By Sarah Byrne, staff attorney, Nashville

The Appeals Board heard oral arguments recently in Satterfield v. Smoky Mountain Home Health & Hospice to decide if Kimberly Satterfield waived a claim for increased benefits by not ensuring a “permanent disability benefits” box was marked on one of two dispute certification notices filed in the claim. 

“You don’t just read the DCN, nor any one box, in a vacuum,” Timothy Roberto, her attorney, told the Board. “It’s abundantly clear from the parties’ conduct what this case was about.”

Satterfield filed a petition for permanent disability benefits. Two months later, the mediator issued the first dispute certification notice, checking this box:

But not the blank “permanent disability benefits” box under “disputed issues” shown here:

However, that dispute certification notice was not the only, or even the last, dispute certification notice filed. In fact, the Board pointedly inquired about this issue.

“Is there a DCN in this case [where] permanent disability benefits are listed as the issue?” asked Presiding Judge Timothy Conner.

“Yes,” answered Tiffany Sherrill, attorney for Smoky Mountain, asserting the trial court ordered the issue be identified on a second dispute certification notice filed after post-discovery mediation before deciding summary judgment because “permanent disability benefits were not preserved on the original DCN.”

Additionally, the trial court postponed summary judgment because the scheduling order had already set the post-discovery mediation. Of course, two dispute certification notices in a claim are common, since mediation occurs initially when a petition is filed and then again “after discovery is completed unless the judge determines it unnecessary.” Tenn. Comp. R. & Regs. 0800-02-21-.21.

After the post-discovery mediation here, the mediator filed the second and last dispute certification notice. This time, she marked both boxes and specified some “additional issues,” including extraordinary relief. Therefore, according to the employee’s argument, the trial court’s compensation order followed the framework of the last dispute certification notice, which had checked every box and included some additional specificity.  

“Counsel,” Judge Conner asked, “Is it your position that if an issue is not identified in the first DCN, it is waived unless the Court makes findings required by the statute [to amend it]?”

“I think it depends on the circumstances,” answered Sherrill. “If it’s an issue that you don’t know about yet, then ‘no,’ it’s not waived.”

He then asked how this case differs from the typical claim, where an employee just wants some initial treatment and seeks only “medical benefits,” yet might eventually need permanent disability benefits, too.

The difference, Sherrill said, is that Satterfield knew permanent disability benefits were disputed when the first notice was issued. In contrast, an employee seeking medical treatment early in a claim is likely not at maximum recovery and might not know yet if she has a permanent disability.

“Our argument is that you’ve only waived issues if you knew about them and you didn’t preserve them,” she said.

She claimed the second dispute certification did not properly preserve permanent disability benefits because a mediator can only certify disputed issues that are “remaining,” not new issues.

Her argument derives from a program rule that reads, “If the parties do not reach a full settlement [after post-discovery mediation], the mediator will file a new dispute certification notice identifying the remaining issues and defenses.” Tenn. Comp. R. & Regs. 0800-02-21-.21(3).

While some might think “remaining” means any issues not already certified, Sherrill argued it means any issues not already waived.

“This is not a remaining issue,” she said, “because it had already been waived. There was no permanent disability benefits issue remaining from the prior dispute certification notice.”

Roberto argued case law supports Satterfield’s position that permanent disability was sufficiently preserved, as the dispute certification notice should be viewed “as a whole without reading its components in a vacuum” and because “factors…outside of the four corners of the DCN” deserve consideration.

For example, he argued, Satterfield’s petition definitively sought permanent disability benefits, and the parties’ conduct throughout litigation centered on obtaining, and defending against, permanent disability benefits, including extraordinary relief.

Roberto pointed to the defense’s participation in mediations and the scheduling order that permitted Smoky Mountain Home to fully develop proof concerning permanent disability by deposing the doctor and hiring a vocational expert. He claimed the defense suffered no prejudice from that one unchecked box.  

But until the Board issues its decision, it remains unclear if post-discovery mediation vacuums up any old issue—or only those preserved inside the vacuum of that one remaining box.

Downtown Nashville, as seen from Luke Lea Heights at Percy Warner Park. Photo by Jane Salem, staff attorney, Nashville.