1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Jamie Henderson, as Surviving Spouse of ) Docket No. 2020-06-1013

David Joe Turner )

) State File No. 44049-2020

v. )

)

Pee Dee Country Enterprises, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Kenneth M. Switzer, Chief Judge )

Reversed and Remanded

This is the second appeal in this death case. As in the initial appeal, the issue concerns 

the trial court’s award of attorney’s fees. In both appeals, the trial court entered orders 

awarding substantially less than the fees requested by the surviving spouse’s attorney and 

provided for in a contract between the surviving spouse and her attorney. The underlying 

claim for death benefits was resolved without a trial, but the employer objected to the 

amount of the attorney’s fees sought by the surviving spouse’s attorney and to the

payment of those fees in a lump sum. Following a hearing on the request for attorney’s

fees, the trial court awarded a lump sum fee but reduced the fee from 20% to 7.5% of the 

difference between the recovery achieved under Tennessee law and the maximum 

recovery available under Mississippi law. Following the first appeal by the surviving 

spouse, we vacated the trial court’s order and remanded the case for further consideration 

of the statutory provisions governing the review and approval of attorney’s fees. The 

trial court subsequently issued an order addressing the statutory provisions, and it again 

awarded a lump sum fee based on 7.5% of the difference between the recovery achieved 

in Tennessee and the potential recovery in Mississippi. The surviving spouse has again 

appealed. Upon careful consideration of the statutory provisions at issue, we reverse the 

trial court’s order and remand the case for entry of an order approving the attorney’s fee 

agreed to by the surviving spouse and her attorney.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding 

Judge Timothy W. Conner joined. Judge David F. Hensley dissented.

M. Reed Martz and J. Hale Freeland, Oxford, Mississippi, for the surviving spouseappellant, Jamie Henderson

FILED

Jul 23, 2021

01:15 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
2

Lee Anne Murray and Taylor R. Pruitt, Brentwood, Tennessee, for the employerappellee, Pee Dee Country Enterprises, Inc.

Factual and Procedural Background

This is the second appeal in this case concerning a dispute over attorney’s fees. 

The factual and procedural background of the case was summarized in our earlier opinion 

as follows:

On September 18, 2019 (or soon after midnight on September 19), 

while traveling in California in the course and scope of his employment 

with Pee Dee Country Enterprises, Inc. (“Employer”), David Joe Turner 

(“Employee”) was tragically killed in a motor vehicle accident. Employer 

maintained its business in Davidson County, Tennessee, while Employee 

and his wife, Jamie Henderson (“Surviving Spouse”) lived in Lafayette 

County, Mississippi. The claim was accepted as compensable by 

Employer, and its insurer began paying death benefits under the laws of the 

State of Mississippi soon after Employee’s death.

In December 2019, Surviving Spouse retained her current counsel, 

who advised her to pursue death benefits under Tennessee law instead of 

Mississippi law. In January 2020, Surviving Spouse advised Employer of 

her intent to pursue death benefits in Tennessee. Employer, through its 

insurer, promptly agreed to pay death benefits pursuant to Tennessee law. 

It is undisputed that Surviving Spouse had agreed to pay her attorneys 

twenty percent of the difference between the maximum amount of death 

benefits payable under Mississippi law ($199,714.50) and the maximum 

amount payable under Tennessee law ($432,000.00). Twenty percent of 

the difference of $232,285.50 would equal $46,457.10.

Although the underlying claim for death benefits was resolved, the 

parties could not resolve the issue of attorneys’ fees. Employer declined to 

pay the attorneys’ fee in a lump sum and objected to the extent of the fee. 

On September 16, 2020, the trial court entered an order requiring Surviving 

Spouse’s counsel to supplement his affidavit in support of the request for 

approval of the attorneys’ fees with information documenting the actual 

time and labor required for his firm’s representation of Surviving Spouse.

Surviving Spouse’s counsel filed this supplemental information as ordered 

but argued “the appropriate measurement is the reasonableness of the 

contingency fee rather than the retrospective review of time and labor 

versus the work actually performed.”
3

A hearing to approve the underlying settlement was conducted on 

October 9, 2020, and the underlying settlement was approved with the 

exception of the attorneys’ fee. Following a subsequent hearing to address 

the attorneys’ fee issue, the trial court issued an order granting an attorneys’ 

fee but reducing the fee from twenty percent of the additional benefit 

amount to seven-and-one-half percent of the additional benefit amount.

Henderson v. Pee Dee Country Enters., Inc., No. 2020-06-1013, 2021 TN Wrk. Comp. 

App. Bd. LEXIS 8, at *2-4 (Tenn. Workers’ Comp. App. Bd. Mar. 8, 2021) (footnote 

omitted).

In the first appeal, we concluded the trial court failed to address the applicability 

of certain statutory provisions governing the approval of attorney’s fees in workers’ 

compensation cases, and we vacated the trial court’s order and remanded the case for 

further consideration in light of those provisions. The parties submitted additional briefs 

to the trial court, after which the court concluded that “the Court of Workers’ 

Compensation Claims has sole jurisdiction and statutory authority to approve attorneys’

fees,” and that judges of the Court of Workers’ Compensation Claims “must review the 

requested fee for reasonableness ‘as appropriate’ under Supreme Court Rule 8 and make 

required findings applying the factors within that rule.” The court reiterated its award of 

$17,421.41 in attorney’s fees, or 7.5% of the increase in Surviving Spouse’s recovery, to 

be paid in a lump sum. Surviving Spouse has appealed the trial court’s order.

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) (2020). 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 (2020).

Analysis

On appeal, Employee asserts the trial court erred in its interpretation and 

application of the second sentence of section 50-6-226(a)(1) and by awarding an 

“arbitrary attorney’s fee of only 7.5% of the increased benefits” available to Employee 

under Tennessee law. Conversely, Employer contends the trial court correctly held the 

second sentence of Tennessee Code Annotated section 50-6-226(a)(1) “does not apply to 
4

this case.” In addressing this issue, we must first interpret certain statutes in the workers’ 

compensation law governing attorney’s fees. Specifically, we must determine whether 

the second sentence of Tennessee Code Annotated section 50-6-226(a)(1) (2019), which 

mandates “[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,” applies to this case. 

For the reasons explained below, we conclude it does. 

The Tennessee Supreme Court has, on numerous occasions, addressed the 

principles of statutory construction:

The primary goal of statutory interpretation is to carry out legislative intent 

without expanding or restricting the intended scope of the statute. In

determining legislative intent, we first must look to the text of the statute

and give the words of the statute “their natural and ordinary meaning in the

context in which they appear and in light of the statute’s general purpose.” 

When a statute’s language is clear and unambiguous, we enforce the statute

as written; we need not consider other sources of information. We apply

the plain meaning of a statute’s words in normal and accepted usage

without a forced interpretation. We do not alter or amend statutes or

substitute our policy judgment for that of the Legislature.

Coleman v. Olson, 551 S.W.3d 686, 694 (Tenn. 2018) (citations omitted). In addition,

the Supreme Court has stated:

In construing legislative enactments, we presume that every word in a

statute has meaning and purpose and should be given full effect if the

obvious intention of the General Assembly is not violated by doing

so. . . . It is only when a statute is ambiguous that we may reference the

broader statutory scheme, the history of the legislation, or other sources. 

Further, the language of a statute cannot be considered in a vacuum, but

“should be construed, if practicable, so that its component parts are

consistent and reasonable.” Any interpretation of the statute that “would

render one section of the act repugnant to another” should be avoided. We

also must presume that the General Assembly was aware of any prior

enactments at the time the legislation passed.

In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009) (citations omitted). In

applying these principles, we have explained previously that

we must construe a statute so that no part will be inoperative, superfluous,

void, or insignificant. We are required to give effect to every word, phrase,

clause, and sentence of the act in order to achieve the Legislature’s intent

and we must construe a statute so that no section will destroy another.
5

Thompson v. Comcast Corp., No. 2017-05-0639, 2018 TN Wrk. Comp. App. Bd. LEXIS

1, at *25 (Tenn. Workers’ Comp. App. Bd. Jan. 30, 2018) (emphasis added) (citations

omitted).

As pertinent here, the statute at issue, Tennessee Code Annotated section 50-6-

226(a)(1), provides as follows:

The fees of attorneys for services to employees under this chapter, shall be 

subject to the approval of the workers’ compensation judge before which 

the matter is pending, as appropriate; provided, that no attorney’s fees to be 

charged employees shall be in excess of twenty percent (20%) of the 

amount of the recovery or award to be paid by the party employing the 

attorney. The 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, or, in cases governed by § 50-6-207(4), twenty percent (20%) of 

the first four hundred fifty (450) weeks of the award.

Tenn. Code Ann. § 50-6-226(a)(1) (emphasis added).

The plain language of the initial sentence makes clear that attorney’s fees are 

subject to the approval of the workers’ compensation judge before whom the matter is 

pending. Like all authority exercised by judges on the Court of Workers’ Compensation 

Claims, the authority to approve attorney’s fees is subject to the terms and limitations of 

the statutory language and the rules governing the operation of that court.

Here, the crux of the appeal hinges on the second sentence of section 226(a)(1), 

which mandates “the department” to deem fees for attorneys representing employees to 

be reasonable in certain circumstances. Specifically, that sentence presents two scenarios 

where the discretion to refuse to approve attorney’s fees is limited: (1) when an attorney’s

fee does not exceed 20% of the “award to the injured worker” and (2) when an attorney’s

fee does not exceed 20% of the first 450 weeks under section 50-6-207(4).1

 In both 

circumstances described in this sentence, the only entity vested with authority to approve 

attorney’s fees is the Court of Workers’ Compensation Claims.2

 Moreover, there is a 

1 Tennessee Code Annotated section 50-6-207(4) concerns cases where the employee is adjudged to be 

permanently and totally disabled as the result of a work-related injury.

2 We considered the trial court’s determination that the term “the department” as used in the second 

sentence of section 226(a)(1) refers to other employees of the Bureau of Workers’ Compensation but not 

to the judges of the Court of Workers’ Compensation Claims. Specifically, the trial court cited Tennessee 

Code Annotated section 50-6-210(f), which governs claims involving the death of an employee whose 

dependents are citizens of another country. That section authorizes the Administrator of the Bureau of 

Workers’ Compensation to approve settlements in such claims. However, nothing in section 210(f) 

references any type of authority by non-judges to approve a claim for attorney’s fees. We also considered 

other statutory provisions, including those addressing the Uninsured Employer’s Fund, governed by 
6

clear statutory link between the Court of Workers’ Compensation Claims and the phrase 

“the department.” First, the Court of Workers’ Compensation Claims operates under the 

auspices of the Bureau of Workers’ Compensation. See Tenn. Code Ann. § 50-6-237. 

Second, the term “bureau” is defined to mean “the bureau of workers’ compensation of

the department of labor and workforce development.” Tenn. Code Ann. § 50-6-102(5)

(emphasis added). Finally, the word “department” is statutorily defined to mean “the 

department of labor and workforce development.” Tenn. Code Ann. § 50-6-102(10).3

 

Therefore, when considering the plain and ordinary meaning of the statutory language 

within the context of this section and the entire workers’ compensation law, we conclude

the phrase “the department” includes judges on the Court of Workers’ Compensation 

Claims, and this sentence limits their discretion to refuse to approve attorney’s fees in 

either of the scenarios specified in that sentence.

In his dissent, our colleague asserts that if the General Assembly’s intent was to 

limit the discretion of workers’ compensation judges in approving attorney’s fees under 

the scenarios described in the second sentence of section 226(a)(1), it could easily have 

used the phrase “workers’ compensation judges” rather than the term “the department.” 

We conclude, conversely, that if the legislature had intended to exclude workers’

compensation judges from the class of persons authorized to review and approve

attorney’s fees in workers’ compensation cases, as described in the second sentence of

section 226(a)(1), it could just as easily have made that clear.

4

Tennessee Code Annotated section 50-6-801 et seq., and penalties, governed by Tennessee Code 

Annotated section 50-6-118, but none of those provisions addresses any authority to approve claims for 

attorney’s fees. Finally, we considered that the Tennessee Claims Commission has the authority to make 

an “award” to “injured worker[s].” However, the Tennessee Claims Commission, which reviews 

workers’ compensation claims of state employees, operates under the auspices of the Tennessee 

Department of Treasury, not the Tennessee Department of Labor and Workforce Development. Thus, we 

cannot conclude that the phrase “the department” as used in Tennessee Code Annotated section 50-6-

226(a)(1) refers to the Tennessee Claims Commission.

3 As noted by the trial court, we also considered that the Bureau of Workers’ Compensation is an 

“autonomous unit” of the Department of Labor and Workforce Development. See Tenn. Code Ann. § 4-

3-1409(a). Nevertheless, we conclude there is a clear statutory link between the phrase “the department” 

as used in the context of section 226(a)(1) and the Court of Workers’ Compensation Claims in light of the 

relevant definitions contained in Tennessee Code Annotated section 50-6-102.

4 In his dissent, our colleague emphasizes the more than 100-year history of Tennessee’s workers’ 

compensation law in which judges have had the authority to consider the reasonableness of claims for 

attorney’s fees. However, it is undisputed that the legislature created the Court of Workers’ 

Compensation Claims by statute in 2013. All authority vested in that court is derived from the statute and 

rules promulgated in accordance with statutory authority. Thus, we do not find it dispositive that, prior to 

the enactment of the 2013 Workers’ Compensation Reform Act, judges on other courts historically had 

the authority to review attorney’s fee claims without the limitations specified in section 226(a)(1).
7

Furthermore, if the term “the department” as used in section 226(a)(1) does not 

include judges on the Court of Workers’ Compensation Claims, then it is unclear to 

whom that term applies. As discussed above, we have identified no other persons or 

entities within the Tennessee Bureau of Workers’ Compensation or the Department of 

Labor and Workforce Development who have the authority to review and approve 

attorney’s fees based on an “award to the injured worker” or in cases “governed by § 50-

6-207(4).” In short, Employer, the trial court, and our dissenting colleague have not 

offered any reasonable alternative explanation as to the meaning of the second sentence 

of section 226(a)(1). Hence, if there are no other persons or entities connected to “the 

department” who have the authority to review and approve claims for attorney’s fees in 

the circumstances described in the second sentence of section 226(1)(a), then the 

interpretation sought by Employer and accepted by the trial judge and our dissenting 

colleague renders the second sentence of that section meaningless and superfluous, 

something the Tennessee Supreme Court has counseled against. See, e.g., Young v. Frist 

Cardiology, PLLC, 599 S.W.3d 568, 571 (Tenn. 2020) (statutes must be construed “so

that no part will be inoperative, superfluous, void[,] or insignificant”).

Finally, we note that, when the Workers’ Compensation Reform Act of 2013

(“Reform Act”) was drafted, the language at issue in this appeal, which previously 

appeared in Tennessee Code Annotated section 50-6-226(a)(2)(B), was retained, revised, 

and moved to section 226(a)(1). The pre-reform version read:

For cases submitted to the department for approval pursuant to § 50-6-

206(c) that are resolved prior to trial or pursuant to a benefit review 

conference, the 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, or, in cases governed by § 50-6-207(4), twenty percent (20%) of 

the first four hundred (400) weeks of the award.

Tenn. Code Ann. § 50-6-226(a)(2)(B) (2012) (emphasis added). The portion that was 

retained and moved was also revised to change the phrase “the first four hundred (400) 

weeks” to “the first four hundred fifty (450) weeks.” Thus, it is apparent that the drafters 

considered this very sentence, updated it to conform to other provisions of the Reform 

Act, and moved it to another paragraph of this section. Hence, we find no basis to 

conclude that the drafters erred in retaining this sentence from pre-reform statutes. 

Instead, we conclude the drafters intended to revise and retain the sentence when it was 

included in the Reform Act.

In sum, we conclude that the second sentence of Tennessee Code Annotated 

section 50-6-226(a)(1), which limits the discretion to refuse to approve attorney’s fees in 

circumstances where the fee does not exceed 20% of the award to the injured worker or 

20% of the first 450 weeks of benefits in claims brought pursuant to section 207(4), 
8

applies to the judges on the Court of Workers’ Compensation Claims.5 The policy 

arguments espoused by our dissenting colleague, while persuasive, are within the 

purview of the General Assembly. Despite what we may wish the law to be, we are 

obligated to interpret statutory language in a way that is consistent with the rules of 

statutory construction and not in a way that renders statutory language meaningless or 

superfluous.

Conclusion

Accordingly, we reverse the order of the trial court and remand this case for entry 

of an order approving the claim for attorney’s fees consistent with this opinion.

6

5 In his dissent, our colleague warns that subjecting the judges on the Court of Workers’ Compensation 

Claims to the limitations contained in the second sentence of section 226(a)(1) could result in attorneys 

being forced to “negotiate” with trial judges for the approval of attorneys’ fees, and other “consequences 

detrimental to the workers’ compensation law.” We note, however, that, wholly separate and apart from 

the provisions of Tennessee’s Workers’ Compensation Law governing attorney’s fees, attorneys 

representing injured workers or their dependents must abide by Rule 8 of the Rules of the Tennessee 

Supreme Court, RPC 1.5, and any other rules, statutes, or regulations that govern fees in contingency fee 

cases.

6 It remains within the trial court’s discretion to determine whether the attorney’s fee should be commuted 

to a lump sum as provided in Tennessee Code Annotated section 50-6-229(a).
1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Jamie Henderson, as Surviving Spouse of ) Docket No. 2020-06-1013

David Joe Turner )

) State File No. 44049-2020

v. )

)

Pee Dee Country Enterprises, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Kenneth M. Switzer, Chief Judge )

Dissent

Hensley, J., dissenting.

Respectfully, I dissent. In the more than one-hundred-year history of Tennessee

workers’ compensation law, judges before whom a claim is pending have had the

authority to consider the reasonableness of the attorney’s fees charged for services to

employees. The majority alters this history to require judges of the Court of Workers’

Compensation Claims to “deem” an employee’s attorney’s fees to be reasonable in cases

that do not proceed to trial so long as the fees do not exceed 20% of the amount of the

recovery or award. The majority’s rationale is grounded in the fact that judges of the

Court of Workers’ Compensation Claims are employees of the Bureau of Workers’

Compensation of the Department of Labor and Workforce Development (“Bureau”).

The Bureau is “a separate administrative entity [of the Executive Branch] for

programs, personnel, and budgets,” the supervision of which is placed in the

administrator of the Bureau. Tenn. Code Ann. § 4-3-1408(b), 1409(b)(1).

1 The Bureau

is “an autonomous unit . . . attached to the department of labor and workforce

development for administrative matters only.” Tenn. Code Ann. § 4-3-1409(a) (2019)

(emphasis added). See also Acts 2013, ch. 289 § 1. Nonetheless, the majority cannot

conceive of an instance in which any other employee in the Department of Labor and

Workforce Development might be called upon to approve attorney’s fees in a claim

subject to the 2013 Act, and for that reason interprets Tennessee Code Annotated section

1 As originally enacted, the administrative entity was identified in the Workers’ Compensation Reform 

Act of 2013 as the “Division of Workers’ Compensation.” The name was changed to the “Bureau of 

Workers’ Compensation” in 2015. See Acts 2015, ch. 341 § 16.
2

50-6-226(a)(1) to require judges of the Court of Worker’s Compensation Claims to

“deem” an employee’s attorney’s fee to be reasonable in cases that do not proceed to trial

if the attorney’s fee does not exceed 20% of the amount of the recovery or award to the

injured worker or, in cases of permanent total disability, 20% of the first 450 weeks of the

award. The majority’s conclusion is counter to Tennessee Supreme Court Rule 8, RPC

1.5, and, in my opinion, the legislature never intended this result.

In an effort to give meaning to the second of the three sentences in section 50-6-

226(a)(1), the majority interprets the term “department,” to include the judges of the

Court of Worker’s Compensation Claims. The statute provides as follows:

The fees of attorneys for services to employees under this chapter, shall be

subject to the approval of the workers’ compensation judge before which

the matter is pending, as appropriate; provided, that no attorney’s fees to be

charged employees shall be in excess of twenty percent (20%) of the

amount of the recovery or award to be paid by the party employing the

attorney. The 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, or, in cases governed by § 50-6-207(4), twenty percent (20%) of

the first four hundred fifty (450) weeks of the award. All attorney’s fees

for attorneys representing employers shall be subject to review for

reasonableness of the fee and shall be subject to approval by a workers’

compensation judge when the fee exceeds ten thousand dollars ($10,000).

Tenn. Code Ann. § 50-6-226(a)(1) (2019) (emphases added). Citing section 50-6-

102(10) (2019), the majority notes that “department” is defined to mean “the department

of labor and workforce development,” but the majority glosses over the history of the

term’s inclusion in the workers’ compensation law, which, in my opinion, is pertinent and

significant.

The Workers’ Compensation Reform Acts of 1992 and 1996

The Workers’ Compensation Reform Act of 1992 brought substantial changes to

the workers’ compensation law, including the advent of the workers’ compensation

specialist program and benefit review conferences that were designed to, among other

things, “[f]acilitate the resolution of issues without the expense of litigation or attorneys’

fees for either party.” See Acts 1992, ch. 900 §§ 11, 12. From the effective date of the

1992 Act, workers’ compensation specialists were authorized to order the initiation of

temporary disability and/or medical benefits to an employee, Id. at § 13, assist parties in

resolving disputes “by mutual agreement or in a settlement,” Id. at § 15, and “reduce the

agreement or the settlement to writing.” Id. However, consistent with past law, the

settlements, even when reduced to writing, were not effective until they were “approved

by the court.” Id. The 1992 Act authorized workers who were permanently totally
3

disabled to recover weekly indemnity benefits “until the employee reaches the age of

sixty-five,” and it provided that attorney’s fees “in contested cases of permanent total

disability shall be calculated upon the first four hundred (400) weeks of disability only.”

Id. at § 17. Further, the Act provided that attorney’s fees “may be paid as a partial lump

sum from any award when approved and ordered by the trial judge.” Id. at § 25. The

1992 Act did not, however, authorize any tribunal other than judicial courts to approve

settlement agreements. See Tenn. Code Ann. § 50-6-206 (1993). The authority of the

Commissioner of Labor to approve a workers’ compensation settlement agreement and to

approve attorney’s fees charged for services to injured workers came four years later.

The Workers’ Compensation Reform Act of 1996 authorized “[t]he Commissioner

of Labor or the commissioner’s designee [to] approve a proposed [workers’

compensation] settlement among the parties” if certain requirements were met. Acts

1996, ch. 944 § 14(c). The 1996 Act amended section 50-6-226(a) regarding attorney’s

fees to make attorney’s fees “subject to the approval of the commissioner or the court

before which the matter is pending, as appropriate,” and the Act continued the 20%

ceiling on attorney’s fees. See Tenn. Code Ann. § 50-6-226(a) (1997) (emphasis added).

The 1996 Act made attorney’s fees for attorneys representing employers “subject to

review for reasonableness” and “subject to approval by a court when the fee exceeds ten

thousand dollars ($10,000).” Id. at § 17(a)(1) (emphasis added). In addition, the 1996

Act specifically addressed attorney’s fees in cases submitted to the “department” for

settlement approval and in cases that proceeded to trial:

For cases submitted to the department for approval pursuant to Section 50-

6-206(c) which are resolved prior to trial or pursuant to a benefit review 

conference, the department shall deem the attorney[’]s fee to be reasonable 

if such fee does not exceed the lesser of twenty percent (20%) of the award 

to the injured worker or ten thousand dollars ($10,000). For fees in excess 

of ten thousand dollars ($10,000), any court with jurisdiction to hear a 

matter pursuant to Section 50-6-225 shall review such case solely for the 

purpose of approving such fees as are reasonable.

In cases that proceed to trial, an employee’s attorney shall file an 

application for approval of a proposed attorney[’]s fee. Where the award of 

an attorney’s fee exceeds ten thousand dollars ($10,000), the court shall 

make specific findings as to the factors which justify such a fee as provided

in DR 2-106 of Rule 8 of the Rules of the Supreme Court.

Id. at § 17(a)(2)(B), (C) (emphases added). Neither the 1992 Act nor the 1996 Act

defined “department.” However, the 1992 Act defined “Commissioner” to mean “the

Commissioner of the Department of Labor.” Acts 1992, ch. 900 § 2.
4

Thus, following the effective date of the 1996 Act, the parties in a case in which a

settlement agreement was reached prior to trial or in a benefit review conference could

seek approval from the Commissioner of the Department of Labor or the Commissioner’s

designee, or from a court having jurisdiction to hear workers’ compensation cases. If the

parties presented the settlement to the Commissioner or the Commissioner’s designee, the

“department” was statutorily required to “deem the attorney[’]s fee to be reasonable if the

fee did not exceed the lesser of twenty percent (20%) of the award to the injured worker

or ten thousand dollars ($10,000).” But, if the employee’s attorney’s fee in such case

exceeded $10,000, it was necessary for a court having jurisdiction to “review such case

solely for the purpose of approving such fees as are reasonable.” Id. at § 17(a)(2)(B).

Further, in cases that proceeded to trial, the employee’s attorney was required to file an

application with the court for approval of a proposed attorney’s fee, and, in those cases

that proceeded to trial in which the injured employee’s attorney’s fee exceeded $10,000,

the court was required to make specific findings as to the factors that justified the fee “as

provided in DR 2-106 of Rule 8 of the Rules of the Supreme Court.” Id. at § 17(a)(2)(C);

see also Tenn. Code Ann. § 50-6-226(a)(1)(C) (1997).

2

As provided in the 1996 Act, only the “department” was required to deem

attorney’s fees to be reasonable, and only if such fees did not exceed the lesser of

$10,000 or twenty percent of the injured employee’s recovery or award. “Department”

was not defined in the workers’ compensation law until 1999 when section 50-6-102 was

amended to define “Department” to mean “the department of labor and workforce

development.” Acts 1999, ch. 520 § 41. Following the 1996 Act, if the attorney’s fees

charged to an injured employee exceeded $10,000, it was necessary “for any court with

jurisdiction . . . [to] review such case solely for the purpose of approving such fees as are

reasonable.” Id. at § 17(a)(2)(B); see also Tenn. Code Ann. § 50-6-226(a)(2)(B) (1997).

The parties in this appeal have not cited legislative history addressing whether the

requirement for the Commissioner to deem attorney’s fees in a proposed settlement to be

reasonable was intended to avoid non-attorneys reviewing the reasonableness of

attorney’s fees, and the judges of the Appeals Board are not aware of any such history.

Section 50-6-226(a)(2)(B) was further modified in 2007 to delete the provision

requiring the department to deem the attorney’s fee to be reasonable if the fee did not

exceed “the lesser of twenty percent (20%) of the award to the injured worker or ten

thousand dollars ($10,000).” Instead, the 2007 amendment required the department to

deem the attorney’s fees charged to employees to be reasonable so long as the fees did

not exceed 20% of the recovery or award to the injured worker. See Acts 2007, ch. 300 §

2; Tenn. Code Ann. § 50-6-226(a)(2)(B) (2008). In addition, addressing attorney’s fees

in cases of permanent total disability, the 2007 amendment required the department to

deem the attorney’s fee to be reasonable if the fee did not exceed “twenty percent (20%)

2 In 2003, section 50-6-226(a)(2)(C) was amended to substitute “Tennessee Supreme Court Rule 8, RPC 

1.5” for “DR 2-106 of Rule 8 of the Rules of the Supreme Court.” Acts 2003, ch. 112 § 4.
5

of the first four hundred (400) weeks of the award.” Finally, the 2007 amendment

deleted the last sentence of section 50-6-226(a)(2)(B) that required a court to review,

“solely for the purpose of approving such fees as are reasonable,” the attorney’s fees in

any case in which the fees exceeded $10,000. See Tenn. Code Ann. § 50-6-226(a)(2)(B)

(2008).

Following the effective date of the 2007 amendments, section 50-6-226(a)(1)

provided that “[t]he fees of attorneys for services to employees . . . [were] subject to the

approval of the commissioner or court before which the matter is pending, as appropriate;

provided, that no attorney’s fees to be charged employees shall be in excess of twenty

percent (20%) of the amount of the recovery or award . . . .” Tenn. Code Ann. § 50-6-

226(a)(1) (2008). In addition, this section provided that “[a]ll attorney’s fees for

attorneys representing employers [were] subject to review for reasonableness of the fee

and [were] subject to approval by a court when the fee exceeds ten thousand dollars

($10,000).” Tenn. Code Ann. § 50-6-226(a)(1) (2008) (emphasis added). Subsection 50-

6-226(a)(2)(B) continued to require the “department” to deem the attorney’s fee to be

reasonable in cases submitted to the department for approval that were resolved prior to

trial or in a benefit review conference so long as the fee did not exceed the 20% ceiling.

Further, section 50-6-226(a)(2)(C) continued the requirement that “[f]or cases that

proceed to trial, an employee’s attorney shall file an application for approval of a

proposed attorney’s fee,” and where the award of an attorney’s fee exceeded ten thousand

dollars, the court was required to “make specific findings as to the factors that justify the

fee as provided in Tennessee Supreme Court Rule 8, RPC 1.5.” Tenn. Code Ann. § 50-6-

226(a)(2)(C) (2008).

The Workers’ Compensation Reform Act of 2013

The Workers’ Compensation Reform Act of 2013 brought more changes to the

workers’ compensation system in Tennessee for injuries occurring after June 30, 2014.

Chapter 289 of the 2013 Acts amended Tennessee Code Annotated section 4-3-1408 to

identify the Bureau of Workers’ Compensation as “a separate administrative entity for

programs, personnel, and budgets,” and it placed the supervision of the Bureau in the

administrator of the Bureau. Acts 2013, ch. 289 § 1. See also Tenn. Code Ann. § 4-3-

1408(b), 1409(b)(1) (2014). As previously noted, the Bureau became “an autonomous

unit that shall be attached to the department of labor and workforce development for

administrative matters only.” Acts 2013, ch. 289 § 2(a). See also Tenn. Code Ann. § 4-

3-1409(a) (2014) (emphasis added).

3

3 As previously noted, the administrative entity was identified in the Workers’ Compensation Reform Act

of 2013 as the “Division of Workers’ Compensation,” and the name was changed to the “Bureau of 

Workers’ Compensation” in 2015. See Acts 2015, ch. 341 § 16.
6

The 2013 Act created the Court of Workers’ Compensation Claims to perform

“the adjudicative function within the [bureau] of workers’ compensation.” Acts 2013, ch.

289 § 9. See also Tenn. Code Ann. § 50-6-102(8) (2014). The court was given “original

and exclusive jurisdiction over all contested claims for workers’ compensation benefits

when the date of the alleged injury is on or after July 1, 2014.” Tenn. Code Ann. § 50-6-

237 (2014). Judges of the court were required to be “Tennessee licensed attorneys in

good standing with at least five (5) years experience in workers’ compensation matters.”

Acts 2013, ch. 289 § 79. See also Tenn. Code Ann. § 50-6-238(a)(1) (2014). Judges

were given “the duty . . . to hear and determine claims for compensation, to approve

settlements of claims for compensation, to conduct hearings, and to make orders,

decisions, and determinations.” Tenn. Code Ann. § 50-6-238(a)(3) (2014).

As concerns attorney’s fees, the 2013 Act amended section 50-6-226(a)(1) to

delete any reference to the “commissioner” of the Department of Labor and Workforce

Development having the authority to approve “the fees of attorneys for services to

employees.” See Acts 2013, ch. 289 § 61. Instead, the 2013 Act provided that the fees

were “subject to the approval of the workers’ compensation judge before which the

matter is pending, as appropriate.” Id. See also Tenn. Code Ann. § 50-6-226(a)(1)

(2014). In addition, section 50-6-226(a)(2)(B) was deleted by the 2013 Act, but, as the

majority notes, part of the statute was retained and moved to subsection 50-6-226(a)(1)

and serves as the basis for the majority’s decision.

In the instant case, the attorney for the surviving spouse argues on appeal that, in

the 2013 Reform Act, the legislature “thought it was appropriate to limit the trial court’s

discretion on the approval of contingent attorney fees,” and counsel speculates as to why

the legislature might have thought it appropriate to limit the discretion of the judges of

the Court of Workers’ Compensation Claims. However, no authority was cited and

neither the majority nor I have located legislative history addressing whether the

legislature intended to limit the discretion of a workers’ compensation judge by

mandating the judges “deem the attorney’s fee to be reasonable if the fee does not exceed

twenty percent (20%).” Indeed, it would have been a simple matter for the legislature to

say so. It would have avoided the present ambiguity had the statute stated that “[t]he

workers’ compensation judge shall deem the attorney’s fee to be reasonable . . .,” if that

was the legislature’s intent. The Act clearly expresses the legislature’s intent that the

judges of the Court of Workers’ Compensation Claims are to perform “the adjudicative

function within the [bureau] of workers’ compensation.” Tenn. Code Ann. § 50-6-102(9)

(2019). The 2013 Act, as amended, made the Bureau “an autonomous unit that shall be

attached to the department of labor and workforce development for administrative

matters only.” Irrespective that the majority finds “a clear statutory link between the

Court of Workers’ Compensation Claims and the phrase ‘the department,’” it is my

conclusion the “department,” as used in section 50-6-226(a)(1) (2019), does not include

the judges of the Court of Workers’ Compensation Claims.
7

Further, I see the issue in this case to be whether the trial court abused its

discretion in awarding an attorney’s fee of $17,421.41, or 7.5% of the increased benefits.

A trial court’s award of attorney’s fees is discretionary, and an appellate court’s review of

such a decision applies an “abuse of discretion” standard of review. Grissom v. United

Parcel Service, Inc., No. M2016-00127-SC-R3-WC, 2017 Tenn. LEXIS 4, at *7 (Tenn. 

Workers’ Comp. Panel Jan. 9, 2017).

The Tennessee Supreme Court has consistently referred to the ten factors set forth

in Tennessee Supreme Court Rule 8, Rules of Professional Conduct 1.5(a) as the standard

for determining the reasonableness of attorney’s fees. See Wright ex rel. Wright v.

Wright, 337 S.W.3d 166, 169-170 (Tenn. 2011); Denison v. VIP Home Nursing & Rehab.

Serv., LLC, 2020 Tenn. LEXIS 272 (Tenn. Workers’ Comp. Panel June 19, 2020).

Section 50-6-226(a)(2)(C) (2019) requires workers’ compensation judges to “make

specific findings as to the factors that justify the fee as provided in Tennessee Supreme

Court Rule 8, RPC 1.5.” However, this statute is not applicable in this case because the

case did not proceed to trial. Requiring a workers’ compensation judge to make those

findings in cases that proceed to trial does not foreclose a judge from considering those

factors when determining the reasonableness of attorney’s fees in cases that do not

proceed to trial. Indeed, the Supreme Court Special Workers’ Compensation Appeals

Panel has applied those factors in instances in which the workers’ compensation statutes

did not mandate their applicability. See Grissom, 2017 Tenn. LEXIS 4, at *5-6 (“The

statute does not set out any specific factors to be considered by a trial court [when

making an award of attorney’s fees arising from an employer’s refusal to provide medical

care required by a settlement or judgment]. A recent decision of our Supreme Court

provides us with some guidance, albeit in the context of a minor’s settlement.” (Citing

Wright ex. Rel. Wright, 337 S.W.3d at 169-70.)).

The majority has foreclosed not only application of these factors in a workers’

compensation case that does not proceed to trial, but any review by a judge of the

attorney’s fees charged an employee beyond determining whether the fees exceed 20% of

the recovery or award. The Tennessee Supreme Court declared nearly thirty years ago

that “the 20 percent ceiling set out in the statute is a maximum, which may or may not be

reasonable depending on the circumstances of the case.” Perdue v. Green Branch Mining

Co., 837 S.W.2d 56 (Tenn. 1992). See also Sowell v. Christy, No. M2004-02186-COAR3-CV, 2006 Tenn. App. LEXIS 163, at *9 (Tenn. Ct. App. Mar. 8, 2006); McGhee v.

Tots & Teens Pediatrics, No. E2011-02210-WC-R3-WC, 2012 Tenn. LEXIS 748, at *13

(Tenn. Workers’ Comp. Panel Oct. 17, 2012). Under the majority’s holding, had the

attorney for the surviving spouse charged a fee of 20% of the “recovery or award,” rather

than 20% of the difference in the benefits awarded and the benefits available under

Mississippi law, the workers’ compensation judge would have been required to deem

those fees to be reasonable.
8

Section 50-6-226(a)(1) requires “[t]he fees of attorneys for services to

employees . . . [to be] subject to the approval of workers’ compensation judge before

which the matter is pending.” Section 50-6-240 (2019) requires “all settlements [to be]

reduced to writing and . . . approved by a judge of the court of workers’ compensation

claims.” Moreover, it is “the duty of the judge of the court of workers’ compensation

claims to whom any settlement is presented for approval . . . to examine the proposed

settlement to determine whether the employee is receiving, substantially, the benefits

provided by the Workers’ Compensation Act.” Tenn. Code Ann. § 50-6-240(a). Can a

workers’ compensation judge refuse to find that a settlement secures substantially the

benefits to which the injured worker is entitled because the 20% attorney’s fee is

unreasonable or thought by the judge to be unreasonable? Will the majority’s conclusion

effectively require attorneys for injured workers to negotiate the attorney’s fee with the

judge to whom a settlement is presented? In my opinion, ending the one-hundred-year

history of allowing the judge before whom a settlement is pending to review the

reasonableness of the attorney’s fees in cases that do not proceed to trial will have

detrimental consequences to the workers’ compensation law and to employers and

injured employees. The legislature should act to prevent the charging of unreasonable

attorney’s fees for which the majority has opened the door. I would affirm the workers’

compensation judge’s determination that the judges of the Court of Workers’

Compensation Claims “must review the requested fee for reasonableness,” and then turn

to that review.
 

 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

Jamie Henderson, as Surviving Spouse of ) Docket No. 2020-06-1013 

David Joe Turner ) 

) State File No. 44049-2020 

v. ) 

)

Pee Dee Country Enterprises, Inc., et al. ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Kenneth M. Switzer, Chief 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 23rd

day of July, 2021. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Via 

Email

Sent to: 

M. Reed Martz

Penny Robinson

X reed@freelandmartz.com

penny@freelandmartz.com

Lee Anne Murray

Ashley McGee

X leeamurray@feeneymurray.com

ashley@feeneymurray.com

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of 

Workers’ Compensation Claims

X penny.patterson-shrum@tn.gov

 

Olivia Yearwood

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