RUSSELL, J.D. v. BENCHMARK CONTRACTORS, LLC

2025 TN WC 73
CourtTennessee Court of Workers' Compensation Claims
DecidedOctober 23, 2025
Docket2024-60-3623
StatusPublished

This text of 2025 TN WC 73 (RUSSELL, J.D. v. BENCHMARK CONTRACTORS, LLC) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
RUSSELL, J.D. v. BENCHMARK CONTRACTORS, LLC, 2025 TN WC 73 (Tenn. Super. Ct. 2025).

Opinion

FILED Oct 23, 2025 08:59 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT NASHVILLE

J.D. RUSSELL, ) Docket No. 2024-60-3623 Employee, ) v. ) BENCHMARK CONTRACTORS, ) State File No. 14754-2024 LLC, ) Employer, ) And ) Judge Joshua Davis Baker BUILDERS MUTUAL INS. CO., ) Carrier. )

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EXPEDITED HEARING ORDER ___________________________________________________________________

On September 30, 2025, the Court held an expedited hearing on Mr. Russell’s entitlement to temporary total disability benefits from his injury date until his first visit with an authorized physician. Although Mr. Russell was temporarily totally disabled from working during this period, Builders Mutual argued he is not owed temporary disability given a four-month delay in signing a panel of physicians.

However, because the panel did not represent an offer of treatment in these circumstances, the Court holds Mr. Russell is likely to prevail at trial on past temporary disability benefits and awards him attorney’s fees for an unreasonable denial of benefits.

Claim History

On February 1, 2024, a “heavy steel tripod” struck Mr. Russell’s head, neck, back, and right shoulder while working. An ambulance took him to an emergency room, where he received staples for a head laceration and treatment for a concussion from being hit in the head by a “150 lb. object.” His foreman met him at the hospital, assuring him he could take time off to heal.

1 The next day, Benchmark reported the injury to its insurer, Builders Mutual. Claims adjuster Nicole Billings called Mr. Russell three days after that, leaving him a voicemail. However, according to her declaration, Mr. Russell never returned her call.

Because emergency medical staff instructed Mr. Russell to follow up with his family doctor, he visited his doctor February 6 and February 12 for treatment of post-concussion syndrome and removal of his staples. During those visits, he complained of acute shoulder pain, dizziness and falls, nausea, and headaches. Due to “[p]ost concussion syndrome,” his doctor took him “off work for 8 weeks from the 1st Feb.”

According to Mr. Russell’s declaration, his doctor said he needed a workers’ compensation doctor. But Mr. Russell, who was 78 when injured, testified that in roughly 65 years of working, he had “never fooled with workers’ compensation” and had “no clue” how to find a workers’ compensation doctor.

Mr. Russell could not recall missing any calls from an adjuster but said after his work injury, his mind was “fuzzy” from his concussion. He had memory problems and difficulty focusing and mostly slept because of his concussion symptoms and medication. He said he kept “Jennifer,” a secretary at Benchmark, informed about his condition. He believed his wife had texted medical records to Jennifer.

About a week after Ms. Billings attempted to call Mr. Russell, Benchmark reported to her that Mr. Russell needed treatment, telling her that “Mr. Russell had not returned to work and was now requesting treatment for an alleged head and shoulder injury,” according to her declaration. “In response,” she wrote, “I called Mr. Russell again and left a message for him to return [my] call.”

Within three days of the adjuster’s second phone call to him, Mr. Russell experienced a medical emergency of “stroke-like symptoms and right-sided weakness.” An ambulance rushed him to an area where a helicopter could airlift him to a hospital for treatment. He was told he had a stroke.

Within a few days of that, Mr. Russell hired counsel. Emails between his attorney and defense counsel suggested the insurer wanted to gather all records and investigate medical causation before offering medical treatment due to questions about the stroke and because “he missed several months of work last year as a result of injuries (including shoulder surgery) from a MVA.”

In a February 21 email, defense counsel acknowledged Mr. Russell “was struck in the head and sustained a laceration and mild concussion” at work but continued, “[M]y clients cannot provide any workers’ compensation benefits until they are able to obtain information on this claim.”

2 When Mr. Russell’s attorney pressed for treatment, defense counsel responded in a March 1 email, “We still don’t have medical records except for the initial ER visit[.]” (emphasis added). He continued, “We can get a HIPAA Release signed then, get the records and then be in a position to address authorized medical treatment.”

Three days later, on March 4, defense counsel emailed panels of neurosurgeons and orthopedists to Mr. Russell’s attorney. On March 7, Mr. Russell authorized the release of his medical records.

But on March 11, when Mr. Russell’s attorney again asked for benefits, defense counsel responded, “We offered two panels last week and need to have the [stroke] records prior to any appointment.” Later, he added, “We are certainly not wanting to delay any treatment or TTD due. We just need to confirm that there is medical evidence linking the stroke to the work injury[.]”

In May, Mr. Russell filed a petition seeking medical treatment and temporary disability benefits. Two months later, on July 22, Mr. Russell signed the March 4 panel selecting orthopedist Dr. James Rubright. The next day, his attorney returned the signed panel, and he saw Dr. Rubright for treatment of his right shoulder on August 8, 2024.

In February 2025, Dr. Rubright responded to a questionnaire, stating Mr. Russell could not work with his shoulder injury from February 1 until his August 8 appointment, and that after August 8, he was restricted to “no use” of his right upper extremity. Similarly, Dr. Clint Morgan completed a questionnaire affirming that Mr. Russell cannot work because of his shoulder injury: “[H]e is still unable to return to work due to significant weakness in his right upper extremity due to [his] shoulder injury . . . Until this is corrected, the patient really is not appropriate to return to work.” Mr. Russell continues to treat with both doctors.

Builders Mutual paid temporary disability beginning with the August 8 appointment onward but denied benefits from the injury date until the appointment, arguing Mr. Russell had not complied with medical treatment when he did not sign the orthopedist panel until July 22. Mr. Russell said he signed the panel as soon as he saw it.

The parties agreed Mr. Russell’s compensation rate is $577.07 and that temporary total disability benefits from February 1 through August 7, 2024, total $15,498.46.

As for Mr. Russell’s request for attorney’s fees, his counsel detailed her work on the case and requested a fee of $12,075.00. She also requested an award of 20% of any accrued temporary disability benefits.

3 Findings of Fact and Conclusions of Law

Mr. Russell need only present sufficient evidence at this stage that he is likely to prevail at a final hearing on his request for temporary disability benefits. Tenn. Code Ann. § 50-6-239(d)(1) (2024); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).

No one disputed that Mr. Russell was temporarily totally disabled by his work injuries from February 1 through August 7, 2024. His family doctor noted on February 12 that his concussion disabled him from working at least eight weeks from his injury date. Both treating physicians stated Mr. Russell was totally disabled from working because of his shoulder injury through August 7.

Noncompliance

Builders Mutual argued that because Mr.

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Related

§ 50-6-239
Tennessee § 50-6-239(d)(1)

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2025 TN WC 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-jd-v-benchmark-contractors-llc-tennworkcompcl-2025.