                                                                                         FIT__ED
                                                                                        July 6, 2016

                                                                                        TN COURT OF
                                                                                   W ORKIRS' COMPENSATION
                                                                                           CLAI MS

                                                                                         Time 2:16 Pl\1


            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                          AT CHATTANOOGA

GREGORY E. POPE,                              )   Docket No.: 2015-01-0010
        Employee,                             )
v.                                            )   State File Number: 65681-2014
                                              )
NEBCO OF CLEVELAND, INC.                      )   Judge Thomas Wyatt
D/B/A TOYOTA OF CLEVELAND,                    )
          Employer,                           )
                                              )
And,                                          )
                                              )
TENNESSEE AUTOMOTIVE                          )
ASSOCIATION SELF-INSURERS'                    )
TRUST,                                        )
         Carrier.


     ORDER AMENDING THE COURT'S COMPENSATION HEARING ORDER
     FOR MEDICAL BENEFITS AND GRANTING MR. POPE'S MOTION FOR
                      DISCRETIONARY COSTS


       This matter came before the undersigned workers' compensation judge on June
30, 2016, upon a Motion to Alter or Amend and a Motion to Require the Employer to Pay
His Discretionary Costs, both filed by the employee, Gregory Pope, on June 23, 2016.
Nebco of Cleveland, Inc., d/b/a Toyota of Cleveland (Toyota of Cleveland), the
employer, responded to the motions on June 30, 2016. Upon consideration of the
positions of the parties and the entire record, the Court partially grants Mr. Pope the relief
sought in his Motion to Alter or Amend and grants his Motion for Discretionary Costs.

       Mr. Pope's Motion to Alter or Amend requests that the Court amend its May 26,
2016 Compensation Hearing Order by: (1) requiring Toyota of Cleveland to document to
him and the Court, within sixty days after May 26, 2016, the amount of each medical bill
that Toyota of Cleveland pays pursuant to the Court's May 26, 2016 Order, and whether
the vendors who received each such payment accepted it in full satisfaction of the charge

                                              1
as billed; and (2) awarding Mr. Pope's attorney a twenty percent attorney's fee on all
amounts paid by Toyota of Cleveland to satisfy the charges Mr. Pope incurred for
treatment of his compensable injury.

        Toyota of Cleveland did not oppose the imposition of conditions on its obligations
under the Court's order, but asked that, in setting deadlines, the Court consider the
difficulties inherent in paying charges under the workers' compensation fee schedule to
providers already compensated by a health carrier. Additionally, Toyota of Cleveland
objected to Mr. Pope's attorney's fee proposal, but did not oppose his motion for
discretionary costs.

           Toyota of Cleveland's Obligation to Report Payments ofMedical Charges

       Mr. Pope's request for documentation of Toyota of Cleveland's compliance with
the Court's Medical Benefits Order is reasonable. Accordingly, the Court will amend its
May 26, 2016 order to require that Toyota of Cleveland promptly forward Mr. Pope's
counsel documentation of payments tendered in compliance with the Compensation
Hearing Order. Toyota of Cleveland shall also, upon receipt, forward Mr. Pope's counsel
documentation of the providers' acceptanc.e or rejection of the above-described
payments. Toyota of Cleveland is not required to document the above to the Court.

      The Court will not set a time limit for compliance with its order. Compliance
begins with Mr. Pope, and/or the providers treating his compensable injury, properly
submitting the compensable charges to Toyota of Cleveland. The Court will amend its
May 26, 2016 Order to require that, within seven days after the issuance of this Order,
Toyota of Cleveland shall instruct Mr. Pope, through counsel, and the providers treating
his compensable injury regarding the proper method for submission of the subject
charges for payment.

       Mr. Pope's Attorney Is Entitled to an Attorney's Fee on Amounts Paid By Toyota
   of Cleveland In Satisfaction of the Charges Mr. Pope Incurred for Treatment of his
                                    Work-Related Injury

      In Langford v. Liberty Mutual Ins. Co., 854 S.W.2d 100, 101-2 (Tenn. 1993), the
Supreme Court held that contested medical expenses constitute a part of the award on
which the employee's attorney may assess the statutory twenty percent attorney's fee for
successfully prosecuting the employee's claim. Here, Mr. Brown successfully assisted
Mr. Pope in establishing the compensability of his injury, which Toyota of Cleveland
denied from the outset of the claim. Upon fmding Mr. Pope's injury compensable, the
Court ordered Toyota of Cleveland to pay the charges Mr. Pope incurred for treatment of
his compensable injury.

      At the Compensation Hearing, the parties stipulated that Toyota of Cleveland

                                            2
submitted Mr. Pope's medical bills to its health insurer and that the health insurer paid
the submitted charges directly to the subject provider. In view of that fact, the practical
effect of the Court's award of Medical Benefits is that Toyota of Cleveland will pay the
subject charges under workers' compensation and, after a provider receives payment
under workers' compensation, it will then reimburse the health insurance carrier for the
amount it previously paid in satisfaction of the subject charge.

       The Court did not award Mr. Brown a fee for these charges because they were
voluntarily paid by Toyota of Cleveland's health insurance carrier and, as such, the Court
found that these payments fell within the prohibition in Tennessee Code Annotated
section 50-6-226(a)(2)(A) (2015) that "[m]edical costs that have been voluntarily paid by
the employer or its insurer shall not be included in determining the award for purposes of
calculating the attorney's fee."

        Mr. Pope asks the Court to reconsider its ruling on this point, contending the
prohibition in section 50-6-226(a)(2)(A) is confmed to voluntary payments made by the
employer's workers' compensation carrier. Toyota of Cleveland disagrees, citing
Tennessee Court Annotated section 50-6-226(d) (2015) as authority for the proposition
that the Medical Benefits the Court ordered in its May 26, 20 16 Order should not
constitute a portion of Mr. Pope's award because Toyota of Cleveland "provided for"
said treatment by submitting the charges for payment under its health insurance policy.

       The Court could not locate, nor did counsel for the parties cite, direct precedent
governing the interpretation of the pertinent language in section 50-6-226(a)(2)(A).
However, to achieve harmonious operation of the law, a basic rule of statutory
construction requires that the Court interpret statutory language in the context of the
statutory scheme. See Lee Med., Inc. v. Beecher, 312 S.W.3d 515,526-7 (Tenn. 2010).

        The Court notes that the statutory definition of "employer" in Tennessee Code
Annotated section 50-6-102(13) (2015), provides "[i]f the employer is insured, it [the
definition of 'employer'] shall include the employer's insurer, unless otherwise provided
in this chapter." The Court considers the above-cited use of the terms "employer" and
"insurer" to be instructive on the interpretation of the term "costs that have been
voluntarily paid by the employer or its insurer" in section 50-6-226(a)(2)(A). The
legislative intent in section 50-6-102(13) was to bind an employer's workers'
compensation carrier for the employer's obligations under the Workers' Compensation
Law. On the other hand, the Court sees no rational interpretation of section 50-6-102(13)
that would indicate the general assembly also intended this language to bind the interests
of non-workers-compensation carriers, such as an employer's health insurance carrier, to
the employer's obligations under the Workers' Compensation Law.

       In view of the above, the Court finds the general assembly intended that the
prohibition in section 50-6-226(a)(2)(A) apply solely to voluntary payments made by the

                                            3
employer or its workers' compensation insurer. Accordingly, the Court grants Mr.
Pope's Motion to Alter or Amend its May 26, 2016 Compensation Hearing Order to
approve Mr. Brown's attorney's fee based on an amount calculated at twenty percent of
the payments made by Toyota of Cleveland in payment for the treatment of Mr. Pope's
compensable injury.

        Toyota of Cleveland's objection grounded on section 50-6-226(d) is without merit.
That statutory provision only applies where a dispute about the provision of medical
benefits occurs after said benefits are the su~ject of a settlement or judgment. Such is not
the situation here.


                             Motion for Discretionary Costs

       Mr. Pope moves the Court to order Toyota of Cleveland and its carrier to
reimburse, as discretionary costs, charges of $422.00 from Cleveland Reporting Co. and
$90.00 from Elite Reporting Co. Mr. Pope incurred these charges for, respectively, one-
half of the court reporter's bill for transcribing the depositions of Eddie Triplett and Mr.
Pope and one-half of the bill for the appearance of a court reporter at the Compensation
Hearing.

      Toyota of Cleveland did not oppose the motion. Accordingly, the Court orders
Toyota of Cleveland to reimburse Mr. Pope for the above-described court reporter
expenses.

       IT IS, THEREFORE, ORDERED as follows:

   1. The Court amends its May 26, 20 16 Compensation Hearing Order for Medical
      Benefits by requiring that Toyota of Cleveland promptly document to Mr. Pope,
      through counsel, the amounts it pays to satisfy the charges Mr. Pope incurred for
      treatment of his compensable injury, and, further, that it similarly document
      whether the providers accepted or rejected as a full and fmal payment the amounts
      so paid. Toyota of Cleveland will also instruct Mr. Pope, through counsel, and the
      providers treating his compensable injury regarding the proper method for
      submitting charges for payment under the Court's Order.

   2. The Court amends its May 26, 2016 Compensation Hearing Order for Medical
      Benefits by awarding Mr. Pope's attorney an attorney's fee based on twenty
      percent of the amounts paid by Toyota of Cleveland to satisfy the charges incurred
      for treatment of Mr. Pope's compensable injuries.

   3. The Court grants Mr. Pope's Motion for Discretionary Costs. Toyota of Cleveland
      shall reimburse Mr. Pope, as discretionary costs, the $422.00 bill from Cleveland

                                             4
      Reporting Co. for transcribing the depositions of Mr. Pope and Eddie Triplett, and
      the $90.00 bill from Elite Court Reporting for the appearance of a court reporter at
      the Compensation Hearing.

   4. Counsel for Toyota of Cleveland shall file or cause to be filed a statistical data
      form in this claim within ten days of the date of entry of this order.

   ENTERED this the 6th day of July, 2016.



                                   Judge Thomas Wyatt
                                   Court of Workers' Compensation Claims



Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers' Compensation Appeals Board or the
Tennessee Supreme Court. To appeal your case to the Workers' Compensation Appeals
Board, you must:

   1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within thirty calendar days of the
      date the Workers' Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing
      party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of lndigency on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of


                                             5
      Indigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The party filing the notice of appeal, having the responsibility of ensuring a
      complete record on appeal, may request, from the Court Clerk, the audio recording
      of the hearing for the purpose of having a transcript prepared by a licensed court
      reporter and filing it with the Court Clerk within fifteen calendar days of the filing
      of the Expedited Hearing Notice of Appeal. Alternatively, the party filing the
      appeal may file a joint statement of the evidence within fifteen calendar days of
      the filing of the Compensation Hearing Notice of Appeal. The statement of the
      evidence must convey a complete and accurate account of what transpired in the
      Court of Workers' Compensation Claims and must be approved by the workers'
      compensation judge before the record is submitted to the Clerk of the Appeals
      Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (20 15).

   6. After the Workers' Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers' Compensation Appeals Board, the appeal will be
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
      calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
      Comp. R. & Regs. 0800-02-22-.02(3) (2015).

    To appeal your case directly to the Tennessee Supreme Court, the
Compensation 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, this Order will become final by operation of law thirty (30) calendar days
after entry, pursuant to Tennessee Code Annotated section 50-6-239(c)(7).




                                            6
                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 6th
day of July, 2016.


Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
William J. Brown,                                       wjb@vollaw.com
Attorney                                          X
Jennifer Orr Locklin,
Attorney                                          X     Jennifer.locklin@farrar-
                                                        bates.com




                                        _& ffi~
                                        Penny Shr
                                        Court of  rkers' Compensation Claims
                                        WC.CourtCierk@tn.gov




                                            7
