The opinion
FILED
Feb 22, 2022
07:15 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
ROGER BENSON, ) Docket No. 2021-08-0148
Employee, )
v. )
JONES BROS. CONTRACTORS )
LLC, ) State File No. 35695-2020
Employer, )
And )
TRAVELERS INDEMNITY CO., )
Carrier. ) Judge Deana C. Seymour
EXPEDITED HEARING ORDER
(Decision on the Record)
Roger Benson has not worked since he allegedly sustained physical and mental
injuries while working for Jones Brothers. Jones Brothers paid temporary disability
benefits until Mr. Benson reached maximum medical improvement for his physical
injuries. Mr. Benson now seeks additional temporary disability benefits while treating for
his mental injuries. After an Expedited Hearing on the record, the Court holds Mr. Benson
has not reached maximum medical improvement for his mental injuries and is entitled to
the requested benefits.
History of Claim
On May 18, 2020, a semi-truck struck a machine Mr. Benson was operating for
Jones Brothers. He reported the truck “swiped the machine as well as [his] body and threw
[him] . . . approximately eight (8) feet where [he] landed on the other side of the machine.”
Mr. Benson was evaluated at a local emergency room and discharged after x-rays showed
no acute injuries.
The next day, Mr. Benson went to an urgent care clinic for back pain, emotional
stress, and anxiety. Three days later, he returned to the urgent care clinic and was referred
to a therapist and neurosurgeon.
Mr. Benson received psychotherapy and psychiatric medication management for his
mental injuries from several mental health providers. 1 His therapists diagnosed post-
traumatic stress disorder and anxiety.
During that time, he also treated for his physical injuries. After receiving orthopedic
treatment for a low-back and neck strain, and a severe left-arm bruise, Mr. Benson
ultimately saw neurosurgeon Dr. John Brophy. Dr. Brophy noted Mr. Benson had a history
of preexisting chronic back pain but wrote that he was doing relatively well until the May
18 accident. He diagnosed cervical/trapezius myofascial pain and chronic back pain
associated with mild lumbar spondylosis. Dr. Brophy cleared Mr. Benson to return to full-
duty work and placed him at maximum medical improvement on November 9, without
permanent impairment.
After his release, Mr. Benson continued to treat for his mental injuries. In March
2021, he was evaluated by psychiatrist Dr. Melvin Goldin, whom he selected from a panel.
Mr. Benson complained of anxiety, flashbacks to this incident and to a childhood trauma,
social withdrawal, nightmares, and fear of driving. According to Dr. Goldin, Mr. Benson
displayed “gross fearfulness of something else bad happening, believing that he barely
narrowly missed death in this incident.”
Dr. Goldin diagnosed Mr. Benson with chronic post-traumatic stress disorder and
alcohol abuse. In discussing his assessment of post-traumatic stress disorder, Dr. Goldin
stated that childhood traumas and alcohol abuse may be contributing factors, but because
Mr. Benson was functioning adequately before the work incident, they were not the cause
of his current condition. Dr. Golden recommended continued psychotherapy and changed
Mr. Benson’s medications. In an April 9 letter, Dr. Goldin advised the nurse case manager
that Mr. Benson would be unable to return to his job.
Dr. Goldin continues to treat Mr. Benson and kept him off work from April 9 to
May 12, 2021. In response to a letter from Mr. Benson’s attorney, Dr. Goldin advised that
Mr. Benson was “unable to return to driving a big truck effective from date of injury
5/8/2020 [sic] through the present 11/24/2021.” He noted that his work status would be
reassessed at each visit.
Mr. Benson sought temporary disability benefits from December 30, 2020, to
November 24, 2021, totaling $20,984.56. 2 He also claimed a $7,143.68 underpayment of
temporary disability benefits from May 19 to December 29, 2020, based on an incorrect
compensation rate. Mr. Benson urged that his mental injuries primarily arose from the
1
It is unclear whether this treatment was authorized under workers’ compensation.
2
Jones Brothers paid temporary disability benefits through December 29, 2020.
2
mental trauma he experienced on May 18, 2020, and not from his physical injuries. His
attorney requested a fee of twenty percent of the temporary disability award.
Jones Brothers relied on Tennessee Code Annotated section 50-6-207(1)(E) (2021)
in support of its position that Mr. Benson’s entitlement to temporary disability benefits
ended when he reached maximum medical improvement for his physical injuries on
November 9, 2020. 3 It further relied on the Appeals Board opinion Tolbert v. MPW
Industries Services, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 1, at *6, 7 (Mar. 24, 2016).
Jones Brothers also denied Mr. Benson’s claim that an incorrect compensation rate was
used to calculate temporary disability benefits paid between May 19 and December 29.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Benson must show he is likely to prevail at a hearing
on the merits that he is entitled to the requested temporary disability benefits. See Tenn.
Code Ann. § 50-6-239(d)(1); McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The issue is whether Mr. Benson is entitled to temporary disability benefits after
being released from care for his physical injuries but being kept off or restricted from work
by his psychiatrist. Tennessee Code Annotated section 50-6-207(1)(E) provides that an
employee “shall be conclusively presumed to be at maximum medical improvement when
the treating physician ends all active medical treatment and the only care provided is for
the treatment of pain or for a mental injury that arose primarily out of a compensable
physical injury[.]” (Emphasis added).
The central focus when interpreting any statute is to “ascertain and give effect to the
intention or purpose of the legislature as expressed in the statute.” In re Adoption of A.M.H.,
215 S.W.3d 793, 808 (Tenn. 2007). Unless the language is ambiguous, the Court must
derive legislative intent “from the natural and ordinary meaning of the statutory language
within the context of the entire statute without any forced or subtle construction that would
extend or limit the statute’s meaning.” Id.
Tennessee law defines “mental injury” as a “loss of mental faculties or a mental or
behavioral disorder, arising primarily out of a compensable physical injury or an
identifiable work-related event resulting in a sudden or unusual stimulus[.]” Tenn. Code
Ann. § 50-6-102(17). Section 50-6-102(14)(B) provides that an injury arises primarily out
3
Jones Brothers contended that this issue was decided in McCaffery v. Cardinal Logistics, 2015 TN Wrk.
Comp. LEXIS 88 (Tenn. Ct. Wrk. Comp. Cl. June 25, 2015). The Court finds that opinion without binding
authority in this case. Further, an Appeals Board decision in the same case, McCaffery v. Cardinal Logistics,
2015 TN Wrk. Comp. App. Bd. LEXIS 50 (Dec. 10, 2015), did not address the issues currently before this
Court.
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of and in the course and scope of employment if the employment contributes more than
fifty percent in causing the injury. Using this definition as guidance, a mental injury only
arises primarily out of a physical injury if the physical injury contributed more than fifty
percent in causing the mental injury.
Considering this definition, attempting to fit this case within the parameters of
Tennessee Code Annotated section 50-6-207(1)(E) is like trying to fit a square peg into a
round hole. Here, Mr. Benson undeniably treated for multiple physical injuries for nearly
six months. However, in terms of the injuries found to have primarily arisen out of his
employment, he has since recovered and has been released from care with no restrictions
or permanent impairment.
The Court finds that Mr. Benson began experiencing emotional stress just two days
after the work incident. His mental injury did not develop over time while treating for his
physical injuries but arose very close in time to his work incident.
Further, in discussing his diagnosis of post-traumatic stress disorder, Dr. Goldin
specifically reported Mr. Benson suffered from anxiety, flashbacks, social withdrawal,
nightmares, and fear of driving. According to Dr. Goldin, Mr. Benson displayed “gross
fearfulness of something else bad happening, believing that he barely narrowly missed
death in this incident.” While Dr. Goldin stated that Mr. Benson’s childhood traumas and
alcohol abuse may be contributing factors to his condition, he determined they were not
the cause of his condition because he was functioning adequately before the work incident.
Dr. Goldin never mentioned Mr. Benson’s physical injuries in this discussion.
For these reasons, Jones Brothers’s reliance on Tolbert is misplaced. In Tolbert, the
employee’s treating physician released him at maximum medical improvement for his
physical injuries and referred him to pain management. The employee requested continued
temporary disability benefits after reaching maximum medical improvement for his
physical injuries. The employer denied the benefits. Under those facts, the Appeals Board
held the conclusive presumption of maximum medical improvement in section 50-6-
206(1)(E) applied and that the employee was unlikely to prevail on her request for
temporary disability benefits.
Unlike Tolbert, where the need for pain management arose from the physical injury,
the Court holds that Mr. Benson’s mental injury did not arise primarily out of his physical
injuries. Thus, Tennessee Code Annotated section 50-6-207(1)(E) does not bar his
entitlement to temporary disability benefits.
However, this holding does not end the Court’s analysis. If the mental injury did not
arise primarily out of his physical injuries, then to be compensable, it must arise primarily
out of an “identifiable work-related event resulting in a sudden or unusual stimulus.” Cases
focusing on this category of mental injuries make clear that (1) the injury must stem from
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an identifiable stressful, work-related event producing a sudden mental stimulus, and (2)
the event must be unusual compared to the ordinary stress of the worker’s job. Ireton v.
Horizon Mental Health Mgmt., LLC, No. E2015-00296-SC-R3-WC, 2016 Tenn. LEXIS 3,
at *28 (Tenn. Workers’ Comp. Panel Jan. 19, 2016).
The Court has little difficulty finding that being struck from behind by an eighteen-
wheeler truck at work qualifies as an identifiable stressful, work-related event producing a
sudden mental stimulus. In addition, while road construction crews work in close proximity
to trucks and other vehicles, the Court also deems the stress of being struck by one of those
vehicles as “unusual compared to the ordinary stress of the worker’s job.” Thus, the Court
holds that Mr. Benson is likely to prevail at a hearing on the merits of his mental injury
claim.
Having so held, the Court looks to Tennessee Code Annotated section 50-6-
207(1)(D) to determine Mr. Benson’s date of maximum medical improvement. This section
provides,
An employee claiming a mental injury, as defined by § 50-6-102, shall be
conclusively presumed to be at maximum medical improvement upon the
earliest occurrence of the following: (i) At the time the treating psychiatrist
concludes the employee has reached medical improvement; or . . . (iii) One
hundred four (104) weeks after the date of injury in the case of mental injuries
where there is no underlying physical injury.
The Court may have determined that Mr. Benson’s mental injury did not arise
primarily out of his physical injury, but he still sustained an underlying physical injury. So,
only subpart (i) would apply to the circumstances of this case, and Dr. Goldin has not yet
placed Mr. Benson at maximum medical improvement. Therefore, Tennessee Code
Annotated section 50-6-207(1)(D) does not bar his entitlement to additional temporary
disability benefits.
Turning to Mr. Benson’s request for temporary total disability benefits, he must
show (1) total disability from working as the result of a compensable injury; (2) a causal
connection between the injury and the inability to work; and (3) the duration of the period
of disability. Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS
48, at *7 (Dec. 11, 2015). For temporary partial disability benefits, he must show that his
treating physician returned him to work with restrictions that Jones Brothers either could
not or would not accommodate. See id. at *8.
The parties stipulated that Mr. Benson received temporary disability benefits from
May 19 to December 29, 2020. Having reviewed the benefit ledger and wage statement,
the Court finds that benefits were paid at the agreed compensation rate of $446.48 during
this period. Therefore, the Court finds that no underpayment of temporary disability
5
benefits is owed for this period.
From April 9 to May 12, 2021, Dr. Goldin took Mr. Benson completely off work
for his mental injury due to his fearfulness around eighteen-wheelers. He considered
whether Mr. Benson’s childhood traumas or alcohol abuse caused his condition but
determined they were not the cause because he was functioning adequately before the work
incident. Thus, Mr. Benson would be entitled to four weeks and five days of temporary
total disability benefits at the agreed compensation rate of $446.48, totaling $2,104.83.
Regarding the periods from December 30, 2020, to April 8, 2021, and from May 13
to November 24, 2021, Dr. Goldin responded to a letter from Mr. Benson’s attorney stating
he was “unable to return to driving a big truck effective from date of injury 5/8/2020 [sic]
through the present 11/24/2021.” Jones Brothers did not introduce any proof that it
accommodated this restriction. Moreover, while medical records suggest Jones Brothers
terminated Mr. Benson in June 2020, no proof showed that his termination was precipitated
by misconduct. Therefore, Mr. Benson would also be entitled to forty-two weeks and two
days of temporary partial benefits, totaling $18,879.73.
IT IS ORDERED as follows:
1. The Court grants Mr. Benson’s request for additional temporary disability benefits.
2. Jones Brothers shall pay Mr. Benson a lump sum of $20,978.56, representing
$2,104.83 in temporary disability benefits from April 9 to May 12, 2021, and
$18,879.73 in temporary partial disability benefits for December 30, 2020, through
April 8, 2021, and between May 13 and November 24, 2021.
3. Counsel for Mr. Benson is granted an attorney’s fee of $4,195.71, equating to twenty
percent of his lump sum award for temporary disability benefits, payable from Mr.
Benson’s temporary disability award.
4. This case is set for a Status Conference on April 4, 2022, at 8:30 a.m. Central
Time. The parties must call (866) 943-0014 to participate. Failure to appear might
result in a determination of the issues without the party’s participation.
5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The
Employer must submit confirmation of compliance with this Order to the Bureau by
email to WCCompliance.Program@tn.gov no later than the seventh business day
after entry of this Order. Failure to submit the necessary confirmation within the
period of compliance may result in a penalty assessment for non-compliance. For
6
questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED February 22, 2022.
_______________________________
DEANA C. SEYMOUR, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
The Court reviewed the entire case file in reaching its decision. Specifically, the
Court reviewed the following documents:
1. Petition for Benefit Determination with attachments
2. Dispute Certification Notice
3. Notice of Appearance
4. Request for Expedited Hearing, along Mr. Benson’s affidavit
5. Joint Motion to Try Expedited Hearing on the Record
6. Employer/Carrier’s Motion to Continue Expedited Hearing
7. Joint Notice of Filing Medical Records, dated September 27, 2021
8. Joint Stipulation
9. Order Granting Joint Motion to Try Expedited Hearing on the Record and
Employer/Carrier’s Motion to Continue Expedited Hearing and Docketing
Notice for Decision on the Record
10. Employee’s Notice of Filing - Dr. Goldin’s Signed Response Confirming Work
Status
11. Joint Notice of Filing Updated Medical Records
12. Employee’s Expedited Hearing Brief
13. Employer/Carrier’s Expedited Hearing Brief
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CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on February 22, 2022.
Name Certified U.S. Email Service sent to:
Mail Mail
Monica Rejaei, X mrejaei@nstlaw.com
Employee’s Attorney
Paul Nicks, X pnicks@travelers.com
Employer’s Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082