Satterfield, Kimberly v. Smokey Mountain Home Health & Hospice

FILED
Jun 30, 2023
03:30 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
KIMBERLY SATTERFIELD, ) Docket No. 2019-03-1440
Employee, )
v. )
SMOKY MOUNTAIN HOME )
HEALTH & HOSPICE, ) State File No. 7635-2019
Employer, )
And )
BRIDGEFIELD CASUALTY )
INSURANCE, ) Judge Lisa A. Lowe
Carrier. )
COMPENSATION ORDER
The Court held a Compensation Hearing on June 27, 2022. The issue is whether
Ms. Satterfield is entitled to increased benefits, extraordinary relief, or permanent total
disability benefits. For the reasons below, the Court holds that Ms. Satterfield is entitled
to extraordinary relief.
History of Claim
Ms. Satterfield worked as a registered nurse for Smoky Mountain Home Health &
Hospice. On January 29, 2019, Ms. Satterfield stepped on ice and fell. She landed on her
right knee with her right arm outstretched, injuring her shoulder, middle finger, hip, and
knee, all on her right. Ms. Satterfield received authorized medical treatment from Drs.
Conrad Ivy for her knee and hip, Paul Brady for shoulder, and Timothy Renfree for the
finger.
The Court held a previous Compensation Hearing and issued an order granting Ms.
Satterfield an original award based on a combined impairment rating of twelve percent to
the whole body. Ms. Satterfield’s initial compensation period has now expired, and she
seeks increased benefits, extraordinary relief, or permanent total disability benefits.
1
The parties introduced into evidence the deposition transcripts of various physicians
and the reports and testimony of their respective vocational experts. The Court summarizes
the evidence and testimony below.
Ms. Satterfield saw Dr. William Kennedy on her own for a one-time evaluation. He
is a board-certified orthopedic surgeon and American Board of Independent Medical
Examiners, and a member of the Medical Impairment Rating Registry. He assigned the
following permanent restrictions: no repetitive right-hand motion; no reaching or working
above shoulder level; no climbing, crawling, ladders/bending, stooping, squatting,
kneeling, crawling; use a cane/walker; sit at least seventy-five percent of the time and
alternate positions every thirty minutes; no lifting more than ten pounds occasionally with
both hands, and no lifting more than five pounds frequently with the right hand.
Dr. Paul Brady is the authorized orthopedic shoulder surgeon. He ordered a
Functional Capacity Evaluation that placed Ms. Satterfield at sedentary work activity. Dr.
Brady adopted the Functional Capacity Evaluation restrictions: occasional lift of twenty
pounds and frequent ten pounds using both hands, and lift to ten pounds overhead
occasionally with right hand. When asked if Ms. Satterfield could carry a laptop computer,
he said she could lift a light laptop with both hands for short periods of time, but not for
anything considered “occasional.” Dr. Brady stated that he did not believe Ms. Satterfield
would have difficulty working at a computer. Addressing whether Dr. Brady adopted
portions of the FCE contained after the “Summary of Findings,” he said he considered that
portion of the data that helps the therapist form the conclusions listed in the findings. 1
Finally, Dr. Brady completed a physician certification form confirming that Ms. Satterfield
is no longer able to perform her pre-injury occupation.
Michael Galloway, a vocational consultant with a master’s degree in vocational
rehabilitation counsel and a certified rehabilitation counselor, evaluated Ms. Satterfield.
He found that she is 100% vocationally disabled. Mr. Galloway said that he used the DOT
database in forming his opinion, but the database has not been completely revised since
1991. 2 Mr. Galloway testified Ms. Satterfield does not have access to full unlimited
sedentary work because she would have difficulty keyboarding. He based that opinion on
part of the FCE testing grip strength, which noted Ms. Satterfield dropped several nuts,
grimaced, and held her breath.
Smoky Mountain obtained an evaluation with vocational expert Michelle McBroom
Weiss, who has a master’s in vocational rehabilitation counseling, many certifications, and
is an American Board of Vocational Experts diplomate. Ms. Weiss testified that many job
types, such as sedentary nursing and remote telehealth, are not included in the DOT
database, because they did not exist at the time of the last update. Ms. Weiss did not assign
1
Neither party introduced the full Functional Capacity Evaluation report into evidence.
2
Some positions in the DOT database were updated in 1998.
2
a percentage of vocational disability, but she did testify that based on Ms. Satterfield’s
education and past work history, she would be able to perform some work. She referenced
ten examples of positions that in her opinion Ms. Satterfield would qualify for and be able
to perform. She said that employers typically list the qualifications they would like their
ideal candidate to possess, but they are often willing to hire those who match closely
enough and have extensive experience.
Ms. Satterfield testified as well. She has not worked since leaving Smoky
Mountain. She said she wants to work but does not think she can physically meet the
demands of any type of employment. She has a Bachelor of Science Nursing degree, a
master’s in nurse practices and women’s health, as well as certifications for nurse
consulting for the legal field and mother/baby monitoring. Ms. Satterfield said that she is
unable to hold her arm up for extended periods, and her fingers hurt when she types due to
the work-related finger fracture.
Findings of Fact and Conclusions of Law
Ms. Satterfield has the burden of proof on all essential elements of her claim. Scott
v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
2015). She must prove by a preponderance of the evidence that she is entitled to the
requested benefits. Tenn. Code Ann. § 50-6-239(c)(6) (2022).
Since Ms. Satterfield’s initial compensation period has now expired, and she has
not returned, she is eligible for increased benefits. The increased benefits are based first
on her work and earnings status and may be increased based on factors such as education,
age, and the unemployment rate in the county where she lives. Tenn. Code Ann. § 50-6-
207(3)(B). These additional benefits are referred to as “increased award” or “increased
benefits.”
If an employee qualifies for increased benefits, but the trial court finds the
employee’s case to be “extraordinary” under section 50-6-242(a)(2) and concludes that
limiting the injured worker to the increased benefits would be inequitable considering the
totality of the circumstances, the trial court can award benefits not to exceed 275 weeks.
However this type of award has additional requirements: (1) the employee’s medical
impairment rating is 10% or higher; (2) the authorized treating physician certifies that the
employee “no longer has the ability to perform the employee’s pre-injury occupation” due
to “permanent restrictions on activity” caused by the work accident; and (3) at the time of
trial, the employee is earning less than 70% of his or her pre-injury average weekly wage
or salary. Tenn. Code Ann. § 50-6-242(a).
In the alternative, if a trial court finds that the work injury “totally incapacitates the
employee from working at an occupation that brings the employee an income,” it can award
the employee permanent total disability benefits. Tenn. Code Ann. § 50-6-207(4); Batey
3
v. Deliver This, Inc., 568 S.W.3d 91, 97 (Tenn. 2018).
Here, the Court must compare the differing opinions of the vocational experts. Mr.
Galloway based his opinion on data that has not been significantly updated since 1991.
Ms. Weiss testified that the health filed has changed, leading to remote positions for those
with nursing backgrounds.
Further, Mr. Galloway did not think that Ms. Satterfield could perform keyboarding,
noting portions of the FCE that were not included in the FCE Summary of Findings, and
were not adopted by Dr. Brady. In fact, in response to the question, “Would she have
difficulty working at a computer,” Dr. Brady said, “I don’t believe so.” The fact that Dr.
Brady thinks Ms. Satterfield could do computer work supports Ms. Weiss’s opinion that
work is available that she can perform.
Ms. Satterfield is entitled to increased benefits because she did not return to work
at the conclusion of her initial compensation period. She would also qualify for benefits
based on her age, but not for limited education or the unemployment rate in the county
where she lives. The Court now turns to her entitlement to extraordinary relief.
To qualify for extraordinary relief, she must have a rating of ten percent, a
physician’s certification form, and be making less than seventy percent of her pre-injury
salary. In the first Compensation Order, the Court deemed Ms. Satterfield to have a
combined rating of twelve percent. Dr. Brady completed a physician’s certification form
stating Ms. Satterfield is unable to return to her pre-injury employment. Ms. Satterfield
has not worked since leaving Smoky Mountain, so she has no salary.
Considering those criteria, the Court must determine if it would be inequitable to
limit Ms. Satterfield to increased benefits. Ms. Satterfield has substantial restrictions, and
her employment opportunities are significantly limited. While Ms. Weiss did not provide
a percentage of vocational disability, it would likely be high. Ms. Weiss referenced ten
possible jobs that Ms. Satterfield could perform. Ms. Weiss was unable to say Ms.
Satterfield could perform all ten jobs. Rather, she said that that based on her experience in
vocational rehabilitation, she could say that Ms. Satterfield could perform some of those
jobs due to her nursing education and experience. So, while Ms. Satterfield is not
permanently and totally disabled, she established by clear and convincing evidence it
would be inequitable to limit her to increased benefits alone, since she has no real job
possibilities.
The Court holds that she is entitled to 275 weeks of benefits, which equates to
$188,397.00.
Turning to permanent total disability benefits, Ms. Satterfield has some substantial
restrictions. While the Court acknowledges that her employment opportunities are
4
significantly limited, they are not non-existent. Bolstered by Dr. Brady’s testimony, the
Court agrees with Ms. Weiss that based on Ms. Satterfield’s educational background and
experience, some jobs exist that she could perform within her assigned restrictions.
Therefore, she does not qualify for permanent total disability benefits. 3
IT IS, THEREFORE, ORDERED as follows:
1. Smoky Mountain Home and Health and Hospice shall pay Ms. Satterfield 275
weeks of benefits at the stipulated compensation rate of $685.08, for a total of
$188,397.00. Attorney Roberto is entitled to a fee of twenty percent of Ms.
Satterfield’s award, which equates to $37,679.40.
2. Ms. Satterfield continues to be entitled to reasonable, necessary, and related medical
treatment under the initial Compensation Order.
5. Smoky Mountain Home Health & Hospice shall pay the $150.00 filing fee to the
Clerk of the Court of Workers’ Compensation Claims within five business days.
Smoky Mountain shall complete and file an SD2 documenting the conclusion of
this case within ten days of the date this order becomes final. Unless appealed, this
order becomes final thirty days after the date of issuance.
ENTERED June 30, 2023.
_____________________________________
JUDGE LISA A. LOWE
Court of Workers’ Compensation Claims
3
Smoky Mountain filed a Motion for Summary Judgment, but the Court held it in abeyance. Since the
Court determined that Ms. Satterfield is not eligible for permanent total disability benefits, this issue need
not be decided.
5
APPENDIX
Exhibits:
1. Deposition Transcript of Dr. William Kennedy
2. Deposition Transcript of Dr. Paul Brady
3. Deposition Transcript of Dr. Harold Moses
4. Vocational Report of Michael Galloway
5. Vocational Report of Michelle McBroom Weiss
6. Medical Records with Table of Contents
a. Vanderbilt MS Center
b. Family Care Specialists
c. AFC Urgent Care
d. C-30A Final Medical Report of Dr. Paul Brady
e. Knoxville Heart Group
f. UT Medical Center
g. Vanderbilt Neurology
h. Tennessee Orthopaedic Clinic
i. Vanderbilt University Medical Center
j. Fort Sanders Regional Medical Center
Marked for Identification Purposes Only:
7. Application for CareBridge Health Position
Technical record:
1. Petition for Benefit Determination, November 8, 2019
2. Dispute Resolution Statement
3. Petition for Benefit Determination, November 17, 2020
4. Dispute Certification Notice, December 14, 2020
5. Compensation Order
6. Petition for Benefit Determination, October 7, 2022
7. Dispute Certification Notice, December 7, 2022
8. Hearing Request
9. Scheduling Order
10. Employer’s Motion for Summary Judgment
11. Employer’s Statement of Undisputed Facts
12. Notice of Filing of Michael Galloway’s Rule 72 Declaration
13. Employee’s Response to Employer’s Motion for Summary Judgment
14. Employee’s Statement of Material Facts
15. Employee’s Response to Employer’s Statement of Undisputed Facts
16. Order Holding Summary Judgment Motion in Abeyance
6
17. Employee’s Additional Issues
18. Employer’s Additional Issues
19. Dispute Certification Notice, May 10, 2023
20. Notice of Filing Transcript of William Kennedy, MD’s Second Deposition
21. Notice of Filing Transcript of Paul Brady, MD’s Deposition
22. Employee’s Pre-Compensation Hearing Statement, Witness and Exhibit List
23. Employer’s Witness and Exhibit List
24. Employer’s Trial Brief
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on June 30, 2023.
Name Mail Email Service sent to:
Timothy Roberto X troberto@brownandroberto.com
Employee’s Attorney
Tiffany B. Sherrill, X tbsherrill@mijs.com
Employer’s Attorney
__________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
7
Compensation Order Right to Appeal:
If you disagree with this Compensation Order, you may appeal to the Workers’
Compensation Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims within thirty calendar days of the date the
Compensation Order was filed. When filing the Notice of Appeal, you must serve a copy
upon the opposing party (or attorney, if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing the Notice of Appeal. Payments can be made in-person at any Bureau office
or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an
Affidavit of Indigency (form available on the Bureau’s website or any Bureau office)
seeking a waiver of the filing fee. You must file the fully-completed Affidavit of Indigency
within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing
fee or file the Affidavit of Indigency will result in dismissal of your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. The Court Clerk
will prepare the technical record and exhibits for submission to the Appeals Board, and you
will receive notice once it has been submitted. If no court reporter was present at the hearing,
you may request from the Court Clerk the audio recording of the hearing for a $25.00 fee.
A licensed court reporter must prepare a transcript, and you must file it with the Court Clerk
within fifteen calendar days of filing the Notice of Appeal. Alternatively, you may file a
statement of the evidence prepared jointly by both parties within fifteen calendar days of
filing the Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of the testimony presented at the hearing. The Workers’ Compensation
Judge must approve the statement of the evidence before the record is submitted to the
Appeals Board. If the Appeals Board must review testimony or other proof concerning
factual matters, the absence of a transcript or statement of the evidence can be a significant
obstacle to meaningful appellate review.
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. You have fifteen
calendar days after the date of that notice to file a brief to the Appeals Board. See the Rules
governing the Workers’ Compensation Appeals Board on the Bureau’s website
If neither party timely files an appeal with the Appeals Board, the trial court’s Order will
become final by operation of law thirty calendar days after entry. Tenn. Code Ann. § 50-6-
239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.