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

 NICOLE D. BOWLIN,                               )    Docket No. 2017-07-0224
           Employee,                             )
 v.                                              )
 SERVALL PEST CONTROL,                           )    State File No. 76010-2016
           Employer,                             )
 and                                             )
 ACCIDENT FUND INS. CO.,                         )    Judge Allen Phillips
           Carrier.                              )


                                  COMPENSATION ORDER


       This case came before the Court by telephone on June 19, 2020, for a Compensation
Hearing to determine whether Servall must pay an attorney’s fee on disputed medical
benefits. The Court declines to order Servall to pay a fee for the following reasons.

                                     History of Claim

        After an evidentiary hearing, the Court entered an Expedited Hearing Order for
Medical Benefits in which it held Ms. Bowlin would likely prevail in establishing a
compensable injury. It ordered Servall to provide Ms. Bowlin medical treatment and to pay
medical bills of $89,377.37. The Court also awarded Ms. Bowlin a twenty-percent attorney
fee of those bills under Tennessee Code Annotated section 50-6-226(a)(1) (2019).

       Servall appealed, and the Appeals Board affirmed the Court’s holding that Ms.
Bowlin would likely prevail on compensability. Bowlin v. Servall. LLC, 2018 TN Wrk.
Comp. App. Bd. LEXIS 6, at *12 (Feb. 18, 2018). However, the Board vacated the fee
award, holding that, “[t]here is nothing about the circumstances of this case that would
remove it from the rule requiring highly unusual circumstances to warrant an award of
attorney’s fees at an interlocutory stage of the case.” Id. at *15, citing Thompson v. Comcast
Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at*29 (Jan. 30, 2018). Thus, the Board


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found it was “premature” for the Court to award attorney’s fees on the disputed medical
bills at the Expedited Hearing. Id. at *15.

       In June 2020, the parties settled the case but informed the Court that Servall did not
agree to pay attorney’s fees on the medical bills. So, the Court set a Compensation Hearing
to resolve the issue and consider the terms of the settlement. The Court also asked the
parties to brief the attorney’s fee issue.

       At the Compensation Hearing, the Court found the settlement secured Ms. Bowlin
substantially the benefits to which she was entitled under law. The parties also stipulated
that Servall had paid the contested medical bills under the Fee Schedule.

       As to the fee dispute, Servall questioned the Court’s authority to award attorney’s
fees on medical bills. Alternatively, it argued that if the Court were to award a fee, then it
should be twenty percent of the amount Servall paid under the Fee Schedule and not twenty
percent of the full amount.

         Ms. Bowlin argued that Langford v. Liberty Mut. Ins. Co., 854 S.W.2d 100, 102
(Tenn. 1993) allows attorney’s fees on a “recovery or award” of contested medical
expenses. Further, in Reatherford v. Lincoln Brass Works, Inc., No. 01S01-9707-CV-0014,
1998 Tenn. LEXIS 33 (Tenn. Worker’s Comp. Panel Jan. 26, 1998), the Panel held an
attorney’s fee on contested medical bills should be based on the total amount awarded at
trial rather than on a reduced amount later agreed to by a provider. Thus, she requested the
Court order Servall to pay a twenty percent fee based on the full amount of the medical
bills.

       The parties agreed the full amount of the medical bills was $89,337.37 and that
Servall paid $24,382.08 under the Fee Schedule.

                        Findings of Fact and Conclusions of Law

        Under Tennessee Code Annotated section 50-6-204(a)(1)(A), Servall must pay all
reasonable and necessary medical expenses to treat Ms. Bowlin’s injury. As relevant here,
the Fee Schedule provisions state, “[e]xcept when a waiver is granted by the Bureau, in no
event shall reimbursement [for medical expenses] be in excess of these Fee Schedule Rules
that are in force on the date of service [.]” Tenn. Comp. R. & Regs. 0800-02-18-.02(2)(b)(4)
(September, 2019). Reimbursement in excess of the Fee Schedule subjects the employer or
carrier to civil penalties. Id.

       Here, Servall paid Ms. Bowlin’s medical bills under the Fee Schedule. The law does
not require it to pay attorney’s fees based on a percentage of the award. Instead, Tennessee



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Code Annotated section 50-6-226(a) provides that attorney’s fees are “to be paid by the
party employing the attorney.”

       In Wilkes v. Resource Auth. of Sumner Cty., 932 S.W.2d 458, 464 (Tenn. 1996), the
Tennessee Supreme Court held the employee’s attorney was entitled to a fee for recovery
of medical expenses but said the fee must come out of the expenses and not from the
employer. The Court called the result “not attractive,” but held it was “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.” The Court also recognized “the practical impact of [its] holding is that the
employee will not receive one hundred percent of [the medical bills].”

        A Panel reached the same conclusion in Brown v. State, No. 01S01-9502-BC-
000201995, Tenn. LEXIS 712 (Tenn. Workers’ Comp. Panel Nov. 22, 1995), where it
stated:

       When an employer or its insurer fails or refuses to promptly provide medical
       and hospital care, as required, it is an offense against the purpose of the Act.
       In this case, the employer denied any liability until the injured worker
       employed an attorney and filed a complaint, though it apparently had every
       reasonable opportunity and the means to comply with the requirements of the
       law.

       Nevertheless, the commissioner was correct in denying the claimant’s
       application for an order requiring the employer to pay his attorney's fee for
       collecting medical expenses. . . . Regrettably, the claimant must pay that fee
       out of his recovery of disability benefits.

Id. at *10-11.

      Wilkes and Brown control here. Though Servall 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 Servall 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.

IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Ms. Bowlin’s request for attorney’s fees on the contested medical
      benefits.

   2. The Court incorporates by reference the terms of the Settlement Agreement.



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   3. Servall shall pay the $150.00 filing fee to the Court Clerk under Tennessee
      Compilation Rules and Regulations 0800-02-21-.06 within five business days of
      this order becoming final, and for which execution might issue if necessary.

   4. Servall filed a Statistical Data Form (SD-2) with the Settlement Agreement.

   5. Absent an appeal, this order shall become final thirty days after entry.

ENTERED July 16, 2020.



                                          _____________________________________
                                          Judge Allen Phillips
                                          Court of Workers’ Compensation Claims


                                      APPENDIX

Exhibits:
   1. Ms. Bowlin’s Counsel’s Application for Attorney’s Fees

Technical record:
   1. Expedited Hearing Order
   2. Appeals Board Opinion
   3. Order Granting Employer’s Motion to Enforce Payment of Medical Expenses
   4. Order Setting Compensation Hearing
   5. Employee’s Brief for Attorney’s Fees
   6. Employer’s Brief in Opposition to Attorney’s Fees




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                               CERTIFICATE OF SERVICE

       I certify that a copy of this Compensation Hearing Order was sent as indicated on July
16, 2020.

  Name                                      Via Email      Service Sent To:

  Monica R. Rejaei,                             X        mrejaei@nstlaw.com
  Attorney for Employee
  Gordon C. Aulgur,                             X        Gordon.Aulgur@accidentfund.com
  Attorney for Employer



                                            _____________________________________
                                            Penny Shrum, Clerk of Court
                                            Court of Workers’ Compensation Claims
                                            WC.CourtClerk@tn.gov




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                        Compensation Hearing Order Right to Appeal:
     If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
   1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
      Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the
      date the compensation hearing order was filed. When filing the Notice of Appeal, you
      must serve a copy upon the opposing party (or attorney, if represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of your appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
      reporter must prepare a transcript and file it with the court clerk within fifteen calendar
      days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
      evidence prepared jointly by both parties within fifteen calendar days of the filing of the
      Notice of Appeal. The statement of the evidence must convey a complete and accurate
      account of the hearing. The Workers’ Compensation Judge must approve the statement
      of the evidence before the record is submitted to the Appeals Board. If the Appeals
      Board is called upon to review testimony or other proof concerning factual matters, the
      absence of a transcript or statement of the evidence can be a significant obstacle to
      meaningful appellate review.

   4. After the Workers’ Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers’ Compensation
      Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
                                              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 *

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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]




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