By Jane Salem, staff attorney, Nashville

So, you want to get paid? And your case went to trial?

Last week, the Chief Judge offered pointers for attorney fee awards when cases settle. This week, I’m taking a look at fees in litigated cases, with ideas for both plaintiff and defense lawyers.

BUT FIRST. Yes, you know what’s coming: the standard disclaimers. I speak for myself only, not the Court. I’m not giving “legal advice,” and please read the cases I’ll mention. Also, you can’t cite to this blog. If you do, not only is that grounds for the judge to rule against you, but also, you’ll look silly (I’m only partly kidding here).

What’s the starting point? Say it with me: the statute!

Workers’ compensation generally follows the American Rule: each side pays their own counsel. But sections 50-6-226(d)(1)(A) and (B) say a judge “may” award fees beyond the 20% typically paid by the employee in a couple instances.

The first, subdivision A, is when an employer “[f]ails to furnish appropriate … treatment or care … provided for in a settlement, expedited hearing order, compensation hearing order, or judgment.” The second, subdivision B) is when an employer “[u]nreasonably denies a claim or unreasonably fails to timely initiate any of the benefits to which the employee … is entitled … if the workers compensation judge makes a finding that the benefits were owed” at an expedited or compensation hearing.

In the first scenario above (subdivision 50-6-226(d)(1)(A)), the case posture is critical: has the judge already ordered treatment? If so, the employer’s intent is irrelevant, under a recent opinion from the Appeals Board, McCool v. Professional Care Services.

In the second scenario above (subdivision 50-6-226(d)(1)(B)), the employer’s intent matters—it must act “unreasonably.” The Board hasn’t defined that term yet, so that’s an issue to watch in a future case.

But also, remember that this section applies to denied claims or a failure to “timely initiate … benefits.” It’s not limited to medical benefits but rather includes temporary or permanent disability benefits, and death benefits, too.

The case posture matters here also. In Andrews v. Yates Services, the Appeals Board held that fees at the interlocutory stage (after an expedited hearing) are rarely appropriate, “[g]iven the twists and turns inherent in litigation[.]” But, it can happen. Consider the “extremely limited set of circumstances” in Thompson v. Comcast Corp.

AND STOP THE PRESSES. The statute will change soon! See this blog post for details. But in short, for injuries on or after July 1, 2026, when a judge finds by clear and convincing evidence that an employer acted unreasonably in denying a claim or failing to timely initiate benefits after an expedited hearing, the judge MUST award fees. We shall see how this plays out.

Okay, so an employee’s attorney believes a case is “ripe” for the judge to consider fees under either of the above situations.

If you’re on the defense and plan to contest fees, consider requesting a hearing, citing Hardin v. W.A. Kendall & Co., Inc. In that case, the Board vacated a fee award when the trial court didn’t hold a hearing on fees after the employer requested a hearing. The Board additionally instructed the judge on remand to consider the factors in Rules of Professional Conduct 1.5 and make findings on them.

Which means you, attorneys, need to be prepared to argue for or against each and every applicable factor. I’m not going to repeat the whole list here; see last week’s post for that.

But permit me to give a few thoughts on some of them.

“The time and labor required…” As basic as this sounds, you’ve got to keep track. What did you do, when, and how long did it take? By 2026, every law office has software for billing, even when the work is largely contingent. Attach this data to an affidavit or declaration. Be detailed.

“The fee customarily charged in the locality for similar legal services…” It’s helpful to not only testify in your affidavit as to what’s “customary,” but also to include affidavits from other lawyers about that. In McCool, the Board found $350 per hour for an employee’s lawyer “reasonable.” That case involved a very experienced attorney.

Along these lines, “The experience, reputation, and ability of the lawyer or lawyers performing the services…” We’re a small community of workers’ compensation practitioners in Tennessee. But we don’t know everything about everybody. So, tell the judge how long you’ve been practicing and if comp is all you do. (But a little humility goes a long way, too.)

And don’t assume the judge will remember what happened at an earlier hearing if you’re seeking fees. These judges are busy; they can’t remember what they ate for breakfast this morning, much less the evidence presented months ago at an expedited hearing. Case in point: Ruggieri v. Amazon.com.

As a final note, under either subdivision above, the judge “may” also award “reasonable costs, including, but not limited to, reasonable and necessary court reporter expenses and expert witness fees for depositions and trials.”

It’s discretionary—the judge “may” award costs—and examples of permissible costs are given. I might suggest that if it’s a type of cost listed under Rule 54.04(2), it’s probably fair game in this instance as well. What’s unlikely to be awarded? Photocopies. Postage. Or your “Uber Eats” when you decided to work late. (Yes, that was requested and denied—but hey, nice try!)

In conclusion, I’ve just given you about 900 words on advice of attorney fees and costs. I could write another 9,000, but I’ll spare you. This is a developing area of case law. Keep on reading those Appeals Board opinions; more guidance is surely on the way in the coming months and years.