Billy R. Phillips v. Tennessee Technological University, State of Tennessee ( 1998 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
FOR PUBLICATION
December 7, 1998
Filed: December 7, 1998
Cecil W. Crowson
Appellate Court Clerk
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 Reporter Cookeville
MARY BYRD FERRARA
Assistant Attorney General
OPINION
CLAIMS COMMISSION AFFIRMED IN PART HOLDER, J.
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 claims 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 plaintiff filed a motion to
recover discretionary 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." Specifically, the plaintiff alleged he was entitled to
recover: (1) the treating physician's fee of $150.00 for preparation of a C-32
form1 in lieu of a deposition; (2) court reporter costs of $35.00 associated with
the plaintiff's discovery deposition; and (3) a fee of $300.00 charged by a
vocational disability expert who testified at trial.
The claims commission awarded the plaintiff permanent partial disability
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 reporter costs and for the vocational disability expert's fee.
The Special Workers' Compensation Panel modified the plaintiff's disability
award to thirty-seven percent to the body as a whole and remanded the case for
an award of reasonable discretionary costs. The State has raised only one issue
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The D epartm ent of La bor Stan dard Fo rm M edical Re port.
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on appeal to this Court: whether the State may be held liable for discretionary
costs. We granted review and hold that the claims commission acted properly in
denying discretionary costs other than the treating physician's fee for preparation
of the C-32 form.
ANALYSIS
The plaintiff argues that he is entitled 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 (Tenn. 1992). Rule 54.04 permits a
prevailing party to recover court costs, discretionary costs, and interpreter costs.
See Rule 54.04(1) (permitting recovery of costs included in the bill of costs); Rule
54.04(2) (allowing recovery of discretionary costs); Rule 54.04(3) (permitting
appointment and payment for interpreter). Rule 54.04(1) prescribes a limitation
for the assessment of costs against the State as party to litigation. This limitation
provides that "costs against 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 expressly provides that "[t]he
state will be liable for actual damages only . . . . The state will not be liable for
punitive damages and the costs of litigation other than court costs." Tenn. Code
Ann. § 9-8-307(d).
In Reagan v. American Policyholders' 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 associated with the treating physician's fee and testimony.
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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, unlike those against the Second Injury Fund, are subject to the claims
commission statutes.
Rule 54.04(2) permits discretionary costs. The claims commission statute
specifically prohibits taxing discretionary 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 legislative mandate with specific application to the State as a defendant. We
hold that the specific mandate of § 9-8-307(d) takes precedence over the
general discretionary costs provision, Rule 54.04(2). See Cooper v. Alcohol
Comm. of the City of Memphis, 745 S.W.2d 278, 280 (Tenn. 1988) (holding
specific statutory provisions take precedence over general rule provisions).
Accordingly, the State may not be taxed discretionary 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' Compensation Act ("Act"). The Act provides:
The fees charged to the claimant by the treating physician or
a specialist to whom the employee was referred for giving
testimony by oral deposition relative to the claim, shall, unless the
interests of justice require otherwise, be considered a part of the
costs of the case, to be charged against the employer when the
employee is the prevailing party.
Tenn. Code Ann. § 50-6-226(c)(1). We, therefore, must determine whether this
section may be interpreted as an express legislative mandate authorizing a
litigation cost against the State in a workers' compensation case. The
Tennessee claims commission statute excludes certain enumerated code
sections from applicability in workers' compensation claims filed against the
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State. Tenn. Code Ann. § 9-8-307(K)(i). Absent from this list of exclusions is
§ 50-6-226(c)(1).
A fundamental rule of statutory construction is that the mention of one
subject in a statute means the exclusion 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 legislature intended to preclude
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 workers' compensation claimant by a treating physician or
specialist, as provided for in § 50-6-226(c)(1).
In the claim now before us, the plaintiff has requested reimbursement for
the following expenses: (1) the fee charged by the treating physician relative to
the claim; (2) the cost of a court reporter for the plaintiff's discovery deposition;
and (3) the fee charged by vocational disability expert for appearance at trial.
As the prevailing party, the plaintiff is entitled only to the costs of the treating
physician’s fee pursuant to § 50-6-226. The plaintiff's remaining two claims for
discretionary costs are outside the ambit of § 50-6-226 and were properly
denied.
The claims commission’s judgment as to costs is affirmed. The judgment
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 defendants for which
execution may issue if necessary.
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JANICE M. HOLDER, JUSTICE
Panel:
Anderson, C.J.
Drowota and Birch, J.J.
Reid, Sp.J., Not Participating
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