Permanent Disability Under Scheduled-Member Statute Isn’t Barred by Gainful Employment

The scheduled-member statute of the South Carolina Workers’ Compensation Act spells out the number of weeks’ worth of compensation to be paid claimants based on the “member” or function claimant has lost. For example, a plaintiff who loses a thumb will be entitled to a total of 65 weeks for total loss. A plaintiff who suffers loss of a leg will be entitled to 195 weeks’ worth of compensation. The list goes on. power

In a recent case before the South Carolina Supreme Court, justices were asked to consider whether a claimant’s ability to hold gainful employment could, on its own, preclude a determination of permanent disability per the scheduled-member law. The court answered: No.

According to court records, plaintiff was employed at a large chain hardware store when, as he was helping a customer, he fell on the concrete floor and suffered severe injury to his back.

Soon after, plaintiff saw a specialist who diagnosed him with severe spinal cord compression that necessitated surgery immediately. After the intensive surgery, plaintiff needed intense therapy. He continued to suffer serious pain in both his back and neck and struggled with walking and with balance.

He filed a claim for workers’ compensation for medical expenses and temporary total disability benefits. Employer conceded this was a compensable injury that occurred in the course of employment, and agreed to pay temporary total disability benefits until plaintiff reached maximum medical improvement or else came back to work.

Nearly a year later, employer’s doctor found plaintiff had reached maximum medical improvement and gave him a total impairment rating of 25 percent, along with a more than 70 percent impairment score to his spine. The physician concluded plaintiff could work with restrictions. A couple months later, the store offered to accommodate the worker in a new role as a cashier.

In a checkup a year later, the doctor reached the same findings as before.

At that point, attorneys for the store sought a hearing before the commission to determine if the worker was owed any permanent disability benefits.

Prior to that hearing, plaintiff sought the opinion of several healthcare professionals. A physical therapist assigned him a whole-person disability rating of nearly 40 percent and a spinal injury rating of more than 90 percent. At the hearing, plaintiff presented this and an opinion from two doctors who assigned him whole-person ratings of more than 40 percent and spinal impairment ratings of 99 percent. The consensus of all his medical experts was that he’d lost more than 50 percent of the use of his back and was entitled to permanent total disability. However, the employer argued the worker hadn’t lost more than 50 percent of his back function and that he was only entitled to permanent partial disability payments.

A single commissioner determined plaintiff was not totally and permanently disabled, and noted his continued employment. The court of appeals affirmed this, but the state supreme court reversed.

In this case, the state supreme court found the commissions’ findings with respect to plaintiff’s loss of use is not supported by the substantial evidence on record. Specifically, there wasn’t any evidence plaintiff had suffered less than a 50 percent loss of use of his back. Even the employer’s doctor opined the same. There was nothing in the record to support the commission’s finding of a 48 percent impairment rating of plaintiff’s back.

Further, the fact that plaintiff was gainfully employed – or able to be gainfully employed – did not alter this fact, and thus, he was entitled to permanent total disability payments.

Contact the Carolina workers’ compensation lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Clemmons v. Lowe’s Home Centers, March 8, 2017, South Carolina Supreme Court

More Blog Entries:

Attendant Care Service Benefit in NC Upheld When There is Competent Evidence to Support It, March 13, 2017, Rock Hill Workers’ Compensation Lawyer Blog

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