SC court awards Lowe's employee workers' comp disability benefits
Articles / Publications
Employee disabilities are becoming a common issue that employers must address. Short- and long-term disability plans employers often make available to employees, the Americans with Disabilities Act (ADA), and the varying definitions in state workers' compensation statutes can create difficult decisions for employers. The South Carolina Supreme Court recently issued a decision on disabilities in the workers' comp context. Read on to see how the court addressed the issue.
Background
In September 2010, Henton T. Clemmons, Jr., a Lowe's employee, was assisting a customer when he slipped and fell, severely injuring his back. He visited neurological specialist Dr. Randall Drye and was diagnosed with a herniated disk, which caused severe spinal cord compression and required immediate surgery. Drye removed Clemmons' herniated disk and fused his C5 and C7 vertebrae by screwing a rod into his spine. After the surgery, Clemmons underwent extensive inpatient and outpatient physical rehabilitation. However, he continued to experience pain in his neck and back as well as difficulty maintaining his balance and walking.
Clemmons filed a workers' comp claim for medical expenses and temporary total disability benefits. Lowe's admitted that he had suffered a compensable injury in the course of his employment and agreed to pay benefits until he reached maximum medical improvement (MMI) or returned to work.
In June 2011, Drye determined that Clemmons had reached MMI. In accordance with AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, he assigned Clemmons a whole-person impairment rating of 25% based on his cervical spine injury, which converted to a 71% regional impairment to his spine. Drye also determined that Clemmons could return to work at Lowe's with certain permanent restrictions. The restrictions prohibited Clemmons from standing or walking for more than an hour at a time, climbing stairs, reaching overhead repetitively, and lifting more than 30 pounds. A few months later, Lowe's agreed to accommodate his restrictions and permitted him to return to work as a cashier.
In June 2012, Drye conducted a follow-up evaluation and reached the same conclusion: Clemmons had reached MMI and required permanent work restrictions. Thereafter, Lowe's requested a hearing before the South Carolina Workers' Compensation Commission (WCC) to determine whether Clemmons was owed permanent disability benefits.
Before the hearing, Clemmons visited a number of medical professionals for additional opinions regarding his condition. Physical therapist Tracy Hill assigned him a 36% whole-person impairment rating and a 91% regional impairment rating for his back under the AMA Guides. Dr. Leonard Forrest of Southeastern Spine Institute assigned him a 40% whole-person impairment rating, which translated to a 99% regional impairment to his back. In addition to the AMA Guides impairment ratings, Clemmons presented testimony from general practitioner Dr. Gal Margalit, who opined that, to a reasonable degree of medical certainty, Clemmons had lost more than 50% of the functional capacity of his back.
At the hearing, Clemmons argued he was entitled to permanent total disability (PTD) benefits because he had lost more than 50% of the use of his back based on the consensus among the medical experts who examined him. On the other hand, Lowe's argued that Drye's 25% whole-person rating and Clemmons' return to work indicated that he had not lost more than 50% of the use of his back. Thus, Clemmons was entitled only to permanent partial disability (PPD) benefits.
A commissioner determined that Clemmons was not permanently and totally disabled, finding he sustained an injury to his back of only 48% and was limited to an award of PPD benefits. The full WCC affirmed the commissioner's decision in its entirety.
The court of appeals also affirmed the decision, holding the WCC's factual findings were supported by substantial evidence. The South Carolina Supreme Court agreed to review the case to determine whether Clemmons' ability to work affected his entitlement to disability benefits under the South Carolina Workers' Compensation Act's scheduled-member statute (an amount based on the number of weeks set forth in the statute-i.e., the schedule-and the compensation rate calculated from the employee's average weekly wage).
Court's decision
The court was faced with two issues: one procedural and one substantive. The procedural issue dealt with whether there was substantial evidence in the record as a whole to support the WCC's decision (i.e., the substantial evidence test used in administrative hearings and appellate reviews) or whether there was an error of law. The court may not substitute its judgment in place of the agency's judgment regarding the weight of evidence on factual questions. However, the court may reverse or modify the WCC's decision if it is affected by an error of law or is clearly erroneous in light of substantial evidence in the record as a whole.
Clemmons argued that the court of appeals erred in finding the WCC's order was supported by substantial evidence. Specifically, he contended that all the medical evidence in the record showed he suffered more than a 50% loss of use of his back, which entitled him to PTD benefits, not PPD benefits. The court looked at the relevant portion of the scheduled-member statute:
In cases included in the following schedule, the disability in each case is considered to continue for the period specified and the compensation paid for the injury is as specified: . . . In cases where there is [50%] or more loss of use of the back[,] the injured employee shall be presumed to have suffered total and permanent disabilityand [will be] compensated under Section 42-9-10(B). The presumption set forth in this item is rebuttable.
S.C. Code Ann. § 42-9-30 (2015).
In reviewing the statutory language, the court noted that although a claimant's degree of impairment is usually a question of fact for the WCC, the issue becomes a question of law for the court if all the evidence points to one conclusion or the WCC's findings are based on surmise, speculation, or conjecture.
In assessing the entire record, the court noted that the WCC's conclusion regarding Clemmons' loss of use of his back was not supported by substantial evidence in the record. Specifically, there was no evidence that he suffered anything less than a 50% impairment to his back. Every doctor and medical professional who assigned an AMA Guides impairment rating, including Drye, whom the WCC relied on, indicated that Clemmons lost more than 70% of the use of his back.
Once the court determined there was not substantial evidence to support the lower court's finding, it made its own decision on how the law should be interpreted. The court believed there was no evidence to support the WCC's finding of a 48% impairment rating. Although there was medical evidence that Clemmons' whole-person impairment was less than 50%, the issue was not impairment to the whole body. Instead, the issue was the loss of use of a specific body part-Clemmons' back. All the medical evidence in the record pointed to one conclusion: Clemmons suffered an impairment to his back that was greater than 50%. Therefore, the court held that he had lost more than 50% of the use of his back and was presumptively permanently and totally disabled.
Further, the court held that based on the scheduled-member statute, it had not squarely addressed whether a return to employment can rebut the presumption of permanent and total disability. The court ultimately ruled that the mere fact that Clemmons returned to work was insufficient to defeat the presumption of permanent and total disability for the loss of use of his back. Moreover, the court determined that allowing an employee's ability to work, by itself, to rebut the presumption would undermine the established principle that the scheduled-member statute is separate and distinct from the general disability statute. Importantly, the court went on to observe that allowing an employee's ability to work to rebut the presumption of total and permanent disability would have the undesirable effect of discouraging people from returning to the workforce.
Finally, the court noted that it was incorrect to say Clemmons fully "returned to work." While it is true he returned to his job as a cashier, his duties were significantly reduced because of his condition. The court wrote that a person wanting to work and being willing to accept a less-demanding position to be able to work should be commended, not used to deny him disability benefits. Therefore, the court held that evidence of subsequent employment is insufficient by itself to rebut the presumption of permanent and total disability under the workers' comp statute.
Lessons for employers
This decision likely will drive workers' comp premiums and costs higher at a faster rate. In this case, the scheduled-member injury payout was required, and the court allowed a finding of permanent and total disability despite the employee returning to work.
Stay involved with your workers' comp cases. Do not simply turn them over to an adjuster to handle. Work with the adjuster to provide as much information-expert and otherwise-as possible to show that the employee did not suffer a loss of wages as a result of a work-related injury.
For more information on the BLR, click here. For more information on the South Carolina Employment Law Letter, click here.
