SC Workers’ Compensation – Impairment Ratings – Which Body Part Affected

Feb 25, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals case demonstrates the importance of which body part is affected in terms of seeking maximum compensation for an injured worker. Here, there was the distinction between the shoulder and upper extremity (arm). In other cases, the exact body part can make a huge difference in the ultimate award. For example, an injury to the wrist can arguably affect the hand (185 weeks) or the upper extremity (220 weeks). Better make sure your attorney  knows how to best argue which body part(s) are now limited in order to secure the best award possible.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Debra M. Therrell, Appellant,

v.

Jerry’s Inc. d/b/a Jerry’s Travel Center, Employer, and American Alternative Insurance Company, Carrier, Respondents.

Appeal From Clarendon County
 Thomas W. Cooper, Jr., Circuit Court Judge

Opinion No. 3843
Heard June 9, 2004 – Filed July 12, 2004

AFFIRMED

Robert David McKissick, and William P. Hatfield, both of Florence, for Appellant. 

Paul Linwood Hendrix, of Spartanburg, for Respondents.

STILWELL, J.:  In this workers’ compensation case, Debra M. Therrell appeals the circuit court’s order affirming the full commission’s determination that the injuries to her right upper extremity are compensable as an injury to her arm rather than to her shoulder.  We affirm. 

While employed as a waitress at Jerry’s Travel Stop in Clarendon County, Therrell slipped and fell, injuring her right arm and shoulder. 

At the hearing before the single commissioner, Therrell described the condition of her right arm and shoulder following the accident.  She testified she had difficulty performing everyday tasks such as washing clothes, operating a vacuum cleaner, or getting dressed.  She was unable to lift things above her shoulder level, requiring her to rely upon her co-workers to assist her in doing the heavier parts of her job.  Therrell described experiencing “burning,” “grinding,” and “popping” sensations in her right shoulder that were aggravated by repetitive activities.  She also testified she has reduced strength in her right hand.  Even though she was right-hand dominant prior to the accident, she testified her injury required her to rely primarily on her left hand and arm for tasks associated with her job. 

The single commissioner concluded Therrell’s injury to her right upper extremity resulted in permanent partial disability of twenty percent pursuant to S.C. Code Ann. § 42-9-30 (Supp. 2003), the section prescribing compensation for specific, scheduled body parts.  Therrell appealed the award to the full commission, arguing inter alia the commissioner erred in concluding the injury was to her arm rather than her shoulder.  The full commission affirmed the award of the single commissioner, adopting her findings of fact, but increasing Therrell’s permanent disability rating from twenty percent to thirty percent.  The circuit court affirmed the full commission’s findings. 

Our review of a decision of the workers’ compensation commission is governed by the Administrative Procedures Act.  Lark v. Bi-Lo, Inc., 276 S.C. 130, 133, 276 S.E.2d 304, 305 (1981).  Although this court may not substitute its judgment for that of the full commission as to the weight of the evidence on questions of fact, we may reverse where the decision is affected by an error of law.  S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2003).

The question before us is whether the commission properly classified Therrell’s injury compensable as a scheduled body member pursuant to South Carolina Code section 42-9-30 (Supp. 2003).[1] The answer is in the affirmative. 

Section 42-9-30 sets forth a schedule prescribing the amount of compensation to be awarded for loss of various, specifically enumerated body parts and organs.  Compensation for injuries to body parts not covered by the statute has been prescribed by the workers’compensation commission under Regulation 67-1101.  For all other unscheduled injuries, section 42-9-30(20) provides:  “For the total or partial loss of, or loss of use of, a member, organ or part of the body not covered herein and not covered under §§ 42-9-10 or 42-9-20, sixty-six and two thirds of the average weekly wages not to exceed five hundred weeks.” 

In this case, the single commissioner awarded compensation to Therrell under section 42-9-30(13), which provides: “For the loss of an arm, sixty-six and two-thirds percent of the average weekly wages during two hundred twenty weeks.”  Therrell claims this was error.  She asserts the injury was to her shoulder, not to her arm.  Therefore, because the shoulder is not among the body parts listed in section 42-9-30, Therrell argues her disability was instead governed by the catch-all provision of 42-9-30(20) which would potentially allow for a longer period of compensation—up to 500 weeks rather than the maximum of 220 weeks scheduled for the loss of an arm. 

Therrell asserts that the cases of Gilliam v. Woodside Mills, 312 S.C. 523, 435 S.E.2d 872 (Ct. App. 1993), overruled on other grounds, 319 S.C. 385, 461 S.E.2d 818 (1995), and Roper v. Kimbrell’s of Greenville, Inc., 231 S.C. 453, 99 S.E.2d 52 (1957), lend support to her position.  Her reliance on these cases is misplaced.  In Gilliam, the issue before the court was whether the claimant suffered injuries to more than one part of the body.  The compensable accident damaged Gilliam’s right knee and hip, requiring a total hip replacement.  The court determined these were multiple injuries justifying an award for permanent and total disability pursuant to section 42-9-10 (Supp. 2003).  In contrast, Therrell offered no evidence that she sustained more than one injury. 

The Roper court affirmed an award of loss of use to both arms, even though there was no direct injury to the arms themselves.  The Roper court held the determination was an issue of fact, stating nothing “in the statute relating to workmen’s compensation suggests restriction of their meaning to such total or partial loss of use as has resulted from a direct injury to the member itself.”  Roper, 231 S.C. at 456, 99 S.E.2d at 54. 

In deciding whether to award compensation as for a scheduled injury as opposed to a non-scheduled general disability, our supreme court has held:

The commission may award compensation to a claimant under the scheduled loss statute rather than the general disability statutes so long as there is substantial evidence to support such an award.

An award under the scheduled loss statute, however, is premised upon the threshold requirement that the claimant prove a loss, or loss of use of, a specific “member, organ, or part of the body.”

Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555-56, 393 S.E.2d 172, 173 (1990) (citation omitted).

Based on our review of the record, we conclude there is substantial evidence to support the commission’s finding that Therrell’s injury was properly compensable under section 49-2-30 as a scheduled loss to an arm.  Therrell’s own testimony indicates her injury affected the use of her right arm, not her shoulder alone.  She described her injury as curtailing her ability to use her right hand and arm—essentially requiring her to become left-hand dominant rather than right-hand dominant as she had been before.  Moreover, we note Therrell’s treating physician rated her injury as an impairment of the “right upper extremity.” 

For these reasons, we find Therrell’s injury was properly classified as the “loss of use of an arm” under section 42-9-30(13).  The ruling of the circuit court affirming the commission is therefore

AFFIRMED.

HEARN, C.J., and CURETON, A.J., concur.

SC Workers’ Compensation – Permanent and Total Disability – Loss of Earning Capacity – Vocational Rehabilitation

Feb 25, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals case discusses the complexities of proving permanent and total disability in worker’s compensation cases. Here, the injured worker had the critical injury affecting at least two body parts, had attended Vocational Rehabilitation, and even had a vocational expert report. Nevertheless, he was denied the ultimate award and given a disability rating to his back. These cases, second only to physical brain injury in complexity, require an experienced workers’ compensation attorney. First, you must prove that more than one body part has been affected by your injury. If not, you are limited to compensation based on Section 42-9-30. Secondly, in order to even start the analysis under the general disability statute of Section 42-9-10, you must consult a vocational expert to prove a loss of earning capacity. Medical ratings and opinions by a treating physician are legally insufficent. If found to be permanently and totally disabled, you are entitled by law to 500 weeks of compensation (minus whatever has been paid to date) plus lifetime medical benefits causally related to your injury. As you can see, this award is quite substantial but difficult to reach. Better make sure your attorney is experienced in workers’ compensation cases and is competent to handle permanent and total disability cases. There is simply too much at stake to risk an inexperienced lawyer.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Franklin Hutson, Appellant.

v.

S.C. State Ports Authority, Employer, and State Accident Fund, Carrier, Respondents.

Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge

Opinion No. 4737
Submitted May 3, 2010 – Filed September 8, 2010

AFFIRMED IN PART AND REMANDED

Thomas M. White, of Goose Creek, for Appellant.

Margaret Mary Urbanic, of Charleston, for Respondents.

THOMAS, J.:  This is a workers’ compensation case.  At issue in this appeal is the award to the claimant, Franklin Hutson, following his attainment of maximum medical improvement (MMI), that limited his recovery to correspond with a thirty-percent loss of use to his back.  We affirm in part and remand this matter to the commission for further proceedings.[1]

FACTS AND PROCEDURAL HISTORY

In 1997, Hutson began working as a crane operator for the State Ports Authority (SPA).  He had extensive prior experience in this line of work and attained an average weekly salary of $1,730.  On October 21, 2004, Hutson was injured while attempting to remove a container from a ship.  SPA admitted the injury and paid Hutson benefits.

In December 2004, Hutson began treatment with Dr. Stovall, an orthopaedic surgeon.  On June 27, 2005, Dr. Stovall determined Hutson reached MMI and discharged him, noting that surgical intervention would not help him.  Dr. Stovall assigned Hutson an impairment rating of ten percent of the whole person for his injury.  He also noted that Hutson’s permanent work restrictions would include lifting no more than thirty-five pounds on an occasional basis and no more than twenty-five pounds on a frequent basis, but otherwise opined that Hutson “should be able to carry on a moderate level of activity at medium work capacity.”

On July 29, 2005, Hutson filed a request before the South Carolina Workers’ Compensation Commission seeking continuation of his benefits.  Hutson maintained he was permanently and totally disabled because of the effect of his injury on his back and right leg.  On August 9, 2005, SPA filed a response denying Hutson was permanently disabled and admitting that only Hutson’s back injury was compensable.  On August 31, 2005, the State Accident Fund, on behalf of SPA, filed a Form 21 in which it sought to stop compensation on the ground that Hutson had reached MMI.  The Fund also requested credit for overpayment of temporary total compensation.

When the matter first came before the single commissioner, Hutson had not yet completed the training at the South Carolina Vocational Rehabilitation Center that his vocational consultant had recommended.  The matter was continued pending either Hutson’s completion of the program or a determination that he was unable to undergo further training.

The single commissioner heard the matter on August 1, 2006.  Hutson testified he was forty-four years old and had finished high school.  He further testified he had studied business management, culinary arts, and food sanitation at Trident Tech, but never received a degree or certificate.  For most of his adult life, he had worked as a crane operator, and the only other significant experience he had was work as a rigger.  He was unable to return to either line of work under the restrictions that were imposed as a result of his injury.  Hutson described at length how the pain he experienced from his injury affected his day-to-day living.  He acknowledged that when he was twelve, his hand was injured when someone shot him with a high-powered rifle.  The accident resulted in a loss of coordination and several unsuccessful surgeries, but did not affect his ability to perform his work as a crane operator before his accident.

Hutson also testified that, as his vocational consultant had recommended, he made several visits to Vocational Rehabilitation, but was not offered any type of education, training, or other help.  Although Hutson estimated he made three visits, the single commissioner found the program was commenced and completed on October 9, 2005.  Hutson stated he then made unsuccessful applications for positions in a variety of settings, including a grocery store, a plumbing company, and a landscaping business.

In response to questions from his attorney about his future plans, Hutson stated he wanted to start a business of his own and was looking into a restaurant business.  He testified he had studied culinary arts and other food-related courses at Trident Tech, and his family had been in the restaurant business “all their lives.”  He further noted that cooking, a pursuit that he enjoyed, was “not as strenuous as manual labor,” and surmised he could make a decent salary if he could supervise others to work for him.  The single commissioner himself questioned Hutson about his plans to pursue a career in the food service industry, asking Hutson if he was sure he could run a restaurant.  Hutson answered he was “sure” he could, but was unable to say how much money he could earn.  On redirect examination, however, Hutson testified that one reason he decided on a plan to open a restaurant was to try to move up to a higher income bracket.

By order dated January 11, 2007, the single commissioner found Hutson had reached MMI on June 27, 2005.  The commissioner further found Hutson failed to prove a loss of earning capacity to qualify for compensation under the general disability statutes; however, he found Hutson suffered a thirty-percent loss of use to his back and awarded compensation for a scheduled loss.  In addition, the Fund was awarded a credit for overpayment of temporary total benefits.

Hutson moved for reconsideration.  The single commissioner held a second hearing, but declined to alter his ruling.  Hutson appealed the single commissioner’s decision to the appellate panel, which, in a 2-1 vote, affirmed the single commissioner.  Hutson then petitioned for judicial review.  Following a hearing on March 11, 2008, the court of common pleas affirmed the appellate panel’s order.[2]

ISSUES

STANDARD OF REVIEW

“In workers’ compensation cases, the Full Commission is the ultimate fact finder.”  DeBruhl v. Kershaw County Sheriff’s Dep’t, 303 S.C. 20, 24, 397 S.E.2d 782, 785 (Ct. App. 1990).  “Our standard of review requires that we determine whether the circuit court properly found the Commission’s findings of fact are not supported by substantial evidence in the record.”  Doe v. S.C. Dep’t of Disabilities and Special Needs, 377 S.C. 346, 349, 660 S.E.2d 260, 262 (2008).  “While a finding of fact of the commission will normally be upheld, such a finding may not be based upon surmise, conjecture, or speculation, but must be founded on evidence of sufficient substance to afford a reasonable basis for it.”  Edwards v. Pettit Constr. Co., 273 S.C. 576, 579, 257 S.E.2d 754, 755 (1979).  “Under the scope of review established in the APA, this Court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law.”  Bass v. Isochem, 365 S.C. 454, 467, 617 S.E.2d 369, 376 (Ct. App. 2005).

LAW/ANALYSIS

A.   Evidence of wage loss

In his Order, the single commissioner noted that had Hutson not made assurances that he was capable of running a restaurant, he would have been found to be permanently and totally disabled.  On appeal, Hutson does not take issue with the denial of compensation for total disability; however, he asserts he is entitled to recover for partial disability.  We disagree.

Under the South Carolina Workers’ Compensation Act, “a claimant may proceed under § 42-9-10 or § 42-9-20 to prove a general disability; alternatively, he or she may proceed under § 42-9-30 to prove a loss, or loss of use of, a member, organ, or part of the body for which specific awards are listed in the statute.”  Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555, 393 S.E.2d 172, 173 (1990).[3]  “It is well-settled that an award under the general disability statutes must be predicated upon a showing of a loss of earning capacity, whereas an award under the scheduled loss statute does not require such a showing.”  Id.  A reversal of the finding that Hutson could not recover under section 42-9-20, then, would require a showing by Hutson that the record lacked substantial evidence to support the appellate panel’s determination that he failed to show a loss of earning capacity resulting from his injury.  We hold, however, that there was substantial evidence in the record to support the finding that Hutson was capable of running a restaurant and that this finding in turn precluded an award under section 42-9-20.

On appeal, Hutson contends the only evidence to support the finding that he could run a restaurant was his own testimony, which he describes as “speculative.”  He further argues the commissioner and the appellate panel disregarded the only expert evidence in the record, namely, the written statement of his vocational consultant.  We do not agree with these arguments.

First, as the South Carolina Supreme Court has stated:  “[W]hile medical testimony is entitled to great respect, the fact finder may disregard it if there is other competent evidence in the record.”  Tiller v. Nat’l Health Care Ctr. of Sumter, 334 S.C. 333, 340, 513 S.E.2d 843, 846 (1999).  We see no reason not to apply this rule to other expert testimony.

Moreover, we disagree with Hutson’s position that the vocational consultant’s opinion was the only expert assessment of his ability to work.[4] According to his notes, Dr. Stovall opined that Hutson “should be able to carry on a moderate level of activity at the medium work capacity” and assigned only weight-lifting restrictions.  In addition, on the advice of his attorney, Hutson consulted another physician, who indicated that Hutson could return to work on light duty.

We also agree with the circuit judge that Hutson’s testimony regarding his plans to work in the restaurant business was not speculative.  Hutson stated (1) he had studied culinary arts and food sanitation at Trident Technical College; (2) his family had been in the restaurant business for many years, so he was aware of the demands of the work and the initial investment necessary to invest in an establishment; (3) since his release from treatment he had been working on the restaurant project, researching locations, getting menu selections, and pricing equipment; and (4) he could perform in a supervisory capacity as well as work the register.  We do not believe that the fact that Hutson had never actually attempted to handle the day-to-day tasks of running a restaurant necessarily makes his statements speculative.  Cf. Sellers v. Pinedale Residential Ctr., 350 S.C. 183, 191-92, 564 S.E.2d 694, 699 (Ct. App. 2002) (rejecting the employer’s argument that evidence of the claimant’s future earnings was too speculative, that evidence consisting of (1) the claimant’s demonstrated interest, aptitude, and ability to become an electrician, (2) his stated ambition to become a master electrician, and (3) his demonstrated work ethic).

Finally, we concur in the single commissioner’s decision to emphasize the fact that the testimony about Hutson’s ability to work in a restaurant came from Hutson himself, who had the burden of proving his case.  Cf. Smith v. Michelin Tire Corp., 320 S.C. 296, 298, 465 S.E.2d 96, 97 (Ct. App. 1995) (affirming the denial of benefits for the claimant’s alleged psychological problems even though she received benefits for permanent partial disability for a physical injury and noting “[t]he claimant has the burden to prove such facts as will render the injury compensable”).  This emphasis seems especially appropriate considering the efforts by the single commissioner to allow Hutson to qualify or otherwise explain his testimony about his ability to pursue a career in the restaurant business.  Moreover, Hutson also admitted he drove himself to the hearing and took care of his household chores.  Although these admissions alone may not support a finding that he could manage a restaurant, they would not undermine it.

B.   Limitation of Hutson’s recovery to loss of use of his back

Hutson alleges error in the determination that his recovery should be limited to the loss of use of his back, pointing to statements by the single commissioner both during the hearing and in his order that he had intended to take into account his belief that Hutson’s injury affected his right leg as well as his back and the combination of the two injuries would enable Hutson to recover under section 42-9-20 as well as section 42-9-30.  As we have previously determined, the record has substantial evidence to support the appellate panel’s finding that Hutson did not prove a loss of earning capacity that would enable him to receive compensation benefits under section 42-9-20.  We agree with Hutson, however, that he may be entitled to additional compensation under section 42-9-30 for the symptoms he was experiencing with his leg after his accident.

Although “an award under general disability statutes must be predicated upon a showing of a loss of earning capacity, . . . an award under the scheduled loss statute does not require such a showing.”  Fields, 301 S.C. at 555, 393 S.E.2d at 173.  “An award under the scheduled loss statute, however, is premised upon the threshold requirement that the claimant prove a loss, or loss of use of, a specific ‘member, organ, or part of the body.’ ”  Id. at 556, 393 S.E.2d at 173 (quoting S.C. Code Ann. § 42-9-30(22) (Supp. 2009)).  Although most of the reported decisions concerning claims for more than one scheduled injury focus on whether the claimant is eligible to recover under one of the general disability statutes, the South Carolina Supreme Court has expressed its approval of awarding compensation for multiple scheduled losses under section 42-9-30.  See Lail v. Georgia-Pacific Corp. 285 S.C. 234, 236, 328 S.E.2d 911, 912 (1985) (reversing an award for loss of use of the hand and remanding the matter to the commission for factual findings regarding the percentage of loss of use of the thumb and third finger and referencing the “legislative plan providing scheduled amounts for loss of use of thumbs and fingers”).

In his Order, the single commissioner made a finding of fact that Hutson suffered radicular symptoms in his right leg that affected the functioning of the limb.  He reiterated this finding when, in commenting on Hutson’s assurances that he was capable of running a restaurant, he indicated that but for this testimony, he would have found Hutson to be permanently and totally disabled “with affects to the right leg.”  Given this finding, which neither the SPA nor the Fund has appealed, we hold Hutson has established at least a prima facie case for compensation for the injury to his leg pursuant to section 42-9-30 and remand the matter to the commission for further findings of fact on this matter based on the present record.  See Sigmon v. Dayco Corp., 316 S.C. 260, 262, 449 S.E.2d 497, 498 (Ct. App. 1994) (noting that only the commission is authorized to make findings of fact in workers’ compensation cases and remanding the matter to the commission for a determination anew based on the present record of the claimant’s right to workers’ compensation benefits).

C.   Remand

Finally, Hutson argues the court of common pleas should have remanded the matter to the commission for findings of fact regarding his current earning capacity or the extent of his injuries.  In view of our decisions to affirm the finding that he is not entitled to benefits under section 42-9-20 and to remand the issue of additional compensation for his leg injuries pursuant to section 42-9-30, we decline to address this issue.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an appellate court need not address remaining issues when its decision on a prior issue is dispositive).

CONCLUSION

We affirm the finding that Hutson failed to show a loss of earning capacity that would have entitled him to compensation under section 42-9-20 following his attainment of MMI.  We hold, however, Hutson may be entitled to additional compensation under section 42-9-30 for injuries to his leg and therefore remand this case to the commission for further findings of fact on this issue.

AFFIRMED IN PART AND REMANDED.

FEW, C.J, and PIEPER, J., concur.

[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  In her order, the circuit judge noted the single commissioner assigned a thirty-percent impairment to the “whole person.”  The single commissioner, however, found Hutson suffered a thirty percent loss of use of his back.

[3]  Section 42-9-10 of the South Carolina Code (1985 & Supp. 2009) describes various criteria that satisfy the requirements for a finding that a claimant is totally disabled and the method for computing the compensation to which a totally disabled claimant is entitled.  Section 42-9-20 of the South Carolina Code (1985) gives the method for computing compensation for partial disability.  In section 42-9-30 of the South Carolina Code (1985 & Supp. 2009), the legislature provides a detailed schedule of varying time periods of compensation for particular injuries.  This section was amended in 2007; however, the changes do not affect the merits of this appeal.

[4]  Hutson may have misinterpreted the vocational consultant’s opinion regarding his ability to work.  In his brief, he asserts that the vocational consultant indicated that “upon successful completion of a vocational training program, . . . his earnings would be between $5.15 and $6.50 an hour.”  The consultant actually stated that without a vocational rehabilitation plan, she was “of the opinion that Mr. Hutson will encounter very significant difficulty re-entering the competitive job market and will be relegated to at or near minimum wage ($5.15 – $6.50 per hour).”

SC Workers’ Compensation – Notice of Accident – Statute of Limitations

Feb 25, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals decision illustrates the critical importance of properly notifying an employer of a work-related accident and intention to pursue workers’ compensation benefits. Most people believe there is a two year statute of limitations to file a claim for benefits. While this one aspect of workers’ compensation law is accurate, there is also the statutory requirement that the employer be notified of an on-the-job accident as soon as possible but no later than ninety (90) days. Failure to follow either of these notices can doom an otherwise compensable claim. In this case, there is no question about the credibility of the injured worker. She was a longtime employee, and no one doubted her integrity. Nevertheless, because she failed to place her employer on formal notice of an accident/claim within those first 90 days, her claim was denied and never really had any chance. If you are involved in an accident on the job, we always advise you to immediately report same to your employer, even if you think you “will be alright.” Sometimes, the full extent of an injury does not become clear for several days or even weeks. If you do not report an accident immediately, you may not be able to seek benefits later. The best course is to consult an experienced workers’ compensation attorney as early as possible for advice. Even if you do not hire an attorney, early counseling and intervention can literally make the difference in securing benefits later for you and your family. Better make certain. There is too much at stake here to gamble.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Dorothy Hargrove, Appellant,

v.

Carolina Orthopaedic Surgery Associates, PA, Employer, and Hartford Fire Insurance Company, Respondents.

Appeal From York County
Lee S. Alford, Circuit Court Judge

Opinion No.  4695
Submitted December 1, 2009 – Filed June 7, 2010

AFFIRMED

Hyman S. Rubin, of Columbia, for Appellant.

James P. Newman, Jr., and Andrew E. Haselden, both of Columbia, for Respondents.

THOMAS, J.:  This is an appeal of a workers’ compensation case.  The single commissioner denied benefits and medical treatment to Dorothy Hargrove based on his determination that Hargrove failed to (1) meet the statutory notice requirement and (2) prove that the problems from which she suffered resulted from a workplace accident.  The appellate panel and the circuit court affirmed.  We affirm as well.[1]

FACTS AND PROCEDURAL HISTORY

Hargrove worked as a transcriptionist for Carolina Orthopaedic Surgery Associates, P.A., for over twenty years.  Before working for Carolina Orthopaedic, she worked twenty years as a clerk and transcriptionist for the York County Hospital.  She intended to retire in 2003, but delayed her retirement until the end of 2004 because an issue arose with the Social Security Administration about her correct date of birth.

In 2003, while Hargrove was at work, her chair hit a runner and turned over backwards, causing her to fall to the floor.  Although no one saw her fall, two other employees heard a noise when Hargrove’s chair fell over and they helped her get up.  Hargrove was embarrassed, shaken up, and sore, but continued to work that day.  Hargrove maintained she promptly reported the accident to Mary Elkins, her immediate supervisor.  Elkins, however, denied hearing Hargrove say she had fallen.

Hargrove first took samples of Vioxx and Bextra given to her by a technician at the office, but later consulted Dr. W. Scott James, a physician with Carolina Orthopaedic, when the medications failed to relieve her pain.  Before she saw Dr. James, Hargrove clocked out for her appointment, as she was required to do if her problems were not work-related.  Also, when she registered as a patient of Dr. James, Hargrove did not indicate her problems were work-related even though the form specifically requested this information.

Dr. James initially diagnosed Hargrove with bursitis; however, a subsequent M.R.I. revealed a moderate extruded disc fragment inferior to the L3-4, exerting “mass effect upon the right L4 nerve root,” a central herniation at L-S1, and a concentric disc bulge from L1 through L3.  Dr. James then referred Hargrove to Dr. Paul John Tsahakis, who performed a right L3-4 microendoscopic decompression.  Shortly before her surgery, Hargrove applied for short-term disability benefits from Shenandoah Life Insurance Company.  In addition to short-term disability, she also received five hundred sixty hours of donated sick time from other employees in the office.  Several months later, Dr. Tsahakis found Hargrove reached maximum medical improvement with an impairment rating of ten percent.  He also restricted her to working six hours per day.

In October 2004, Hargrove returned to work.  Carolina Orthopaedic anticipated Hargrove would retire soon and had already hired someone to take her place full time; however, it assigned her tasks that students would normally perform.  Hargrove continued to work until she retired at the end of 2004.  By her own admission, Hargrove never told anybody that she intended to file for workers’ compensation.  Furthermore, according to Elkins, Hargrove indicated that her back pain resulted from having to care for her invalid brother.  Elkins stated she first became aware that Hargrove was seeking workers’ compensation benefits in April 2005, when Carolina Orthopaedic received a subpoena for Hargrove’s medical records.

On August 8, 2005, Hargrove filed a Form 50, in which she stated the causative event took place September 1, 2003.  In its Form 51, Carolina Orthopaedic alleged that Hargrove’s claim “should be barred under § 42-15-20 [because] notice of injury was not given to the employer within ninety (90) days as required.”  In the form, Carolina Orthopaedic further stated it “reserves its right to assert any and all defenses available and applicable . . . as evidence may develop in the course of discovery.”

The single commissioner heard the matter on September 12, 2006.  By order dated and filed January 24, 2007, the single commissioner denied Hargrove’s claim for benefits, finding (1) Hargrove failed to meet the statutory requirement regarding notice to the employer of a workplace injury and (2) even if she had met the notice requirement, she failed to prove her current complaints resulted from her alleged workplace accident.  On May 18, 2007, the appellate panel affirmed the order of the single commissioner.

Hargrove petitioned the circuit court for judicial review of the matter.  Following a hearing on September 5, 2007, the circuit court issued an order affirming the appellate panel.  Hargrove unsuccessfully moved to alter or amend the judgment of the circuit court and then filed this appeal.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act establishes the standard for judicial review of decisions of the South Carolina Workers’ Compensation Commission.  Lark v. Bi-Lo, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981).  “[N]either this court nor the circuit court may substitute its judgment for that of the agency as to the weight of the evidence on questions of fact but may reverse if the decision if affected by an error of law.”  Lockridge v. Santens of Am., 344 S.C. 511, 515, 544 S.E.2d 842, 844 (Ct. App. 2001).

LAW/ANALYSIS

The decision to deny Hargrove workers’ compensation benefits, in which all prior tribunals that have adjudicated this matter concurred, was based on two independent grounds:  (1) Hargrove’s failure to give Carolina Orthopaedic timely notice of her workplace accident and (2) her failure to prove the conditions for which she sought compensation resulted from the accident.  If we affirm either of these grounds, we can also uphold the decision to deny workers’ compensation benefits.  See Weeks v. McMillan, 291 S.C. 287, 292, 518 S.E.2d 289, 292 (Ct. App. 1987) (“Where a decision is based on alternative grounds, either of which independent of the other is sufficient to support it, the decision will not be reversed even if one of the grounds is erroneous.”).  We base our affirmance of the denial of workers’ compensation benefits on the finding that Hargrove failed to prove that the problems for which she sought workers’ compensation benefits resulted from her accident.

I.  Form 51

Hargrove first argues that because Carolina Orthopaedic did not raise the issue of causation in its Form 51, it was unfair to deny her claim on that ground.  We disagree.

The South Carolina Administrative Regulations require an employer to “fully state its position and defenses, if any, replying to each specification in the [claimant’s] Form 50 or Form 52.”  S.C. Code Regs. 67-603B (Supp. 2009).  Failure by the employer to file the appropriate form “shall be deemed a general denial of liability for the benefits claimed,” resulting in the employer’s forfeiture of “each special and affirmative defense allowed by the [South Carolina Workers’ Compensation] Act.”  Id. 67-603C (emphasis added).  An employer who has failed to respond to a claimant’s workers’ compensation action is therefore precluded only from raising affirmative defenses and may still deny liability.  Likewise, we hold that an employer who has responded to a workers’ compensation claim may assert a general denial of liability whether or not the response expressly contests compensability.  SeeClade v. Champion Labs., 330 S.C. 8, 11, 496 S.E.2d 856, 857 (1998) (“The claimant has the burden of proving facts that will bring the injury within the workers’ compensation law, and such award must not be based on surmise, conjecture or speculation.”).  Moreover, as we have noted in our narrative of the facts, Carolina Orthopaedic stated in its Form 51 that it reserved the right to assert any applicable defenses supported by evidence developed during discovery.

II.  Proximate cause

Hargrove next contends the only reasonable conclusion from the competent evidence in the record was that her problems resulted from her accident on the job.  We disagree.

Hargrove maintains that the “uninterrupted sequence of events leading inexorably from her fall to her ruptured disc to her consequent surgery and permanent disability,” along with her own testimony on causation, “constituted the only evidence in the record and the only plausible explanation for her problem.”  We disagree with this assertion.  Regardless of what the medical evidence indicated, we cannot disregard the lay evidence on which the commission relied in finding Hargrove did not prove her problems resulted from her fall.  See Tiller v. Nat’l Health Care Ctr. of Sumter, 334 S.C. 333, 340, 513 S.E.2d 843, 846 (1999) (“[W]hile medical testimony is entitled to great respect, the fact finder may disregard it if there is other competent evidence in the record.”); Ballenger v. S. Worsted Corp., 209 S.C. 463, 467, 40 S.E.2d 681, 682-83 (1946) (“Medical testimony should not be held to be conclusive, irrespective of other evidence . . . .”).

Hargrove clocked out for her appointment with Dr. James even though she was informed this would not be necessary for treatment of a workplace injury.  Dr. James appeared to have been unaware of Hargrove’s contention that her problems occurred as a result of her fall until he received a report from Dr. Tsahakis recounting her version of the events.  In addition, Hargrove had reported experiencing lower back pain from having to care for her incapacitated brother.  Furthermore, when she applied for short-term disability benefits, Hargrove never indicated her disability resulted from an accident at work.  Hargrove’s behavior indicated she herself did not consider her injury to be work-related.  We will not disturb the appellate panel’s decision regarding the weight to be given this evidence.

III.  References to social security and retirement benefits

Hargrove complains that evidence of her social security and retirement benefits were improperly considered in denying her claim for compensation.  We find no error.

Hargrove argues correctly that procedures regarding retirement and social security benefits cannot be used as a basis for a deciding a workers’ compensation claim.  See Stephenson v. Rice Servs., 314 S.C. 287, 289-90, 442 S.E.2d 627, 628 (Ct. App. 1994) (holding the commission cannot rely on a VA rating to find a claimant was totally disabled), rev’d on other grounds, 323 S.C. 113, 473 S.E.2d 699 (1996); Solomon v. W.B. Easton, Inc., 307 S.C. 518, 521, 415 S.E.2d 841, 843 (Ct. App. 1992) (“[A]wards and records of the Social Security Administration ordinarily cannot be relied upon to support or deny a workers’ compensation claim.”).

We acknowledge that the single commissioner mentioned Hargrove’s aborted attempt to retire in 2003 and the fact that she had also applied for social security benefits.  These references to retirement and social security benefits were not for the purpose of justifying the decision to deny Hargrove’s claim for workers’ compensation benefits.  Rather, they provided only additional explanation as to why Hargrove, as she readily admitted in her testimony, did not tell anyone she intended to file a workers’ compensation claim.

CONCLUSION

For the foregoing reasons, we uphold the finding that Hargrove failed to prove her medical problems resulted from a workplace injury.  Because affirmance of this finding is sufficient to uphold the denial of workers’ compensation benefits, we decline to address the merits of the commission’s alternative finding that Hargrove failed to timely notify Carolina Orthopaedic of her accident.

AFFIRMED.

KONDUROS, J., and CURETON, A.J., concur.

[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

SC Workers’ Compensation – Guaranty Fund – What Happens If Your Employer or Insurance Company Goes Out of Business

Feb 25, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals case discusses what happens if the employer and/or workers’ compensation insurance carrier go out of business. This case seems particularly relevant in the current economic downturn that has been ongoing for several years now. Fortunately, in South Carolina, we have the Guaranty Fund which protects injured workers and their families if this contingency occurs. Thank goodness our legislature has taken this step for our State. Now, if a carrier does not survive, injured workers can still access funds to pay their medical bills and claims. In this case, even after the claimaint died prematurely from an unrelated illness, her family was still ultimately compensated from this Fund. Worker’s compensation cases are already difficult but having to proceed with litigation after a carrier fails is even more complex and anxiety producing. Better make sure your attorney knows what to do if this happens in your case. There is simply too much at stake for you and your family to risk having an inexperienced attorney.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Frances S. Hudson, Deceased Employee, by Kenneth L. Hudson and Keith B. Hudson, Co-Executors of her Estate, as well as Matthew Deese and/or Andrew Deese, Respondents,

v.

Lancaster Convalescent Center, Employer, and Legion Insurance Company, In Liquidation through the South Carolina Property and Casualty Insurance Guaranty Association, Carrier, Appellants.

Opinion No.4705
Heard March 3, 2010 – Filed June 30, 2010
Withdrawn, Substituted and Refiled February 4, 2011
Withdrawn, Substituted and Refiled April 21, 2011

Appeal From Lancaster County
Kenneth G. Goode, Circuit Court Judge

AFFIRMED IN PART AND REVERSED IN PART

E. Ros Huff, Jr., of Irmo, for Appellants Lancaster Convalescent Center and Legion Insurance Company, and Mark D. Cauthen and Peter P. Leventis, both of Columbia, for Appellant South Carolina Property and Casualty Insurance Guaranty Association.

Andrew Nathan Safran and Pope D. Johnson, both of Columbia, and Ann McCrowey Mickle, of Rock Hill, for Respondents.

LOCKEMY, J.:  In this workers’ compensation action, Lancaster Convalescent Center (Employer) and Legion Insurance Company (Legion), in liquidation through South Carolina Property and Casualty Insurance Guaranty Association (the Guaranty Association), appeal the circuit court’s decision affirming the decision of the Appellate Panel of the Workers’ Compensation Commission (Appellate Panel) to award Frances S. Hudson certain workers’ compensation benefits.  We affirm in part and reverse in part.    

FACTS

This appeal comes to this court after several workers’ compensation hearings.  In 1997, Frances S. Hudson sustained an injury to her left leg while in the course and scope of her employment with Employer for which she received workers’ compensation benefits.  Later, in an order dated October 3, 2001, the single commissioner found Hudson permanently and totally disabled based on a combination of injuries stemming from her original 1997 work-related injury.  Due to the combination of her injuries, the single commissioner found Hudson unable to perform any kind of work.

Thereafter, Hudson requested a lump-sum payment of her disability award, but Employer and Legion objected.  After a hearing on the matter, the single commissioner found it was in Hudson’s best interests to receive the lump-sum payment of her previous award.  The single commissioner noted that the South Carolina Code vests authority in the Workers’ Compensation Commission to determine, with discretion, whether a lump-sum payment is in an employee’s best interest.  During the pendency of the lump-sum workers’ compensation proceedings, Hudson died from cancer on June 30, 2002.

Employer and Legion appealed the single commissioner’s ruling to the Appellate Panel and argued it was error to award Hudson the lump-sum award.  Thereafter, the Appellate Panel affirmed all of the single commissioner’s findings of facts and conclusions of law, sustaining his order in its entirety.  On July 28, 2003, Legion became insolvent.  Accordingly, after the ruling regarding the lump-sum payment was rendered, the circuit court stayed the appeal due to Legion’s insolvency.  During the stay, the Guaranty Association assumed all rights, duties, and obligations of Legion as the insolvent insurance carrier pursuant to section 38-31-60 of the South Carolina Code (Supp. 2009).  Thereafter, Employer and the Guaranty Association appealed the Appellate Panel’s order to the circuit court and argued it was error to award the lump-sum award, and the Appellate Panel’s order must be vacated in light of Hudson’s untimely death.

The Honorable Paul E. Short, then a circuit court judge, affirmed the Appellate Panel’s order in its entirety by written order.  The circuit court found substantial evidence supported the Appellate Panel’s lump-sum award and that the award was not inconsistent with section 42-9-301 of the South Carolina Code (1985).  Concerning whether Hudson’s death impacted the workers’ compensation proceedings, the circuit court found this issue was not preserved for review.  Additionally, the circuit court found Employer and Legion’s assertion regarding the abatement of Hudson’s claim was unpersuasive.  Employer and the Guaranty Association appealed the circuit court’s decision to this court, but they subsequently withdrew the appeal.  Consequently, our clerk of court signed an order of dismissal and remittitur on April 20, 2004.

At some point during the proceedings, Employer and the Guaranty Association learned of Hudson’s death and ceased making payments.  In response, Kenneth and Keith Hudson, as executors of their mother’s estate (the Estate), requested payment of the lump-sum award.  The Hudson sons raised the issue on behalf of Matthew and Andrew Deese, Hudson’s dependent grandchildren.  Specifically, the Estate argued the grandchildren were entitled to payment of the lump sum, as Hudson’s dependents.  Employer and the Guaranty Association argued Hudson’s lump-sum payment abated upon her death and maintained they were not obliged to pay any sum.  The single commissioner found Judge Short’s 2004 order, which addressed Hudson’s lump-sum award, could not be challenged or relitigated.  Specifically, the single commissioner found: (1) Hudson’s disability award could reasonably fall within section 42-9-10 of the South Carolina Code (Supp. 2009); (2) all of the current beneficiaries had colorable claims to the lump-sum proceeds; and (3) the Guaranty Association failed to establish abatement under section 42-9-280 of the South Carolina Code (1985).  Further, the single commissioner ordered the Guaranty Association to pay the lump sum with interest and a ten percent penalty within seven days of the order.

Again, Employer and the Guaranty Association appealed the single commissioner’s order.  On appeal, the Appellate Panel affirmed all of the single commissioner’s factual findings and legal conclusions with the exception of the ten percent penalty imposed.  Specifically, the Appellate Panel noted the Guaranty Association did not pursue a frivolous defense.  Thereafter, the Estate and the Guaranty Association cross-appealed to the circuit court.  The Honorable Kenneth Goode issued an order affirming the Appellate Panel with the exception of the ten percent penalty it vacated.  In his order, Judge Goode concluded section 42-9-90 of the South Carolina Code (1985) compelled a penalty; accordingly, he reinstated the penalty.  This appeal followed.

STANDARD OF REVIEW

“The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers’ Compensation Commission.” Forrest v. A.S. Price Mech., 373 S.C. 303, 306, 644 S.E.2d 784, 785 (Ct. App. 2007).  “In workers’ compensation cases, the [Appellate Panel] is the ultimate fact finder.”  Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).  This court reviews facts based on the substantial evidence standard.  Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612, 632 S.E.2d 874, 877 (Ct. App. 2006).  Under the substantial evidence standard, the appellate court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact.  Forrest, 373 S.C. at 306, 644 S.E.2d at 785; see also S.C. Code § 1-23-380(5) (Supp. 2009).  The appellate court may reverse or modify the Appellate Panel’s decision only if the claimant’s substantial rights have been prejudiced because the decision is affected by an error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.  Forrest, 373 S.C. at 306, 644 S.E.2d at 785-86.  “Substantial evidence is not a mere scintilla of evidence nor evidence viewed from one side, but such evidence, when the whole record is considered, as would allow reasonable minds to reach the conclusion the [Appellate Panel] reached.”  Shealy, 341 S.C. at 455, 535 S.E.2d at 442.

LAW/ANALYSIS

I.  Abatement

Employer and the Guaranty Association argue the circuit court erred in affirming the Appellate Panel’s decision finding Hudson’s lump-sum award survived her death.  However, Judge Short’s order found this issue was not properly before the circuit court in 2004 because Employer and the Guaranty Association failed to raise it to the Appellate Panel after Hudson died.  Employer and the Guaranty Association appealed Judge Short’s ruling but later withdrew the appeal.  Thus, we find Judge Short’s ruling finding the abatement issue unpreserved is the law of the case.  See Judy v. Martin, 381 S.C. 455, 458, 674 S.E.2d 151, 153 (2009) (“Appellant may not seek relief from the prior unappealed order of the circuit court because the order has become the law of the case.  Under the law-of-the-case doctrine, a party is precluded from relitigating, after an appeal, matters that were either not raised on appeal, but should have been, or raised on appeal, but expressly rejected by the appellate court.”).  Accordingly, we decline to address the issue on the merits.

II.  Beneficiaries/Next of Kin Dependents

Employer argues the circuit court erred in failing to address whether all four beneficiaries have legitimate claims.  The Guaranty Association argues the circuit court erred in affirming the Appellate Panel’s decision to award Hudson’s lump sum to her Estate rather than to her beneficiaries pursuant to section 42-9-280 of the South Carolina Code (1985).  In response, the Estate argues Employer and the Guaranty Association acknowledged and accepted the beneficiaries’ valid and reasonable settlement of their respective claims to the lump-sum proceeds.  Thus, based on this stipulation, the Estate argues Employer and the Guaranty Association cannot now contest the manner in which the lump-sum award will be distributed.  We agree with Employer and the Guaranty Association.

We disagree with the Estate’s assertion that Employer and the Guaranty Association acknowledged and accepted the beneficiaries’ valid and reasonable settlement of their respective entitlements to the lump-sum proceeds.  On the contrary, during the hearing before the single commissioner on January 25, 2005, Employer’s counsel consistently questioned to whom the lump-sum award should go and the manner of the payment.  We note there was a discussion among the parties during which they agreed to divide the award evenly between Hudson’s sons and minor grandsons.  The single commissioner noted Employer’s counsel had no objection to the manner in which the funds were split but reserved the right to claim that the funds were payable.  However, we do not find such a stipulation by Employer’s counsel on the record and note he stated:  “our position is the [E]state takes nothing.”  Thereafter, Employer and the Guaranty Association appealed the single commissioner’s decision to award Hudson’s lump sum to her Estate, rather than to her beneficiaries, to both the Appellate Panel and the circuit court.  Therefore, we find this issue is properly preserved for our review and do not find Employer stipulated to the manner of dividing the lump-sum award.  Accordingly, we will address this issue on the merits.

Pursuant to section 42-9-280:

When an employee receives or is entitled to compensation under this Title for an injury covered by the second paragraph of § 42-9-10 or 42-9-30 and dies from any other cause than the injury for which he was entitled to compensation, payment of the unpaid balance of compensation shall be made to his next of kin dependent upon him for support, in lieu of the compensation the employee would have been entitled to had he lived. (emphasis added)

Here, Hudson’s cause of death, cancer, was unrelated to her work injury.  Pursuant to section 42-9-280, the workers’ compensation commission must pay the unpaid balance of her lump-sum award to her dependent grandchildren rather than to her sons as beneficiaries of the Estate.  Therefore, we find the circuit court erred in affirming the Appellate Panel’s decision to award Hudson’s lump sum to the Estate rather than to her beneficiaries pursuant to section 42-9-280 of the South Carolina Code (1985).  Accordingly, we reverse that portion of the circuit court’s order and direct all lump-sum payments to be paid directly to Hudson’s dependent grandsons.

III.   Interest Award

Next, Employer and the Guaranty Association argue the circuit court erred in affirming the Appellate Panel’s decision to award Hudson’s Estate interest on the lump-sum award.  Specifically, the Guaranty Association maintains section 38-31-20(8)(h) (Supp. 2009) of the South Carolina Property and Casualty Insurance Guaranty Association Act disallows claims for interest.  Section 38-31-20(8) provides:

“Covered claim” means an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and is subject to the applicable limits of an insurance policy to which this chapter applies issued by an insurer, if the insurer is an insolvent insurer and (a) the claimant or insured is a resident of this State at the time of the insured event, if for entities other than an individual, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event or (b) the claim is for first-party benefits for damage to property permanently located in this State. ‘Covered claim’ does not include: . . . (h) any claims for interest.  (emphasis added)

In response, the Estate points to section 38-31-60 of the South Carolina Code (1985 & Supp. 2009) which reveals broad duties owed by the Guaranty Association.  We agree with Employer and the Guaranty Association on this issue.

Section 38-31-60(b) states that the Guaranty Association “is considered the insurer to the extent of its obligation on the covered claims and, to this extent, has all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.”  As we already indicated, interest is not covered.  Accordingly, based on the plain reading of the statute, we reverse the circuit court’s order affirming the Appellate Panel’s decision to award interest.

IV.  Penalty Imposed

Finally, Employer and the Guaranty Association argue the circuit court erred in reversing the Appellate Panel’s decision not to award Hudson’s Estate a ten percent penalty.  Originally, the single commissioner imposed a ten percent penalty under section 42-9-90 of the South Carolina Code (Supp. 2009) based on Employer and the Guaranty Association’s frivolous defense.  Thereafter, the Appellate Panel reversed the penalty after finding Employer and the Guaranty Association did not pursue a frivolous defense.  Finally, the circuit court reinstated the penalty and relied on Martin v. Rapid Plumbing, 369 S.C. 278, 631 S.E.2d 547 (Ct. App. 2006).  The Estate argues Martin is inapplicable to the facts of their case, and therefore, the circuit court erred by reinstating the ten-percent penalty.[1]

In response, the Estate maintains the circuit court properly found that the ten percent penalty pursuant to section 42-9-90 was mandatory.  Their reasoning is that Judge Short’s order was final and should not have been relitigated.  Further, the Estate maintains that under section 42-9-90, an employer or carrier must prove that circumstances beyond their control prevented payment of all compensation owed.  Also, the Estate maintains this section does not afford the Commission any discretion when deciding whether to impose a penalty.  We agree with the Estate.

Section 42-9-90 provides:

If any installment of compensation payable in accordance with the terms of an agreement approved by the Commission without an award is not paid within fourteen days after it becomes due, as provided in § 42-9-230, or if any installment of compensation payable in accordance with the terms of an award by the Commission is not paid within fourteen days after it becomes due, as provided in     § 42-9-240, there shall be added to such unpaid installment an amount equal to ten per cent thereof, which shall be paid at the same time as, but in addition to, such installment, unless such nonpayment is excused by the Commission after a showing by the employer that owing to conditions over which he had no control such installment could not be paid within the period prescribed for the payment.

Here, Employer and the Guaranty Association simply stopped paying compensation to the Estate.  We agree that they had a non-frivolous defense, as the Appellate Panel found.  However, as the single commissioner and Judge Goode found, the imposition of the penalty is mandatory under the statute.  Therefore, we affirm the circuit court’s reinstatement of the ten-percent penalty.

CONCLUSION

Judge Short’s ruling finding the abatement issue unpreserved is the law of the case.  Therefore, we decline to address this issue on the merits.  Pursuant to section 42-9-280 of the South Carolina Code, we reverse the portion of Judge Goode’s order affirming the Appellate Panel’s decision to pay Hudson’s remaining lump sum balance to her sons as beneficiaries and order the balance be paid to her grandsons as beneficiaries.  Finally, based on applicable statutes, we reverse the interest award and affirm the ten-percent penalty imposed.  Accordingly, the decision of the circuit court is

AFFIRMED IN PART AND REVERSED IN PART.

WILLIAMS and PIEPER, JJ., concur.

[1] We find Martin analogous yet distinguishable from the present situation.