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.

FILED

Apr 10, 2023

08:25 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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 

Mail

Fax Email Service sent to:

Emma Kesel X X Emma Kesel

2411 Tinnell Court

Murfreesboro, TN 37129

Emlorekes44@gmail.com

Lee Anne Murray,

Employer’s Attorney

X leeamurray@feeneymurray.com

_________________________________

PENNY SHRUM, COURT CLERK

wc.courtclerk@tn.gov
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 

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 filestamped 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 2 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]