# FILED
December 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: December 7, 1998
BILLY R. PHILLIPS, ) ) PLAINTIFF/APPELLEE, ) Tennessee Claims Commission ) v. ) ) Hon. W. R. Baker, Commissioner TENNESSEE TECHNOLOGICAL ) UNIVERSITY, STATE OF ) TENNESSEE, ) No. 01S01-9708-BC-00173 ) DEFENDANTS/APPELLANTS. )

FOR APPELLANT : FOR APPELLEE : JOHN KNOX WALKUP RONALD THURMAN Attorney General and Repor ter Cookeville MARY BYRD FERRARA Assistant Attorney Gener al



# O P I N I O N

CLAIMS COM MISSION AF FIRMED INPART HOLDER, J.1 The D epartm ent of La bor Stan dard Fo rm M edical Re port. 2 OPINION
We granted this appeal to address whether the State may be liable for discretionary costs pursuant to Tenn. R. Civ. P. 54.04(2) in a workers' compensation case. We hold that the State may only be taxed for costs expressly permitted

by either the Tennessee clai ms commission statute or the Workers' Compensation Act.

BACKGROUND
The plaintiff, Billy R. Phillips, sustained a work-related injury while employed by the defendant, a state university. The plai ntiff filed a motion to recover discretionar

y costs pursuant to Tenn. R.Civ. P. 54.04. The motion sought recovery for

"expenses incurred by the plaintiff in preparation and prosecution of this case." Speci fically, the plaintiff alleged he was entitled to recover: (1) the tr

eating physician's fee of $150.00 for preparation of a C-32 form 1 in lieu of a deposition; (2) court reporter costs o f $35.00 associated with the plain tiff's d iscovery de position ; and (3) a fee of $ 300.00 c harged by a vocational disability expert who testified at trial.

The claims commission awar ded the plaintiff permanent partial di sability benefits of thirty percent to the body as a whole and $150.00 for the treating physician's fee in lieu of deposition. The claims commission denied the plaintiff's requests for the court repor ter costs and for the vocati onal disability ex pert's fee. The Special Workers' Compensation Panel modified the plaintiff's disability award to thirty-s

even percent to the body as a whole and remanded the case for an award of reasonable discr etionary costs. The State ha s raised only one iss ue3 on appeal to this Court: whether the State may be held liable for discretionary costs. We granted review and hold that the claims comm ission acted properly in denying discretionar

y costs other than the tr eating physician's fee for preparation of the C-32 for

m.

ANAL YSIS
The plaintiff argues that he is enti tled to discretionary

costs pursuant to both Tenn. R. Civ. P. 54.04 and our holding in Reagan v. American Policyholders' Ins. Co. , 842 S.W.2d 249 (Te nn. 1992). Rule 54.04 permits a prevailing party

to recover court cos

ts, discretionary c

osts, and interpreter cost s. See Rule 54.04(1) (permitting recovery of costs included in the bill of costs); Rule 54.04(2) (allowing

recovery of discre

tionary costs); Rul e 54.04(3) (permitting appointment and payment for interpr eter). Rule 54.04(1) pr escribes a limitation for the assessment of costs agains t the State as party to li tigation. This limitati on provides that "costs ag ainst the state, its officers, or its agencies shall be imposed only to the extent permitted by law." Id

.
The claims commission has exclusive jurisdiction over workers' compensation claims against the State of Tennessee. Tenn. Code Ann. § 9-8-307(a)(1)(K). The claims commission statute ex pressly provides

that "[t]he state will be liabl e for actual damages only . . . . The state will not be liable for punitive damages and the cos ts of litigation other than court costs." Tenn. Code Ann. § 9-8-307(d).

In Reagan v. American Poli cyholders' Ins. Co. , 842 S.W.2d 249, 251 (Tenn. 1992), the trial court taxed to the Second Injury Fund a portion of the court costs and costs assoc iated with the treating

physician's fee and testimony

.4 Reagan dealt only with the assessment of costs against the Second Injury Fund. Reagan is readily distinguishable from the case now before us. Claims against the State, unl ike those against the Sec ond Injury

Fund, are su bject to the claims commission statutes.
Rule 54.04(2) permits dis cretionary costs. The c laims commission statute specifically prohibit

s taxing discreti onary costs against the state. Tenn. Code Ann. § 9-8-307(d). While Rule 54.04 is a rule of general application, § 9-8-307 is a l eg is la ti ve ma nd at e w it h s pe ci fi c a pp li ca ti on to th e S ta te as a d ef en da nt . We hold that the specific mandate of § 9-8- 307(d) takes precedence ov er the general discretionary

costs provision, R ule 54.04(2). See Cooper v. Alcohol Comm. of the City of Memphis , 745 S.W.2d 278, 280 (Tenn. 1988) (holding specific statutory prov

isions take precedence ov er general rule prov

isions). Accordingly, the Stat

e may not be taxed discr etionary or litigation costs absent an express legislative mandate.
The State's liability for

workers' compensation claims is subject to the general provisions of the Workers' Compensa tion Act ("Act"). The Act provides:

The fees charged to the claimant by the treating physici an or a specialist to whom the employee was referred for g iving testimony by oral depos ition relative to the c laim, shall, unless the interests of justice req uire otherwise, be cons idered a part of the costs of the case, to be charge d against the employer w hen the employee is the pre vailing par ty.
Tenn. Code Ann. § 50-6-226(c)(1). W e, therefore, must determine whether this section may be in terpreted as an express legislative ma ndate author izing a litigation cost agai nst the State in a worker s' compensation case. The Tennessee claims commission statute excludes certain enumer ated code sections from applicability in workers' compensation claims filed against the5 State. Tenn. Code Ann. § 9-8-307(K)(i). Absent from th is list of exclusions is § 50-6-226(c)(1).
A fundamental rule of statutory cons truction is that the mention of one subject in a statute means the ex clusion of other subjects that are not mentioned. State v. Davis , 940 S.W.2d 558, 561 (Tenn. 1997); Mike v. Po Group, Inc. , 937 S.W.2d 790, 794 (Tenn. 1996); State v. Harkins , 811 S.W.2d 79, 82 (Tenn.1991) (holding omissions are significant when statutes are express in certain categories but not others). Had the leg islature intended to precl ude application of § 50-6-226, it could have simply added this code section to the list of excluded code sections in § 9-8-307. Accordingly, the State may be liable for fees charged to a worker s' compensation claimant by a treating physici an or specialist, as provided for in § 50-6-226(c)(1).
In the claim now before us, the plaintiff has requested reimbur sement for the following expenses : (1) the fee charged by the treating physici an relative to the claim; (2) the cost of a c ourt reporter for the plainti ff's discovery depositi on; and (3) the fee charged by vocational disabilit y expert for appearance at trial. As the prevailing par

ty, the plaintiff is entitl ed only to the costs of the tr eating physician’s fee pursuant to § 50-6-226. The plaintiff's remaini ng two claims for discretionary costs are outside the ambit of § 50-6-226 and were properly denied.
The claims commission’s judg ment as to costs is affirmed. The judg ment as to the plaintiff's disability award stands as modified by the Special W orkers' Compensation Panel at thirty -seven percent to the body as a whole. Costs of this appeal shall be taxed equally against the plaintiff and defe ndants for which execution may issue if necessary.6 JANICE M. HOLDER, JUSTICE

Panel: Anderson, C.J. Drowota and Birch, J.J. Reid, Sp.J., Not Partici pating