Kesel, Emma v. Big Fluffy Dog Rescue, Inc.

2023 TN WC 26

• Court: Tennessee Court of Workers' Compensation Claims
• Decided: April 10, 2023
• Docket: 2022-05-0937
• Status: Published

Opinion

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 *

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