Kesel, Emma v. Big Fluffy Dog Rescue, Inc. ( 2023 )

FILED
Apr 10, 2023
08:25 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
EMMA KESEL, ) Docket No. 2022-05-0937
Employee, )
v. )
)
BIG FLUFFY DOG RESCUE, ) State File No. 62442-2020
INC., )
Employer, )
And )
MARKEL INS. CO., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
(Decision on the Record)
The Court considered this case on April 6, 2023, for an Expedited Hearing
on the record. The threshold issue is whether Ms. Kesel’s claim is barred by the
statute of limitations. For the reasons below, the Court holds Ms. Kesel is unlikely
to prove at a hearing on the merits that she timely filed her claim. Therefore, she is
not entitled to benefits at this time.
History of Claim
Ms. Kesel filed a Petition for Benefit Determination on September 20, 2022.
She alleged that she injured her left leg while walking a dog at work on August 24,
2020. She received a panel of physicians and selected Dr. David West. Although
she complained of continuing symptoms of swelling and pain, he released her with
no restrictions on December 14. Ms. Kesel wrote in the petition and her Rule 72
Statement that she then sought treatment from an unauthorized doctor for chronic
regional pain syndrome, which she claimed resulted from her work injury.
Ms. Kesel filed a Request for Expedited Hearing seeking a hearing on the
record. Specifically, she sought additional medical treatment and physical therapy.
Big Fluffy Dog presented a Rule 72 statement from Melissa Gazerro, the
adjuster for this claim. She stated that the last date any benefits were paid to or on
behalf of Ms. Kesel was January 27, 2021. Among its other arguments, Big Fluffy
Dog contended that the statute of limitations bars Ms. Kesel’s claim. It asked the
Court to deny her request.
Findings of Fact and Conclusions of Law
To grant Ms. Kesel’s request, she must show she is likely to prevail at a
hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2022); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8,
9 (Mar. 27, 2015).
Tennessee’s workers’ compensation law states in relevant part that when the
employer has voluntarily paid workers’ compensation benefits, the case must be
filed within one year after the accident resulting in injury or within one year from
the date of the last authorized treatment. Tenn. Code Ann. § 50-6-203(b)(2).
Further, the employer has the burden to prove the facts it asserts bar the claim, such
as the expiration of the statute of limitations, and when it does so, the burden shifts
to the plaintiff to demonstrate a recognized exception. Cloyd v. Hartco Flooring
Co., 274 S.W.3d 638, 647 (Tenn. 2008).
Ms. Kesel admitted that Dr. West discharged her from his care and that she
sought treatment on her own. The last medical payment made by her employer was
January 27, 2021. Ms. Kesel then did not file her Petition for Benefit Determination
until September 20, 2022, approximately twenty months later. Because she did not
file within one year of the last authorized treatment or demonstrate a recognized
exception, the Court must hold that Ms. Kesel is not likely to prevail at a hearing on
the merits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Kesel’s claim against Big Fluffy Dog Rescue, Inc. is denied at this time.
2. This case is set for a Scheduling Hearing on June 7, 2023, at 9:30 a.m. You
must call toll-free at 855-874-0473 to participate. Failure to call might result
in a determination of the issues without your further participation. All
conferences are set using Central Time.
ENTERED April 10, 2023.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Ms. Kesel’s Rule 72 Declaration
2. Documents submitted to the mediator by Ms. Kesel (dated 11-8-22 on TN
Comp)
3. Documents submitted to the mediator by Big Fluffy Dog Rescue (dated 11-
8-22 on TN Comp)
4. Rule 72 Declaration of Melissa Gazerro
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing on the Record
4. Employer’s Position Statement
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on April 10, 2023.
Name Certified Fax Email Service sent to:
Mail
Emma Kesel X X Emma Kesel
2411 Tinnell Court
Murfreesboro, TN 37129
Emlorekes44@gmail.com
Lee Anne Murray, X leeamurray@feeneymurray.com
Employer’s Attorney
_________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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