Lawmakers Reinstate Attorney Fee Provision (And Don’t Forget the Affidavit)

By Judge Joshua Davis Baker, Nashville

You might recall that last year, the pandemic hit about the time the legislature was taking up the issue of the “sunset” status of the attorney’s fee provision in Tennessee Code Annotated section 50-6-226(d)(1)(B). This applies in cases when an employer “wrongfully denies a claim or wrongfully fails to timely initiate any of the benefits to which the employee or dependent is entitled[.]”

Discussions were taking place on the issue of extending the sunset of this section or placing some type of limit on the fee awarded. Unfortunately, due to the shortened session, that discussion did not conclude, and the sunset occurred.

In the present legislative session, the General Assembly reinstated the Court’s authority to assess an attorney fee under Tennessee Code Annotated section 50-6-226(d)(1)(B). The Court may award a fee if it “makes a finding that the benefits were owed at expedited hearing or a compensation hearing.” For this section, “’wrongfully’ means erroneous, incorrect, or otherwise inconsistent with the law or facts.”

This is the exact wording as before. Nothing new here.

Under the original statute, the fee applied to injuries occurring on or after July 1, 2016, but before June 30, 2020. Under the revived law, a court may award a fee in cases with a date of injury on or after July 1, 2021, but before June 30, 2023.

While on the subject of attorneys’ fees, just a reminder that anyone collecting a fee of $10,000 or more must file an affidavit detailing your work in the case for the fee to be approved. This applies in all cases and for all attorneys, no matter whom you represent.

The affidavit should reference the factors in Supreme Court Rule 8, 1.5(a). See Keen v. Ingles Markets for additional guidance.

A recent sunset near Cookeville. Photo by Elizabeth Vines, staff attorney, Tennessee Workers’ Compensation Appeals Board.

2 thoughts on “Lawmakers Reinstate Attorney Fee Provision (And Don’t Forget the Affidavit)

  1. Tony Farmer says:

    Judge Baker
    Thanks for taking the time to provide the legislative update on attorney fees the sunset suspension of attorney fees for injuries occurring in the one year suspended period and resuming for injuries occurring on or after 07/01/2021 and the reminder about affidavits for fees exceeding $10,000.00 for all attorneys. Hopefully, the reinstatement will allow more workers to find an attorney willing to assist them with the incentive that they could be paid.


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