By Sarah Byrne, staff attorney, Nashville

The Appeals Board recently released its opinion in Satterfield v. Smoky Mountain Home Health & Hospice, affirming an award of extraordinary relief and deciding Kimberly Satterfield didn’t waive additional permanent disability benefits by leaving a box unchecked on the first of two dispute certification notices filed in her claim. 

The unchecked box

The Board was “unpersuaded” on this issue, emphasizing that the statute requires only that the mediator certify disputed issues “on a DCN, not necessarily the initial DCN” that is filed at the claim’s outset.

Because the mediator later certified permanent disability benefits on a second, post-discovery dispute certification notice, “increased permanent disability was properly before the court at the compensation hearing.”

The Board continued, “[Smoky Mountain’s] argument would require the court to look at only one portion of a DCN in a vacuum, which we have previously stated is not the proper course of action.”

Instead, a trial court must “‘consider the document as a whole’ and in the context of the entire record to determine what issues were certified by the mediator,” wrote the Board, quoting Marzette v. Pat Salmon and Sons, Inc. Here, the first dispute certification notice showed that the parties had mediated additional permanent disability benefits. And the petition attached to it plainly sought additional permanent disability.

So, “when viewing the [first] DCN as a whole and considering it in the context of the entire record,” concluded the Board, Satterfield “did not waive the issue,” and “the trial court properly considered [it].”

Extraordinary relief

As for extraordinary relief, Smoky Mountain failed to prove by contrary clear and convincing evidence that Satterfield could return to her pre-injury occupation considering her authorized doctor’s certification form and its presumption of correctness.

“Once the employee obtains the certification form signed by the treating physician,” wrote the Board, “the burden shifts to the employer to provide clear and convincing evidence the employee could return to the pre-injury occupation.”

Satterfield also had “restrictions from the two testifying physicians [placing] her in a sedentary category, and the experts agreed she would not have been able to return to any of her prior nursing positions,” according to the Board’s opinion.

Still, Smoky Mountain highlighted her work history as a professor in nurse training and identified potential positions in telehealth nursing.

Yet those jobs were not her pre-injury occupation. As she testified, she had no experience in telehealth and had limited experience teaching.

“While [she] had some experience as a professor,” wrote the Board, “based on her testimony, the bulk of her work history was as a registered nurse treating patients.”

Although the jobs that the defense’s vocational expert identified did preclude permanent total disability benefits, they did not constitute clear and convincing evidence that Satterfield could perform her pre-injury occupation.

Ultimately, even with “evidence of possible positions [Satterfield] could perform within her restrictions,” wrote the Board, “we agree with the trial court that [the defense] did not meet its burden of proving by clear and convincing evidence that [she] could perform her preinjury occupation.”

The Board held oral argument in the case last month.

Somewhere near Cookeville, Tennessee.