The South Carolina Supreme Court recently ruled that a retail employee was entitled to a permanent and total disability (PTD) award despite being able to return to work at his old position.

Gary Christmas

Under South Carolina workers’ compensation statutes, there are two ways an injured employee may be entitled to collect benefits for total disability.

Under South Carolina Code Section 42-9-10, he can be entitled to a PTD award if he has a complete "incapacity for work." Under Section 42-9-30, an injured worker may be entitled to PTD if he has suffered the functional loss of use of at least 50% of the injured body part.

Background

In September 2010, Henton Clemmons Jr. was working as a cashier at Lowe’s Home Improvement Center when he slipped and fell while assisting a customer. The fall severely injured his back. A neurological specialist determined that Clemmons had a herniated disc and needed immediate surgery.

The surgeon removed the disc and fused the C5 and C7 vertebrae, screwing a rod into Clemmons' spine. This surgery was followed by extensive physical rehabilitation. Despite these treatments, Clemmons still had difficulty walking and balancing, and continued to have pain in his back and neck.

Clemmons filed for workers’ compensation benefits, and Lowe’s admitted the claim. It agreed to pay temporary total disability (TTD) benefits until Clemmons reached maximum medical Improvement (MMI) or returned to his position.

In June 2011, his doctor concluded that Clemmons had reached MMI and determined a whole-person impairment rating of 25%, which converted to a 71% regional impairment to his spine.

The doctor also concluded that Clemmons could return his job, with specific permanent restriction. The employer agreed to these restrictions, and Clemmons went back to his cashier position.

One year later, the doctor reached the same MMI conclusion after a conducting a follow-up evaluation. The employer then requested a hearing in front of the commission to determine if any permanent disability benefits were owed to Clemmons. There were multiple evaluations by other medical professionals prior to the hearing and all concluded that Clemmons had suffered greater than 50% regional impairment to the back, with a more than 50% loss of back function.

The ruling

The commission ruled that Clemmons had not suffered PTD, since there was only a 48% loss of back function. They ruled that he was entitled only to permanent and partial disability (PPD). Clemmons filed an appeal, and the Court of Appeals affirmed the commission’s decision.

However, the Supreme Court disagreed. The justices found that under Section 42-9-30, Clemmons did indeed suffer a 50% loss of back function based on the medical evidence he presented.

The decision leaves employers plenty of room when it comes to rebutting the Section 42-9-30 presumption, although the outcome was very fact-specific. The outcome seemed to turn on the fact that Lowe’s did not offer any rebuttal evidence other than wage loss, turning the case in favor of Clemmons.

The court’s decision also leaves open the possibility of employers using medical opinion testimony from its own experts, lay witness testimony or deposing the worker's experts in order to put up robust cases that can meet the burden.

Gary Christmas is a partner with Howell & Christmas, a Charleston, South Carolina, law firm that represents workers’ compensation claimants.