

        Other jurisdictions have addressed the validity of prospective forum selection
clauses in workers’ compensation cases, and the vast majority of them with statutes
similar to section 50-6-114(a) have declined to enforce such agreements. For example, in
a Pennsylvania case, McIlvaine Trucking v. Workers’ Compensation Appeals Board, 810
A.2d 1280, 1281 (Pa. 2002), the employer and employee entered into an employment
contract that required the employee to pursue any claim for workers’ compensation
benefits in West Virginia. Following his work injury, the employee pursued benefits in
Pennsylvania. Id. On appeal, the Pennsylvania Workers’ Compensation Appeals Board
concluded that parties to an employment contract “may not agree to confer jurisdiction
outside of Pennsylvania where jurisdiction would otherwise lie in Pennsylvania.” Id. at
1282. The Pennsylvania Supreme Court agreed, concluding that its statute “does not
permit parties by agreement to overcome the Act’s coverage pertaining to a subsequent,
in-state injury.” Id. at 1286. It further reasoned, “in [the] absence of an express and
pertinent statutory exception, [the lower courts] did not err in refusing to give effect to
the parties’ choice-of-law agreement.” Id.

       In a Maryland case, Pro-Football, Inc. v. Tupa, 14 A.3d 678 (Md. Ct. App. 2011),
a punter for the Washington Redskins alleged a work injury and pursued workers’
compensation benefits in Maryland. As part of his employment contract, the employee
had agreed that any “dispute, claim or cause of action” arising out of his employment
would be resolved under the laws of the State of Virginia. Id. at 684. In analyzing the
validity of this forum selection clause, the Maryland Court of Appeals first noted that,
under Maryland’s workers’ compensation laws, an employer and employee “may not by
agreement, rule, or regulation: (i) exempt the covered employee or an employer of a
covered employee from a duty . . . under this title; or (ii) waive a right of the covered
employee or the employer under this title.” Id. at 685. In rejecting the application of the
forum selection clause in the context of the employee’s workers’ compensation claim, the
Maryland Court of Appeals concluded, “the forum selection clause in [the employee’s]
contract would contravene Maryland’s public policy.” Id. at 686.

      Similarly, in Kacur v. Employers Mutual Casualty Co., 254 A.2d 156 (Md. Ct.
App. 1969), the Maryland Court of Appeals cited with favor Professor Larson’s treatise
on workers’ compensation law:

      Express agreement between employer and employee that the statute of a
      named state shall apply is ineffective either to enlarge the applicability of
      that state’s statute or to diminish the applicability of the statutes of other

                                            6
      states. Whatever the rule may be as to questions involving commercial
      paper, interest, usury and the like, the rule in work[ers’] compensation is
      dictated by the overriding consideration that compensation is not a private
      matter to be arranged between two parties; the public has a profound
      interest in the matter which cannot be altered by any individual agreements.
      This is most obvious when such an agreement purports to destroy
      jurisdiction where it otherwise exists; practically every statute has emphatic
      prohibitions against cutting down rights or benefits by contract. The only
      exception occurs under several statutes which explicitly permit the parties
      to agree that the local statute shall not apply to out-of-state injuries.

Id. at 161 (quoting Larson’s Workers’ Compensation Law, vol. 3, § 87.71, at 395). A
number of other jurisdictions have likewise refused to enforce such agreements. See,
e.g., Swenson v. Nickaboine, 793 N.W.2d 738 (Minn. 2011); McElroy Truck Lines, Inc. v.
Pohopek, 826 A.2d 474 (Md. 2003); Neff, Inc. v. Workers’ Compensation Appeals Bd.,
624 A.2d 727 (Pa. 1993); Jenkins v. Sal Chem. Co., 280 S.E.2d 243 (W. Va. 1981);
Giltner v. Commodore Contract Carriers, 513 P.2d 541 (Or. 1973); Gotkin v. Weinberg,
66 A.2d 438 (N.J. 1949); Alaska Packers Ass’n v. Indus. Accident Comm’n, 34 P.2d 716
(Cal. 1934).

       While most courts addressing the issue have struck down forum selection
agreements in the workers’ compensation context, at least one state has apparently taken
a different approach. In a Missouri case, for example, a forum selection clause in an
employment contract was upheld, and the employee was required to seek benefits in
Wyoming, where the injury occurred. See Woodward v. J.J. Grier Co., 270 S.W.2d 155
(Mo. Ct. App. 1954).

                                           B.

       Against this backdrop, we return to the case before us. Employer, as a condition
of employment, presented Employee with hiring paperwork that sought to compel
Employee to pursue any claim for workers’ compensation benefits under the laws of the
State of Indiana. Employer now argues that this agreement, signed over two years before
the work injury, constituted a prospective election of remedies that prevents Employee
from seeking benefits under Tennessee law. We disagree.

       First, we conclude the agreement signed by Employee constitutes an exculpatory
agreement that, as a matter of law, is void as against public policy, consistent with
Maggart, 2007 Tenn. App. LEXIS 482, at *9. Second, we conclude the agreement was
an attempt to relieve Employer of its obligations under the Tennessee Workers’
Compensation Law, which is expressly prohibited by Tennessee Code Annotated section
50-6-114(a). See Overman, 193 S.W.3d at 542. Third, it is incongruous for Employer to
argue that Employee made a knowing and willful election of remedies in circumstances

                                            7
where it denied Employee’s claim and paid no benefits of any kind pursuant to the
workers’ compensation laws of Indiana, Tennessee, or any other state. Fourth, there is no
proof in the record that an Indiana tribunal would even exercise jurisdiction over a
Tennessee employee’s claim arising from an accident occurring in Tennessee or
Arkansas. Finally, Employer offered no evidence that Employee “(a) affirmatively acted
to obtain benefits in another state; or (b) knowingly and voluntarily accepted benefits
under the law of another state.” Eadie, 142 S.W.3d at 291. In short, a prospective
agreement signed over two years before the work injury that, in effect, compelled
Employee to waive any claim he may have under the Tennessee Workers’ Compensation
Law does not constitute an affirmative act to pursue benefits for this injury in Indiana or a
knowing and willful acceptance of Indiana benefits. Therefore, we conclude the forum
selection clause is invalid, and we affirm the trial court’s determination as to this issue.

                Arising Primarily out of and in the Course of Employment

       Next, Employer argues there is a “complete disconnect” between Employee’s
description of the mechanism of his injury and Dr. Grace’s causation opinion. In support
of this argument, Employer asserts Employee “never testified he lifted a trailer door.”
Our review of the hearing transcript reveals the following testimony:

       I climbed out of my truck after setting the brakes, walked to the back of the
       trailer, opened the doors, and this particular trailer did have a pretty stiff
       driver’s side door that had been repaired in the past. I had to lean on it with
       pretty much my entire body weight to get it to where it would close far
       enough to latch to the side of the trailer.

This testimony was unrefuted. In a December 13, 2017 report from Tennessee
Orthopedic Clinics, Employee explained he was “lifting the trailer door in the back and
felt a sharp pain in his upper arm and shoulder area.” In his January 5, 2018 report, Dr.
Grace diagnosed a SLAP tear and concluded, “in my medical opinion his right shoulder
injury is directly related to the incident that occurred at work as he described.”

       At an expedited hearing, the employee need not establish every essential element
of the claim by a preponderance of the evidence. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn.
Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, consistent with Tennessee Code
Annotated section 50-6-239, the employee must come forward with sufficient poof to
establish he or she “would likely prevail” on the issue at trial. Id. We have previously
concluded that this standard “does not relieve an employee of the burden of producing
evidence of an injury by accident that arose primarily out of and in the course and scope
of employment at an expedited hearing, but allows some relief to be granted if that
evidence does not rise to the level of a ‘preponderance of the evidence.’” Buchanan v.


                                             8
Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6
(Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015).

        In the present case, Employee offered unrefuted testimony that he was
experiencing no shoulder pain prior to leaving on his work-related trip on November 2,
2017. He testified he was working full time and had not missed any work due to shoulder
pain prior to that trip. He further testified he experienced a “dull stiffness” in his
shoulder after completing his pre-trip inspection, during which he climbed under the
truck and trailer to make sure a connecting pin was locked. He stated that he experienced
a “sharp pain” in his shoulder the following day as he was opening a trailer door and
pushing it back “with pretty much [his] whole body weight” to latch it to the side of the
trailer. Employer offered nothing to contradict this testimony other than to question the
consistency of Employee’s various descriptions of the events and show Employee had
previously experienced a shoulder injury in 2004 while working for another employer.
However, Employee testified, again without contradiction, that he was placed on light
duty restrictions for several weeks following that 2004 accident, never missed any work,
attended “a few doctors’ appointments,” and received no disability benefits as a result of
that incident. He denied experiencing any ongoing shoulder symptoms related to that
accident and testified he “got back to 100 percent.”

        The trial court concluded Employee was credible in his testimony. We give
deference to such findings. See McWherter v. Centurion Products, Inc., No. 2016-06-
0523, 2017 TN Wrk. Comp. App. Bd. LEXIS 31, at *7 (Tenn. Workers’ Comp. App. Bd.
May 16, 2017). Moreover, we do not find Employee’s various descriptions of the events
in question, as recorded in his testimony and the medical records, to be so inconsistent as
to warrant reversing the trial court’s credibility findings. When considering the standard
of proof required at an expedited hearing, we conclude the trial court did not err in
determining Employee has shown he is likely to prevail at trial in proving a compensable
injury. We therefore affirm the trial court’s finding as to that issue, and we affirm the
trial court’s order for the payment of medical and temporary disability benefits.

                                Attorneys’ Fees and Costs

       Next, Employer argues the trial court erred in awarding attorneys’ fees and costs
under the “unique facts and circumstances of this case.” At the time relevant to this case,
Tennessee Code Annotated section 50-6-226(d)(1) stated, in pertinent part:

       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, but not limited to, reasonable and necessary
       court reporter expenses and expert witness fees, for depositions and trials
       incurred when the employer:


                                            9
        ....

        (B) Wrongfully denies a claim by timely filing a 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
        disability benefits under § 50-6-207, if the workers’ compensation judge
        makes a finding that the benefits were owed at an expedited hearing or
        compensation hearing.

Tenn. Code Ann. § 50-6-226(d)(1) (2017). 3

       We have previously addressed the issue of attorneys’ fees awarded at an expedited
hearing. In Thompson v. Comcast Corp., No. 2017-05-0639, 2018 TN Wrk. Comp. App.
Bd. LEXIS 1 (Tenn. Workers’ Comp. App. Bd. Jan. 30, 2018), we first noted that the
word “wrongfully,” as used in the statute above, applies only to the denial of a claim but
not to the failure to timely initiate benefits. Id. at *26. Second, we noted “the statute
does not explicitly state when, in the course of litigation, an award of attorneys’ fees and
costs can be made.” Id. at *28. We then concluded “a decision to award attorneys’ fees
and expenses at an interlocutory stage of a case should be made only in extremely limited
circumstances.” Id. at *29. Nevertheless, we affirmed the trial court’s award of
attorneys’ fees based on the circumstances of that case. Specifically, we noted the
employer in that case declined to authorize medical treatment “based solely on its own
interpretation of the medical records and without seeking an expert medical opinion to
support its denial.” Id. at *31. This, along with several other factors, led to our
conclusion that the case “exemplifies one of the extremely limited set of circumstances
where an award of reasonable attorneys’ fees and costs is appropriate at an interlocutory
stage of the case.” Id.

        Bearing these principles in mind, we turn to the present case. Our analysis of
Tennessee Code Annotated section 50-6-226(a)(1)(B), as it pertains to this date of injury,
and our decision in Thompson, establishes a two-pronged test for considering a request
for attorneys’ fees and costs prior to trial. First, the trial court must determine whether
the employer “wrongfully denie[d]” the claim or “fail[ed] to initiate any of the benefits to
which the employee is entitled under this chapter.” Second, if the court makes such a
finding, it must then consider whether the request for fees falls within the “extremely
limited circumstances” that supports such an award at an interlocutory stage of the case
and thereby avoid, to the extent possible, piecemeal litigation while the parties are in the
midst of developing their proof, formulating their legal theories, and otherwise fashioning
their litigation strategies as they move toward trial. With respect to this second prong of
the test, we noted in Thompson that the court should consider the following:

3
 This statute was amended effective April 18, 2018, but the amendment applies to cases in which the date
of injury was on or after that date and is therefore not applicable to the present case.
                                                  10
       the uncertainties inherent in litigation, the limited issues typically addressed
       at expedited hearings, the fact that discovery and medical proof often are
       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 determinations
       at an interlocutory hearing are subject to change at any time prior to the
       entry of a final compensation hearing order.

Id. at 28-29.

        We conclude the trial court in the present case did not correctly analyze
Employee’s request for attorneys’ fees and expenses, as it did not consider whether this
case falls within the limited circumstances supporting an award of attorneys’ fees and
costs at an interlocutory stage of the case. It would be inappropriate for us to consider, in
the first instance, whether Employee is entitled to such fees pursuant to the standards
discussed above. We therefore vacate that part of the trial court’s order and remand the
case for the trial court to consider this issue within the framework we established in
Thompson. 4

                                             Conclusion

       Based on the foregoing, we affirm that part of the trial court’s order determining
Employee can pursue benefits under Tennessee law and ordering Employer to pay both
medical and temporary disability benefits and to authorize continuing care with Dr.
Grace. We vacate the trial court’s determination that Employee is entitled to reasonable
attorneys’ fees and costs at this time pursuant to Tennessee Code Annotated section 50-6-
226(d)(1)(B), and we remand the case.




4
  The trial judge has not awarded any fees or costs but apparently plans to do so at some point in the
future. We express no opinion as to whether a trial court’s decision to award fees and costs is ripe for
appellate review when the amount of such fees and costs has not been determined and, therefore, the
parties are not yet obligated to pay or entitled to receive any fees or costs.
                                                  11
             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD
                (HEARD NOVEMBER 27, 2018 AT KNOXVILLE)

Fred Travis, III                             ) Docket No. 2018-03-0237
                                             )
v.                                           ) State File No. 14934-2018
                                             )
Carter Express, Inc., et al.                 )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Pamela B. Johnson, Judge                     )

                     Concurring Opinion – Filed December 21, 2018

David F. Hensley, J., concurring.

       I agree with the analysis of the issues in the lead opinion. I write separately to
address the apparent conflict in the analysis of the attorneys’ fee issue with my opinion
concurring in part and dissenting in part in Thompson v. Comcast Corp., No. 2017-05-
0639, 2018 TN Wrk. Comp. App. Bd. LEXIS 1 (Tenn. Workers’ Comp. App. Bd. Jan.
30, 2018). In that case, it was my position that the Court of Workers’ Compensation
Claims did not have the authority to award attorneys’ fees and costs at an expedited
hearing. Here, the lead opinion assumes the Court of Workers’ Compensation Claims
has the authority to award attorneys’ fees and costs in appropriate cases at an expedited
hearing. I now agree with that position.

       In my separate opinion in Thompson, I acknowledged that Tennessee Code
Annotated section 50-6-226(d)(1)(B) (2017) authorizes judges to award attorneys’ fees
and costs based on a finding at an expedited hearing that an employer wrongfully denied
a claim or failed to timely initiate any of the benefits to which an employee was entitled,
as provided in the statute. However, I maintained that, although judges may properly
make such findings at expedited hearings, any award of fees or costs must await a final
hearing on the merits of the case. My position was based on the statutory limits placed
upon hearings of disputes on an expedited basis as provided in Tennessee Code
Annotated section 50-6-239(d)(1) (2017), which limits the disputed issues that judges are
authorized to address to issues “concerning the provision of temporary disability or
medical benefits.” As I expressed in Thompson, awarding attorneys’ fees prior to trial
was such a departure from the pre-2013 Reform Act statutes addressing attorneys’ fees as

                                            1
to require a clearly expressed legislative intent to do so. As noted by the majority
opinion in Thompson, the legislative history of section 50-6-226(d)(1)(B) is entirely silent
as to the proper timing of an award of attorneys’ fees. Indeed, the statute’s silence in this
regard was initially acknowledged by the Appeals Board in Andrews v. Yates Services,
LLC, No. 2016-05-0854, 2017 TN Wrk. Comp. App. Bd. LEXIS 35 (Tenn. Workers’
Comp. App. Bd. May 23, 2017), wherein we concluded that the statute “does not address
when during the litigation process an award of attorney’s fees and expenses should be
made.” Id. at *6. As stated in Andrews, “[w]e 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.” Id. at *7.

        As originally enacted in the Workers’ Compensation Reform Act of 2013, section
50-6-226(d) authorized the Court of Workers’ Compensation Claims to award attorneys’
fees and costs when an employer failed to furnish medical benefits to an employee
“provided for in a settlement or judgment.” Acts 2013, ch. 289, § 64. In the 2016
legislative session, section 50-6-226(d) was amended to expand the authority of the Court
of Workers’ Compensation Claims to award attorneys’ fees and costs when the employer
“[w]rongfully denies a claim by filing a timely notice of denial, or fails to timely initiate
any of the benefits to which an employee is entitled.” Acts 2016, ch. 1056, § 2. This
amendment was in effect at the time of the employees’ injuries in Thompson and
Andrews.

        Subsequent to the January 2018 decision in Thompson in which the majority
concluded an award of attorneys’ fees may be appropriate at the interlocutory stage of
litigation, the legislature further amended section 50-6-226(d), this time modifying the
provision added in 2016 that authorized the Court of Workers’ Compensation Claims to
award attorneys’ fees and costs where an employer wrongfully denied a claim or failed to
initiate benefits. Acts 2018, ch. 757, § 2 (effective April 18, 2018). The 2018
amendment modified subsection 50-6-226(d)(1)(B) to allow an award of attorneys’ fees
and costs when the employer “[w]rongfully denies a claim or wrongfully fails to timely
initiate any of the benefits to which the employee . . . is entitled.” The amendment
defined “wrongfully” to mean “erroneous, incorrect, or otherwise inconsistent with the
law or facts,” but did not address the timing of an award of attorneys’ fees. The
legislature’s consideration of the attorneys’ fee issue in the 2018 session, expressly
modifying section 226(d)(1)(B), while not addressing the timing of an award of such
fees, leads to my conclusion that Thompson’s earlier conclusion that an award of
attorneys’ fees may be appropriate at the interlocutory stage of a case was consistent with
legislative intent.

        The Tennessee Supreme Court has stated that the most fundamental rule of
statutory construction is that the court should ascertain and effectuate the intention of the
legislature. Rodriguez v. State, 437 S.W.3d 450, 453 (Tenn. 2014). Although jurists
have advanced well-reasoned criticisms of courts’ reliance on legislative history, and

                                             2
while it may be presumptuous to assume Tennessee legislators were aware of the
Thompson decision while considering amendments to section 50-6-226(d) during the
2018 legislative session, I view the absence of any modification of the timing of an award
of attorneys’ fees in the 2018 amendment to section 50-6-226(d)(1)(B) as evincing, at
least tacitly, an intent not to alter Thompson’s conclusion that an award of attorneys’ fees
at the interlocutory stage of workers’ compensation litigation may be appropriate. See
Antonin Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, 234-42
(Christopher J. Scalia, et al. eds., 2017).




                                             3
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Fred Travis, III                                              )     Docket No. 2018-03-0237
                                                              )
v.                                                            )     State File No. 14934-2018
                                                              )
Carter Express, Inc., et al.                                  )
                                                              )
                                                              )
Appeal from the Court of Workers’                             )
Compensation Claims                                           )
Pamela B. Johnson, 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 21st day of December, 2018.

 Name                              Certified   First Class   Via   Fax      Via     Sent to:
                                   Mail        Mail          Fax   Number   Email

 Brad C. Burnette                                                            X      bradburnette@foxandfarleylaw.com
 J. Allen Brown                                                              X      allen@jallenbrownpllc.com
 Pamela B. Johnson, 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




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
