Memo to Worker’ Comp Carrier: Standing on Your Rights Can Result in Scorched Feet

Tennessee Appeals Panel Affirms $27K Attorney’s Fee Related to $187 Medical Claim

In Grissom v. UPS, 2017 Tenn. LEXIS 4 (Jan. 9, 2017), the Special Workers’ Compensation Appeals Panel of the Supreme Court of Tennessee affirmed a trial court’s award of attorney’s fees and expenses in the amount of $27,353.63, in connection with an employee’s petition to compel the employer to pay $187 for two trigger point injections for pain that had been provided to the injured employee by her authorized physician. The employer’s workers’ compensation carrier had objected to the two injections—it had paid for earlier ones—and had sought a peer utilization review as to their medical necessity. The UR provider found the injections unnecessary, but the trial court, following a hearing on the matter, disagreed. The case illustrates the difficult position within which an employer or carrier can find itself. Standing on one’s perceived rights can sometimes result in scorched feet.

Background

Grissom sustained a compensable injury to her back in April 2007. In October 2010, the court determined that Grissom had sustained an 80 percent vocational disability to the body as a whole and, inter alia, awarded her future medical expenses. Grissom’s authorized physician began treatment with periodic trigger point injections for pain. In April 2013, however, the workers’ compensation carrier requested a peer utilization review regarding a requested injection. The UR provider found the procedure to be unnecessary and Grissom appealed to the medical director, who agreed with the UR provider.

In August 2013, Grissom sought to compel the employer to authorize the treatment. Grissom follow up that petition with a petition for contempt filed in April 2014. Grissom contended that she was paying for the injections out of pocket and that her authorized physician had advised the employer that they were medically necessary and beneficial to Grissom’s treatment. Grissom’s authorized physician also advised the court that the trigger point injections were a way of pain management without resorting to opioids.

After a hearing on the merits, the trial court entered an order in November 2014, which required the employer to pay for future trigger point injections and to reimburse Grissom for the two earlier trigger point injections she had paid out of pocket—amounting to $187. The court further found that it had been necessary for Grissom to obtain an attorney to represent her and that the parties had agreed the employer would pay the reasonable fees involved. The court indicated that the exact amount should be adjusted between the parties; otherwise the court would hold a hearing and set the fees.

The parties were unable to reach an agreement and thereafter Grissom’s attorney filed a motion seeking an award of fees and expenses in the total amount of $27,353.63. After a hearing, the trial court granted Employee’s motion and awarded the full amount requested in fees and expenses. The carrier appealed.

Appeals Panel Decision

The Appeals Panel observed that the trial court had properly considered the ten various factors that were to be considered in determining a reasonable attorney’s fee [see Welcher v. Cent. Mut. Ins. Co., 2013 Tenn. LEXIS 314 (Workers Comp. Panel Mar. 21, 2013). It also observed that the trial court had noted that the amount recovered was a modest amount of $187.00, plus unpaid mileage for a total judgment of approximately $1,000. Nevertheless, the trial court went on to find the agreed order provided that Grissom was the prevailing party and that the main objective of the petition had been achieved. The trial court indicated the relatively small amount of medical expenses at stake could not be said to trump the other factors of the trial court’s analysis.

The Appeals Panel noted that Grissom had sought to introduce several letters sent by Grissom’s counsel to counsel for the employer. Those letters had been excluded by the trial court on the basis that under Rule 408 offers to compromise were inadmissible. Grissom contended that the letters demonstrated her efforts (and those of her counsel) to limit the potential cost of the litigation. The Appeals Panel agreed with Grissom.

Letters from Grissom’s Counsel Were Damaging to Carrier

The Appeals Panel noted that the letters could be offered for another purpose other than compromise and settlement. In particular, two letters were particularly damaging. In a letter of April 25, 2013, Grissom’s attorney indicated that Grissom had done “very well” with the lumbar injections, that the injections kept Grissom off other medications, that an injection every three months was likely less expensive than other pain management treatment. In an August 15, 2013 letter, Grissom’s attorney even offered to waive his attorney’s fees if the carrier would pay for Grissom’s injections.

The Price of Doubling Down

The Appeals Panel continued:

This proof helps to explain why the fees were so large. Instead of paying for injections back in 2013, Liberty Mutual chose to “double down” on its belief that the opinion of a utilization review provider would trump the opinion of the treating physician; a treating physician, who was chosen by Liberty Mutual; who opined the trigger point injections were beneficial to his patient; who actually gave the trigger point injections; and who provided both a sworn statement and a deposition that these injections were beneficial to Employee.

The Appeals Panel acknowledged that a fee in excess of 28 times the recovery merited careful review, but the Panel also noted that the Supreme Court had not given greater weight to proportionality than to any of the other nine factors set out its case law concerning fees. The Panel concluded that in this case, the amount at issue was small, but the legal effort necessary to obtain that relief was substantial. It concluded, therefore, that the trial court did not abuse its discretion by awarding an attorney’s fee reflecting that expenditure of time and effort.