1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD 

Gregory Pope ) Docket No. 2015-01-0010 

) 

v. ) State File No. 65681-2014 

) 

Nebco of Cleveland Inc., d/b/a ) 

Toyota of Cleveland, et al. ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Thomas Wyatt, Judge ) 

Reversed and Dismissed - Filed November 28, 2016 

This appeal involves a car salesman who injured his knee participating in a recreational 

charity event sponsored in part by his employer, a car dealership. The employer refused 

to pay workers’ compensation benefits on the basis that the salesman’s participation in 

the recreational activity was voluntary and not a part of his work duties. The trial court 

found that the salesman’s injury occurred in the course and scope of his employment and 

ordered the employer to reimburse him for his out-of-pocket expenses and pay the 

medical bills associated with his treatment. The trial court also ruled that the salesman’s 

attorney was entitled to calculate his fee based on the amount of the medical expenses

and out-of-pocket expenses. The employer has appealed, raising two issues: (1) whether 

the evidence preponderates against the trial court’s determination that the salesman’s 

participation in the recreational activity was impliedly required within the meaning of 

Tennessee Code Annotated section 50-6-110(a)(6)(A) and was a part of his work duties 

under Tennessee Code Annotated section 50-6-110(a)(6)(C), and (2) whether the award 

of attorney’s fees was proper. We hold that the trial court erred in finding the salesman’s 

participation in the recreational event was impliedly required by the employer or was a 

part of his work duties, pretermitting our consideration of the attorney’s fees issue. The 

trial court’s decision is reversed and the case is dismissed. The court’s order, as reversed, 

is certified as final. 

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in 

which Judge David F. Hensley and Judge Timothy W. Conner joined. 
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Jennifer Orr Locklin, Nashville, Tennessee, for the employer-appellant, Nebco of 

Cleveland, Inc., d/b/a Toyota of Cleveland 

William J. Brown, Cleveland, Tennessee, for the employee-appellee, Gregory Pope 

Factual and Procedural Background 

Gregory Pope (“Employee”), a fifty-three-year-old resident of Bradley County, 

Tennessee, suffered a serious knee injury on August 16, 2014, while participating in a 

“mud run” charity event sponsored in part by his employer, Nebco of Cleveland, Inc., 

d/b/a Toyota of Cleveland (“Employer”). The mud run, a fundraiser to benefit Habitat 

for Humanity, involved numerous teams competing for the fastest time negotiating an 

obstacle course in the mud. Employee was injured attempting to scale a six-foot wall 

approximately ten minutes into the course. 

Employee’s injury, a left quadriceps tendon rupture, required surgery to repair. 

His personal health insurance paid most of his medical bills, which exceeded $19,000, 

and he incurred out-of-pocket expenses of approximately five hundred dollars. Employer 

denied Employee’s workers’ compensation claim based upon its belief that he had 

voluntarily participated in the event, barring any recovery. Employee responded that his 

participation in the mud run was required and was a part of his work-related duties. 

Although Employee returned to work following his surgery, he was eventually terminated 

for reasons unrelated to his injury. 

Three individuals testified at trial: Dave Mason, a fellow sales consultant and the 

individual tasked with forming the mud run team; Eddie Triplett, Employer’s general 

manager who asked Mr. Mason to form a team; and Employee. Employee testified that 

when he was first approached by Mr. Mason to participate in the mud run, Mr. Mason 

told him that Mr. Triplett had asked him to organize a team for the event. Employee 

declined to participate because the event was on a Saturday morning, which he described 

as a “peak selling time” for sales people. In all, Mr. Mason approached Employee three 

or four times about joining the team and, eventually, Employee agreed to participate 

because he believed “that if [he] bailed at that point because it was so close to the event 

that everyone would have remembered, ‘[o]kay. Greg Pope didn’t do it.’ So it kind of 

put me out there.” Employee was not concerned that any adverse employment action 

would be taken against him if he declined, which he did at least twice before finally 

agreeing to participate. 

Employee also testified that he did not want to be away from the dealership on a 

Saturday, stating that, as a single parent, he “had to think of making money for [his 

family] versus doing [the mud run] and the possibility of getting hurt.” When asked 

whether he was concerned about being disciplined if he refused to participate, he 

testified, “I didn’t think I would [have] been fired if I didn’t do it. I just [thought] that . . . 
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everyone would have realized Greg was the last hope and he didn’t do it. And that would 

have been a let down for the team.”

Employee further testified that he felt participating in the mud run was a workrelated activity because it occurred during working hours – a Saturday morning – and he 

felt it was his duty to help represent the dealership. He also described having attended a 

gathering at the dealership approximately two days prior to the event at which Mr. 

Triplett distributed matching “Captain America” t-shirts and asked the team to dress 

alike.

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 The participants on the team were allowed to drive dealership cars to the event, 

but they were not obligated to stay with the vehicles, attempt to sell any vehicles, or staff 

a tent operated by Employer’s corporate owner. At the beginning of the event, Mr. 

Triplett used his influence as one of the event sponsors to obtain an earlier starting time 

for his team, as the salesmen wanted to return to the dealership so they could sell 

vehicles. It is undisputed that team members were not provided any type of 

compensation to participate.

Employee acknowledged that he had not participated in prior mud runs sponsored 

by Employer. He also acknowledged that no one threatened to take adverse employment 

action against him if he declined to participate.

Mr. Mason, who was Employee’s co-worker and friend, testified that Employer, in 

return for sponsoring the mud run, had been allotted multiple teams to enter in the event. 

He indicated that Mr. Triplett asked him to put together a team, and Mr. Mason 

considered participation to be a work-related activity because it was an opportunity to 

promote the dealership. He stated that because he had seen Employee in the gym and 

knew him to be in good physical condition, he decided to ask Employee to join the team. 

After experiencing difficulty filling the team, he returned to Employee and “did pressure 

him into doing it.” Mr. Mason had no supervisory responsibilities at the dealership. He 

was, like Employee, a sales consultant.

Mr. Mason also testified that he did not tell Employee that participation in the mud 

run was required and that he had not been threatened with any adverse employment 

action had he been unable to get a team together or had he decided not to participate

himself. He stated that, had he been unable to organize a team, he assumed the 

dealership would simply not enter a team or would look for participants elsewhere. He 

further indicated that he had not been instructed to attempt to sell cars at the mud run or 

staff the dealership tent.

 

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It is undisputed that the shirts contained no company logo and did not otherwise associate the team 

members with Employer or its dealership.
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Mr. Triplett, the dealership’s general manager, testified that he believed 

sponsorship of events like the mud run was an important element of being a good 

corporate member of the community. He testified that Employer had sponsored a number 

of community events over the years and, while some employees participated in some of 

those events, participation was never mandatory. While the mud run organizers had 

allotted teams to the dealership in the past, Mr. Triplett had not previously asked that a 

team be organized, giving those entry spots to others who wanted to form a team instead, 

such as specific employees or family members who expressed a desire to participate. In 

the past and at the event in question, the teams fielded from Employer’s allotment were 

not required to wear clothing or engage in any other conduct identifying themselves as 

being associated with Employer. 

In addition, Mr. Triplett testified that he had decided to put together a team on this 

particular occasion because it would be fun and because his children had put “peer 

pressure” on him to enter, telling him he was “too old, too fat, and too slow to do it.” He 

stated, “I’m sitting there with two unclaimed teams. And it’s not that big a deal. Nobody 

would notice if we weren’t there, probably. But I didn’t want them to completely go to 

waste either, and I thought it would be fun.” He stated that, while he believed it would be 

beneficial to have a team entered in the mud run, he did not believe the business would 

suffer if it failed to enter a team.

Finally, Mr. Triplett did not “shame” any employee who declined to participate in 

the mud run and, in fact, was unaware of who had refused to be on the team. He testified 

that he did not consider participation in the event to be a part of the participants’ work 

duties. When asked what, if any, action he would have taken had Employee declined to 

participate, he testified that “short of personal disappointment,” there would have been no 

adverse employment consequences. Mr. Triplett testified that he did not “lean” on 

Employee or anyone else to join the team.

At trial, Employer argued that Employee’s participation on the team was not 

associated with his work duties, as it was a recreational event in which participation was 

purely voluntary. By contrast, Employee took the position that because he was pressured 

into joining the team, participation was a part of his work duties. The trial court agreed, 

concluding that Employee’s participation in the mud run was impliedly required and was 

a part of his work-related duties. The court awarded benefits in the form of 

reimbursement of Employee’s out-of-pocket expenses and payment of the medical bills 

associated with his treatment. The trial court also awarded Employee’s attorney a fee 

based on Employee’s out-of-pocket expenses.

Employee filed a post-trial motion asking the trial court to reconsider the issue of 

attorney’s fees, arguing that the medical expenses associated with treating his injury were

a part of his recovery or award and, thus, his attorney should be entitled to calculate his 

fee on the basis of the medical bills, not just the out-of-pocket expenses. The trial court 
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agreed and awarded Employee’s attorney a fee based on the out-of-pocket expenses as 

well the medical bills Employer was ordered to pay.

Employer has appealed, arguing that the trial court erred in finding Employee’s 

injury to be compensable, as participation in the mud run was not required and was not a 

part of his work duties. Employee responds that his participation was, in fact, required as 

a part of his work-related duties. For the reasons that follow, we reverse the trial court’s 

decision and dismiss the case.

Standard of Review

The standard we apply in reviewing a trial court’s decision is statutorily mandated 

and limited in scope. Specifically, “[t]here shall be a presumption that the findings and 

conclusions of the workers’ compensation judge are correct, unless the preponderance of 

the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s 

decision may be reversed or modified if the rights of a party “have been prejudiced 

because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

(A) Violate constitutional or statutory provisions;

(B) Exceed the statutory authority of the workers’ compensation judge;

(C) Do not comply with lawful procedure;

(D) Are arbitrary, capricious, characterized by abuse of discretion, or 

clearly an unwarranted exercise of discretion; or

(E) Are not supported by evidence that is both substantial and material 

in the light of the entire record.”

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

Analysis

A.

It has long been the general rule in Tennessee that injuries sustained while an 

employee is voluntarily engaged in a recreational activity are not compensable as workrelated accidents. Indeed, as far back as 1932, the Tennessee Supreme Court observed 

that “where an employe[e] departs from his work to engage in a sportive act that is in 

nowise connected with his employment, or incidental thereto, he cannot recover for an 

injury resulting from such act.” Hawkins v. Nat’l Life & Accident Ins. Co., 46 S.W.2d 55, 

56 (Tenn. 1932).

More recently, our Supreme Court was confronted with a case involving an 

employee who drowned while boating on his lunch break. Jordan v. United Methodist 

Urban Ministries, Inc., 740 S.W.2d 411 (Tenn. 1987). The employee and other workers 
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were being trained in construction work and were allowed to eat their lunch by a lake a 

short distance away from their worksite. Id. at 412. The workers found a boat and rowed 

it out onto the lake. Id. The employee jumped from the boat to swim to shore and 

drowned. The Supreme Court concluded that the employee’s conduct “constituted a 

complete departure from the scope and course of [the] employment.” Id. Accordingly, 

death benefits were denied. Id.

Shortly after Jordan was decided, the Supreme Court again addressed recovery for 

injuries sustained while engaged in recreational activities. In Ward v. Mid-South Home 

Serv., 769 S.W.2d 486 (Tenn. 1989), the employee, a construction worker, suffered an 

injury playing basketball at a customer’s home during a lull in the work. Denying his 

claim for benefits, the Supreme Court noted that “compensation has been awarded only 

when recreational or social activities are shown to be a regular incident of the 

employment or under circumstances where the employer requires participation or 

otherwise derives some substantial direct benefit from the activity.” Id. at 487. Because 

the recreational activity in which the injured worker was engaged was “purely for [his] 

own entertainment and amusement,” he was not within the course and scope of his 

employment when he was injured and, therefore, was not entitled to recover workers’ 

compensation benefits. Id.

In still another case, Tucker v. Acme Boot Co., 856 S.W.2d 703 (Tenn. Workers’ 

Comp. Panel 1993), the Special Workers’ Compensation Appeals Panel was faced with a 

situation in which, unlike the employees in Jordan and Ward who were injured during 

their working hours, the employee was injured while participating on a softball team 

organized by a co-worker. Employees were not required to participate, and the employer 

did not expressly sponsor the team. Id. at 704. However, the employer encouraged 

employees to participate, paying the team’s league entry fee, paying a lighting fee for 

practices, providing equipment and shirts displaying the employer’s logo, and awarding 

“aerobic bucks” to employees who participated, which could be exchanged for prizes. Id. 

The Court in Tucker followed the analysis in Jordan and Ward and adopted the following 

test to determine whether an injury sustained while participating in a recreational activity 

is compensable:

[R]ecreational or social activities are within the course of employment 

when (1) they occur on the premises during a lunch or recreational period 

as a regular incident of the employment, or (2) the employer, by expressly 

or impliedly requiring participation, or by making the activity part of the 

services of the employee, brings the activity within the orbit of the 

employment, or (3) the employer derives substantial direct benefit from the 

activity beyond the intangible value of improvement in employee health 

and morale that is common to all kinds of recreation and social life.
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Id. at 705. The Panel in Tucker determined that the employee’s injury was not made 

compensable by either of the first two factors, as the injury did not occur on the 

employer’s premises and participation in the softball league was not required. Id. 

Furthermore, the Panel concluded that the employee’s participation was not of a nature to 

provide a benefit to the employer beyond the benefits inherent in any “refreshing social 

and recreational” activity. Id.

Subsequently, the test adopted in Tucker was applied in a case in which the 

employee was injured at a car race sponsored by the employer. In Cameron v. Fireman’s 

Fund Ins. Co., No. E1998-00678-WC-R3-CV, 2000 Tenn. LEXIS 725, at *2 (Tenn. 

Workers’ Comp. Panel Dec. 15, 2000), the employer held a “race night” several days in 

advance of the race and required some employees to attend and perform certain functions, 

although the employee who was injured had no duties at the actual race where she was 

injured. Id. at *3-4. The Panel concluded that none of the factors enumerated in Tucker

brought the employee’s claim within the ambit of workers’ compensation. Id. at *9-10. 

The injury did not occur on the employer’s premises, attendance at the race was not 

required, and there was no evidence the employer received a benefit from the employee’s 

participation. Id. Hence, the employee was not entitled to a recovery.

In yet another recreational activity case, Young v. Taylor-White, PLLC, 181 

S.W.3d 324 (Tenn. 2005), the Supreme Court considered whether an employee who was 

injured participating in a three-legged race at a company picnic could recover workers’ 

compensation benefits. The picnic was held outside of normal work hours at a public 

park. Id. at 326. Although employees had to sign up to attend the picnic and check in 

upon arrival, attendance was not required. Id. at 327. There were no negative 

consequences for not attending, and no one was paid to attend. Id. In its analysis of the 

case, the Supreme Court noted that “the voluntary nature of the activity, rather than the 

fact that the activity occurs on the employer’s premises or provided a benefit to the 

employer, is the touchstone for determining whether the injury occurred during the 

course of employment.” Id. at 329. The Court determined that, although others 

encouraged the employee to participate in the three-legged race, her participation in the 

race was voluntary. Thus, an award of benefits was reversed.

Finally, in 2007, the Supreme Court again considered the parameters of 

compensable injuries in the context of recreational activities. In Gooden v. Coors Tech. 

Ceramic Co., 236 S.W.3d 151 (Tenn. 2007), the employee suffered a fatal heart attack 

playing basketball during a regular work break. Id. at 153. There was no dispute that 

playing basketball contributed to the employee’s heart attack or that supervisors 

occasionally joined employees playing basketball. Id. at 154. The trial court denied 

benefits, finding the employee had pre-existing heart disease and that the injury did not 

arise out of the employment. The Supreme Court reconsidered its identification of the 

voluntary nature of the employee’s activity as the “touchstone” of the analysis, observing 

that it was “not a judicious use of the term” and that “[e]levating this factor above all 
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others would be a clear departure from our traditional emphasis on ‘the time, place, and 

circumstances of the injury.’” Id. at 155. Addressing the circumstances surrounding the 

employee’s death, the Court held that the employer’s “acquiescence combined with the 

regularity of the basketball games made the games an incident of [the employee’s]

employment.” Id. at 156.

Against this extensive backdrop of case law, the General Assembly, in 2009, 

adopted Tennessee Code Annotated section 50-6-110(a)(6), which was unchanged by the 

2013 Workers’ Compensation Reform Act. In keeping with the long-held view that 

injuries resulting from “refreshing social and recreational” activities are generally not 

compensable, Tucker, 856 S.W.2d at 705, the statute declares that an injury is not 

compensable if it occurs as a result of “[t]he employee’s voluntary participation in 

recreational, social, athletic or exercise activities, including, but not limited to, athletic 

events, competitions, parties, picnics, or exercise programs, whether or not the employer 

pays some or all of the costs of the activities.” Tenn. Code Ann. § 50-6-110(a)(6). 

However, benefits may be awarded if the activity falls into one or more of the following

exceptions:

(A) Participation was expressly or impliedly required by the employer;

(B) Participation produced a direct benefit to the employer beyond 

improvement in employee health and morale;

(C) Participation was during employee’s work hours and was part of the 

employee’s work-related duties; or

(D) The injury occurred due to an unsafe condition during the voluntary 

participation using facilities designated by, furnished by or 

maintained by the employer on or off the employer’s premises and 

the employer had actual knowledge of the unsafe condition and 

failed to curtail the activity or program or cure the unsafe condition.

Id. The statute further provides that if an employer “defends on the ground that the injury 

arose in any or all of the ways stated in subsection (a),” which includes a number of 

defenses in addition to the recreational activity defense, “the burden of proof shall be on 

the employer to establish the defense.” Tenn. Code Ann. § 50-6-110(b).2

 

2 While the statute is clear that the burden of establishing the defense set out in section 50-6-110(a)(6) lies 

with the employer, it is less clear who bears the burden of proving the existence or absence of the 

exceptions set out in subsections (A)-(D). Employer takes the position that an employee must establish

any applicable exception before an employer is obligated to present proof that any such exception does 

not apply. Employee, on the other hand, asserts an employer bears the burden of disproving each 

exception and that an employee bears no burden of proof once an employer asserts the defense. While we 

acknowledge the statute can be interpreted in different ways, we need not resolve this issue in the present 
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B.

Guided by the foregoing principles, we return to the facts of this case. The trial 

court concluded that Tennessee Code Annotated section 50-6-110(a)(6)(A) and (C)

applied, finding that Employee was impliedly required to participate in the mud run and 

that it was a part of his job duties. According to the trial court, Employee’s “work

assignment was to participate in the mud run.” We disagree.

 Participation Impliedly Required

With respect to whether Employee’s participation in the mud run was “impliedly 

required” within the meaning of section 50-6-110(a)(6)(A), the proof is uncontradicted 

that Employee would not have faced any adverse employment consequences if he 

declined to participate. Mr. Mason, the salesman tasked with assembling the team, 

testified that he asked Employee to be on the team because Employee was in good 

physical condition and “enjoyed that kind of thing.” According to Mr. Mason, Mr. 

Triplett never told him that participation was required and he, in turn, never told 

Employee that participation was a part of his job duties. In fact, when Mr. Mason 

experienced difficulty filling the team, he told Employee that Employee was “our last 

choice and I need you to do it if you can.” If Employee had been required to participate, 

there would have been no need for Mr. Mason to ask him to join the team several times, 

and only then “if [he] can.”

We also note that Mr. Mason was Employee’s friend and co-worker, not his 

supervisor, undercutting any implication Employer coerced Employee to participate. 

While Mr. Mason did pressure Employee to participate, he did so because it would be 

“fun” and they would be able to “get out of work for a few hours.” He never told 

Employee participation was required. Mr. Mason did not believe anyone would have 

suffered negative consequences for declining to participate. Further, Mr. Triplett never 

suggested to Mr. Mason that he or anyone else would suffer adverse consequences if he 

did not put together a team.

For his part, Mr. Triplett, the general manager of the dealership, testified that he 

believed entering a team in the mud run would be “fun,” that participation was “definitely 

voluntary,” and that he would not and did not take any adverse employment action 

against anyone who declined to participate. In fact, he did not know who was being 

asked to participate or who declined to do so, and he did not “shame” or discipline 

anyone for not participating. Moreover, Mr. Triplett did not consider participation to be a 

part of Employee’s job duties, and he did not “lean” on Employee or anyone else to 

participate. This evidence was undisputed.

 

appeal because, regardless of whether the statute contemplates a shifting burden of proof, the evidence 

preponderates against the trial court’s finding of compensability.
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Employee himself acknowledged that he did not believe any negative employment 

action would be taken against him if he declined to be on the team, and that the only 

adverse effect of a refusal to participate would be disappointing Mr. Triplett and the rest 

of the mud run team. He testified that he viewed Mr. Triplett as a “father figure” and did 

not want to let him down. However, while he stated he felt pressured to participate, he 

did not fear any negative consequences to his job had he declined to participate. Nor was 

he told by anyone that he was obligated to participate.

Employee also acknowledged that the reason he was asked to join the team was 

because he was physically fit and Mr. Mason needed someone who could complete the 

course. Other dealership employees declined to participate and suffered no adverse 

employment actions. According to Employee, no one was “shamed,” “fired,” or “in any 

way disciplined” for failing to participate so far as he knew. Although Employee may 

have felt peer pressure to participate, such pressure is an inherent part of most 

competitive events of this nature. Whether Employee felt peer pressure to participate is 

not the determinative issue. Rather, the question is whether pressure was applied by the 

employer amounting to an express or implied requirement to participate. Based on this 

record, it did not.

Furthermore, while Employer was associated with a vendor tent at the event, the 

evidence was unrefuted that no employees were required to staff the tent. Also, the team 

did not wear any clothing identifying them as being associated with Employer. In 

addition, Employee was not on the clock while at the event, and Mr. Triplett used his 

influence to obtain an earlier start time so the employees could get back to the dealership 

and work. The proof was unrefuted that no employee was paid to participate and there 

were no prizes or incentives to do so. 

Considering these circumstances as a whole, we conclude that the evidence does 

not support the trial court’s finding that Employee’s participation in the mud run was 

“impliedly required” within the meaning of section 50-6-110(a)(6)(A). 

 Part of Employee’s Work-Related Duties

The trial court also found that section 50-6-110(a)(6)(C) applied, determining that 

participation in the mud run occurred during working hours and was a part of Employee’s 

work duties. This finding is likewise not supported by the weight of the evidence. 

While it is undisputed that the mud run occurred during normal working hours, a 

Saturday morning, the record is devoid of evidence to support a finding that it was part of 

Employee’s work duties. Employee was not paid for his time away from the dealership 

to participate in the event, which was one of his central reasons for initially declining to 

be on the team. He was not required to attempt to sell vehicles or network, was not 

required to staff Employer’s tent, and did not wear any clothing to identify him as an 
11

employee of Employer. Employee did not identify any work duty he was expected to 

perform at the mud run. Instead, he merely expressed his opinion that participation was 

part of his work duties and that he was there in a representative capacity. However, it is 

unclear how he could have been representing Employer, as it was not readily apparent to 

anyone attending the event that he worked for Employer.

In short, the preponderance of the evidence establishes that Employee’s 

participation in the mud run, while perhaps the product of peer pressure, was in no way 

required by Employer. The proof is clear and uncontradicted that, had Employee refused 

to participate altogether, he would have faced no adverse employment consequences. 

Moreover, there is no evidence that Employee was performing any work duties while at 

the mud run. In fact, the proof is to the contrary, as Employee did not staff Employer’s 

tent, did not wear anything to identify him as an employee of Employer, and he wanted to 

complete the course quickly so he could get to work. Accordingly, the trial court’s 

decision is reversed.

C.

The second issue presented for our review concerns the trial court’s decision 

regarding attorney’s fees. Initially, the trial court declined to award attorney’s fees based 

on the amount of medical expenses Employer was required to pay, more than $19,000

and, instead, awarded fees based only on Employee’s out-of-pocket expenses of

approximately five hundred dollars. However, upon reconsideration, the trial court 

determined Employee’s attorney was entitled to a fee based upon both the out-of-pocket 

expenses and the medical bills Employer was ordered to pay.

Employer asserts that the pertinent statute, Tennessee Code Annotated section 50-

6-226, does not contemplate including the cost of medical care in the calculation of 

attorney’s fees.3Employer maintains that recent changes to this statute, which were not 

in effect on the date of the injury in this case, contemplate such payments and that, had 

the legislature intended an employee’s attorney recover a fee on the basis of medical 

expenses, such an amendment would have been unnecessary.4 Employee responds that, 

in a case such as this where all benefits were denied, the medical expenses are properly 

 

3

See Tenn. Code Ann. § 50-6-226(a)(2)(A) (2015) (“Medical 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 fees.”).

4 Tennessee Code Annotated section 50-6-226(d)(1)(B) provides that the trial court may award reasonable 

attorney’s fees and costs when an employer “[w]rongfully denies a claim by filing a timely notice of 

denial, or fails to timely initiate any of the benefits to which the employee is entitled under this chapter, 

including medical benefits under § 50-6-204 or temporary or permanent disability benefits under § 50-6-

207, if the workers’ compensation judge makes a finding that such benefits were owed at an expedited 

hearing or compensation hearing.” Although referenced by the parties in their briefs and at oral 

argument, this statute applies only to claims for injuries occurring on or after July 1, 2016.
12

considered part of an employee’s award and, thus, his attorney is entitled to fees 

associated with the payment of those benefits. See Tenn. Code Ann. § 50-6-226(a)(1) 

(“[N]o 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 [Bureau of Worker’s Compensation] 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 . . . .”) (Emphasis added.).

However, because we have determined that the trial court erred in finding 

Employee suffered a compensable injury, the issue of whether the trial court properly 

calculated attorney’s fees is pretermitted. 

Conclusion

For the foregoing reasons, we hold that the evidence preponderates against the 

trial court’s decision and violates section 50-6-217(a)(3)(A) and (E). Accordingly, the 

trial court’s decision is reversed and the case is dismissed. The trial court’s order, as 

reversed, is certified as final.5

5

See Tenn. Code Ann. § 50-6-217(a)(2)(B) (2015) (“If a compensation order is timely appealed to the 

appeals board, the order issued by the workers’ compensation judge shall not become final . . . until the 

workers’ compensation appeals board issues a written decision certifying the order as a final order.”).
 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD 

Gregory E. Pope ) Docket No. 2015-01-0010

)

v. ) 

) State File No. 65681-2014

Nebco of Cleveland, Inc., d/b/a ) 

Toyota of Cleveland, et al. ) 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Appeals Board’s decision in the 

referenced case was sent to the following recipients by the following methods of service 

on this the 28th day of November, 2016.

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Email Address

William J. Brown X wjb@vollaw.com

Jennifer Orr Locklin X jennifer.locklin@farrar-bates.com

Thomas Wyatt, Judge X Via Electronic Mail

Kenneth M. Switzer, 

Chief Judge

X Via Electronic Mail

Penny Shrum, Clerk, 

Court of Workers’ 

Compensation Claims

X Penny.Patterson-Shrum@tn.gov

Matthew Salyer

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243

Telephone: 615-253-1606 

Electronic Mail: Matthew.Salyer@tn.gov