1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

John A. Earheart, Jr. ) Docket No. 2019-06-1297

)

v. ) State File No. 52124-2018

)

Central Transport, Inc., et al. )

)

)

Appeal from the Court of Workers’ ) Heard January 27, 2023

Compensation Claims ) in Nashville, Tennessee

Kenneth M. Switzer, Chief Judge )

Affirmed and Certified as Final

In this appeal of the trial court’s compensation order awarding attorneys’ fees and costs,

the employer contends the award is improper under the statute. Following a compensable 

injury, the employer terminated the employee, asserting the termination was for cause. The 

employee sought temporary disability benefits, which resulted in extensive discovery. 

Shortly before the expedited hearing, the employer agreed to pay the requested benefits

and an associated twenty-five percent penalty. At that time, the parties reserved the issue 

of the employee’s attorneys’ fees and the reimbursement of costs for trial. Ultimately, the 

parties agreed to settle the claim, and the sole issue at trial was whether the employee’s 

attorney was entitled to attorneys’ fees for his work in obtaining the temporary benefits.

After conducting a hearing, the court determined the employer wrongfully failed to initiate 

benefits and ordered the payment of attorneys’ fees and costs. The employer has appealed. 

Having carefully reviewed the record, we affirm the trial court’s decision and certify it as 

final.

Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which Presiding 

Judge Timothy W. Conner and Judge Pele I. Godkin joined.

Richard R. Clark, Jr., Nashville, Tennessee, for the employer-appellant, Central Transport, 

Inc.

D. Andrew Saulters, Nashville, Tennessee, for the employee-appellee, John A. Earhart, Jr.

FILED

Feb 14, 2023

01:32 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
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Factual and Procedural Background

John A. Earhart, Jr. (“Employee”) began working for Vitrain Express in 2011 as a 

delivery driver. That company was eventually acquired by Central Transport

(“Employer”), and Employee continued to work there in the same capacity. On August 15, 

2016, Employee was making a delivery in the course and scope of his employment when 

he slipped and fell on his right leg. Employer provided a panel, and Employee selected Dr. 

Thomas Byrd, who diagnosed a torn labrum. Dr. Byrd performed surgery in April of 2017 

and took Employee completely out of work, during which time he received temporary total 

disability benefits.

In March of 2018, Dr. Byrd released Employee to restricted work, and Employer 

returned Employee to work in the office at the terminal. In June of 2018, Employee had a 

follow-up visit with Dr. Byrd, at which time he complained of radiating pain from his right 

heel to his back. Dr. Byrd recommended Employee see a neurologist. Employer did not 

provide a panel and did not schedule a return appointment with Dr. Byrd after that June 

appointment.

In July 2018, Employer removed Employee from his light duty work in the terminal 

office and assigned him to work at Fifty Forward, a senior center. Employer then scheduled 

a medical exam with Dr. Malcom Baxter. Dr. Baxter saw Employee on October 25, 2018, 

and opined that Employee’s back and heel pain was “more likely than not greater than 51% 

due to the injury and subsequent surgery.” He also recommended a lumbar MRI. Despite 

these recommendations, Dr. Baxter placed Employee at maximum medical improvement.

Based on this report, the workers’ compensation adjuster, Mike Gehringer, contacted 

Employee on December 18, 2018, and advised him that he had been released and to report 

to Employer for work. According to the record, there was no route or assignment available 

to Employee at his local terminal on that date; further, based on the record, it appears 

Employer did not have written confirmation that Employee’s restrictions were lifted. As 

such, Employee took three days of approved personal leave in order to allow more time for

Employer to resolve the issues regarding his return to work.

Following his leave and the Christmas holiday, Employee returned to work on 

December 26, 2018. He was unable to clock in because he had not been returned to “active 

duty” within the computer system used by Employer. Employee left work, and, a few days 

later, received correspondence from Employer stating he had been terminated for three 

days of “no call/no show” beginning December 13. Employee testified and timecards 

establish that Employee worked at Fifty Forward on December 13, 14, 17, and 18, 2018.

Following his termination, Employee sought medical treatment on his own and filed 

a petition for benefit determination for medical treatment in July 2019. Employee 

requested another appointment with Dr. Byrd and a panel for treatment of his back

complaints. Although Employer offered a panel from which Employee selected a doctor, 
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an appointment was never scheduled. Meanwhile, Dr. Byrd placed him at maximum 

medical improvement on December 9, 2019, for his hip injury, although he did not see him 

on that date. Employee requested a hearing regarding his petition for medical benefits and 

asked that a decision be made on the record. On October 21, 2020, the trial court ordered 

Employer to provide panels of specialists for both the hip and back and referred the case 

to the Compliance Program. That order was not appealed.

Employer provided the panels, and Employee selected Dr. Richard Matthews for 

treatment of his back; Employee chose to return to Dr. Byrd for continued treatment of 

his hip rather than start treatment with a new physician. On January 21, 2021, Employee 

filed another petition for benefit determination seeking temporary disability benefits for 

the time period of December 18, 2018 to August 3, 2019, the date on which he obtained 

new employment. By that time, several depositions had been conducted and even more 

were scheduled in a pending federal case Employee had filed for retaliatory discharge. 

These included depositions of the adjuster, Michael Gehringer; Employer’s corporate 

representative, Dean Kuska; four other employees of Employer; and Dr. Byrd, who was 

deposed twice on video. A hearing was set for May 13, 2021, to address Employee’s 

request for temporary disability benefits, but the day prior to the hearing, Employer 

agreed to pay the requested benefits. The parties announced the agreement in court the 

following day, and Employer also agreed to pay the requested twenty-five percent

penalty. The issue of attorneys’ fees under Tennessee Code Annotated section 50-6-

226(d)(1) was reserved for the compensation hearing. The trial court issued an order 

memorializing the parties’ agreement, with the order specifically stating that Employee’s 

“lawyer agreed to reserve his request for attorneys’ fees for the compensation hearing. In 

light of these agreements, an evidentiary hearing did not take place.”

Ultimately, Employee was released by both physicians with an anatomical 

impairment rating to the body as a whole of 2% for his hip from Dr. Byrd and 2% for his 

back from Dr. Matthews. The parties agreed to the impairment ratings but disputed

whether Employee was entitled to increased benefits under Tennessee Code Annotated 

section 50-6-207(3)(B), as well as the reserved issues of attorneys’ fees. Employer agreed 

to pay the increased benefits the morning of the compensation hearing on September 6, 

2022, and thus the only issue that remained was whether Employee’s attorney was entitled 

to fees and costs.

At the compensation hearing, Employee testified to the sequence of events 

regarding his termination from Employer. Employee presented the deposition of Dr. Byrd 

regarding his work restrictions, that those restrictions were still in place as of the time of

his termination in December 2018, as well as proof that those restrictions were sent to Mr. 

Gehringer. Employee also filed the other depositions taken in the wrongful termination 
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case as further evidence of the timing and circumstances of the termination.

1 Employee’s 

counsel sought $50,505.50 in attorneys’ fees and costs, supported by his affidavit and 

timekeeping records, as well as invoices for his costs. Employer offered no proof at the 

hearing regarding the substance of Employee’s underlying workers’ compensation claim 

or the benefits to which he may be entitled. Rather, Employer argued the attorneys’ fees 

and costs were not recoverable because the benefits associated with the request for 

attorneys’ fees had been paid voluntarily and because no hearing had been held at which 

the trial court had determined the benefits were wrongfully denied.

The court found in favor of Employee, stating Employer “wrongfully failed to 

timely pay the temporary total disability benefits to which [Employee] was entitled.” The 

court further stated that Employee’s attorney’s “extensive efforts, including deposing 

numerous lay witnesses and Dr. Byrd, led to [Employer’s] conceding on the eve of trial 

that those benefits were owed.” While the court noted that all of the depositions were 

actually taken in the federal employment case and that counsel for Employer in this case 

was not even present for some of the depositions, it took into account Employee’s counsel’s 

characterization that the issues in both cases were “intimately, intricately intertwined” and 

determined that “it would be impossible to apportion them to one case or the other.” 

Finally, the court declined to accept Employer’s argument that Tennessee Code Annotated 

section 50-6-226(d)(1)(B) was inapplicable because the temporary disability benefits had 

been paid voluntarily, stating that even though the prior order did not make a “finding,” it 

“implicitly did so by explicitly holding the attorneys’ fee issue in abeyance.” Further, 

stated the court, the statute allows for the trial judge to award attorneys’ fees and costs

when it determines benefits have been wrongfully denied at an expedited or compensation 

hearing. The court awarded the full amount of fees and costs requested. Employer has 

appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the court’s 

factual findings are correct unless the preponderance of the evidence is otherwise. See

Tenn. Code Ann. § 50-6-239(c)(7) (2022). When the trial judge has had the opportunity 

to observe a witness’s demeanor and to hear in-court testimony, we give considerable 

deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn., 

Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be 

afforded the trial court’s findings based upon documentary evidence.” Goodman v. 

Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn. 

Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of 

statutes and regulations are questions of law that are reviewed de novo with no presumption 

1 Employer stipulated to the use of two of Employee’s co-workers’ discovery depositions at trial. There is 

no indication in the record of any objection to the use of any of the other discovery depositions that were 

filed. All of the depositions had been taken in the pending retaliatory discharge case in federal court, and, 

of those depositions, only one was not filed in the workers’ compensation case.
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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 (2022).

Analysis

Employer raises two issues on appeal, which we restate as follows: (1) whether the 

court can award attorneys’ fees and costs under section 50-6-226(d)(1)(B) if Employer 

agreed to pay the requested benefits prior to the hearing of the matter; and (2) whether the 

court abused its discretion in its award of attorneys’ fees.2

Attorneys’ Fees Under 50-6-226(d)(1)

Tennessee Code Annotated section 50-6-226(d)(1)(B) states that a trial court may 

award reasonable attorneys’ fees and costs when an employer

[w]rongfully denies a claim or wrongfully fails to timely initiate any of the 

benefits to which the employee . . . is entitled . . . including . . . temporary or 

permanent disability benefits . . . if the workers’ compensation judge makes 

a finding that the benefits were owed at an expedited hearing or 

compensation hearing.

The statute defines “wrongfully” in this context as “erroneous, incorrect, or otherwise 

inconsistent with the law or facts.” Id. In interpreting this statutory provision, we have 

previously said that, in order to determine whether a decision was wrongful, the court 

should consider “whether an employer’s decision to deny a claim was erroneous, incorrect,

or otherwise inconsistent with the law or facts at the time the denial decision was made.” 

Andrews v. Yates Servs., No. 2016-05-0854, 2018 TN Wrk. Comp. App. Bd. LEXIS 22, at 

*12 (Tenn. Workers’ Comp. App. Bd. May 8, 2018). This determination can be made at 

an expedited or compensation hearing. We have cautioned in the past, however, against 

“adjudicating disputes concerning attorney’s fees and expenses in piecemeal fashion as the 

case winds its way through the litigation process” and determined that “the better practice 

is to resolve [attorneys’ fees disputes] after the litigation has run its course.” Andrews v. 

Yates Servs., LLC, No. 2016-05-0854, 2017 TN Wrk. Comp. App. Bd. LEXIS 35, at *7-8

(Tenn. Workers’ Comp. App. Bd. May 23, 2017).

2 Employer did not identify the amount of attorneys’ fees or costs awarded by the court as an issue on appeal 

and acknowledged at oral argument that the fees and expenses were reasonable and that the time and rate 

submitted by counsel in his affidavit was appropriate. As such, we need not address whether the award 

complies with Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5 and Tennessee Rule of 

Civil Procedure 54.04.
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In this case, the only issue for determination at the compensation hearing was 

whether Employee’s counsel was entitled to attorneys’ fees due to Employer’s denial of 

temporary total disability benefits from the time of Employee’s termination in December 

2018 to when he obtained new employment in August 2019. An expedited hearing to 

address temporary disability benefits had previously been scheduled but no proof heard, as 

Employer agreed to pay the temporary total disability benefits and a twenty-five percent 

penalty under Tennessee Code Annotated section 50-6-205(b)(3). The parties specifically 

reserved the issue of attorneys’ fees at that time. Employer argues that because it paid the 

benefits voluntarily, the trial court did not make a finding that the benefits were owed. As 

such, according to Employer, there can be no determination of a wrongful denial, and thus, 

the court could not award attorneys’ fees and expenses.

This argument is flawed, however, as the workers’ compensation statutes and case 

law are clear that determinations regarding the wrongful denial or failure to timely initiate 

benefits can be made at either an expedited hearing or a compensation hearing. 

Furthermore, the trial court’s determination of “wrongful” is based on when the denial is 

made, not if or when the employer accepts the claim or agrees to initiate the benefits. We 

disagree with the trial court that its order holding the attorneys’ fees issue in abeyance 

amounted to “an implicit finding.” However, we can find no authority that prohibits the 

court from making a finding that an employer wrongfully denied or timely failed to initiate 

benefits after an employer has agreed to pay the benefits voluntarily. In short, we 

determine that Employer’s agreement to pay the benefits and the penalty did not insulate it 

from a later determination by the trial court that attorneys’ fees and costs are appropriate 

due to a wrongful denial or failure to initiate benefits.

Further, Employer expressly agreed to leave the issue as to whether Employee’s 

attorney was entitled to fees and expenses in abeyance, and as such, any argument that the 

issue was not properly before the court was waived at that time. The agreement is clearly 

outlined in an order of the court from May 2021. Upon receipt of the order, Employer did 

not lodge any objection with the court indicating the statements were incorrect or improper. 

To assess whether the attorney should receive reasonable fees and expenses under 

Tennessee Code Annotated section 50-6-226(b)(1), which was specifically listed in the 

May 2021 order, the court must first assess whether there was a wrongful denial or a failure 

to timely initiate benefits, and the court properly did so at the compensation hearing. As 

such, we affirm the determination of the trial court that the requested benefits were 

wrongfully withheld.

Reasonable Attorneys’ Fees and Costs

Having concluded that section 50-6-226(d)(1)(B) is applicable in these 

circumstances, we turn to whether the trial court erred in awarding attorneys’ fees and costs 

in this case. An award for attorneys’ fees pursuant to Tennessee Code Annotated section 

50-6-226(d)(1) is discretionary and is subject to review under an abuse of discretion
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standard. Andrews, 2018 TN Wrk. Comp. App. Bd. LEXIS 22, at *11-12. A trial court 

abuses its discretion when it causes an injustice by applying an incorrect legal standard, 

reaches an illogical result, resolves the case on a clearly erroneous assessment of the 

evidence, or relies on reasoning that causes an injustice. Gonsewski v. Gonsewski, 350 

S.W.3d 99, 105 (Tenn. 2011). Again, Employer does not contend that the amount awarded 

was erroneous, but that the award itself is “illogical” under the “plain language of the 

statute.” Employer argues the trial court’s award of attorneys’ fees and costs was made as 

a sanction or penalty and not under the factors in section 50-6-226(d)(1).

The court’s determination that Employer wrongfully failed to timely initiate benefits 

was based on its review of the proof before it, as well as the live testimony of Employee. 

There was no evidence in the record to support that Employee had violated a workplace 

rule and the documentary evidence supported that Employee reported to work at all 

scheduled times. In fact, Employer submitted no testimony or proof at the compensation 

hearing at all. The trial court then considered Employee’s attorney’s “extensive” efforts to

obtain the necessary proof for the benefits to be provided. As the trial court outlined, the 

attorney took numerous depositions of lay witnesses and the treating physician in order to 

prove Employee was entitled to the requested benefits. For the reasons outlined above, the 

trial court’s assessment of the denial of the benefits was proper under Tennessee Code 

Annotated 50-6-226(d)(1)(B), and, thus, we find no abuse of discretion in its decision to

award reasonable attorneys’ fees.

Conclusion

For the foregoing reasons, we affirm the trial court’s order in all respects and certify 

it as final. Costs on appeal are taxed to Employer.
 

 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

John A. Earheart, Jr. ) Docket No. 2019-06-1297 

) 

v. ) State File No. 52124-2018 

)

Central Transport, Inc., et al. ) 

) 

) 

Appeal from the Court of Workers’ ) Heard January 27, 2023 

Compensation Claims ) in Nashville, Tennessee 

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 14th day 

of February, 2023. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Via 

Email

Sent to: 

Richard R. Clark, Jr. X rclark@eraclides.com

jenniferdavis@eraclides.com

D. Andrew Saulters X dsaulters@ortalekelley.com

jarmstrong@ortalekelley.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