How to win a workers’ comp appeal? – SC Workers’ Compensation Attorney

Aug 9, 2012 | Uncategorized, Workers' Compensation

Workers’ compensation appeals are hard to win.  They’re that way by design.  As a matter of policy, courts and the legislature make sure that administrative decisions are generally left to administrative courts.  Workers’ compensation is generally left to the Workers’ Compensation Commission because that is where it is supposed to be by law.  The idea is that the Workers’ Compensation system should be as streamlined and as cheap and easy to administer as possible.  So, the legislature and courts want to keep workers’ compensation cases out of the normal law courts, and they chiefly do that by making appeals hard to win and simplifying procedure, e.g. if there is any evidence to support a workers’ compensation commission decision, the decision will be upheld on appeal, and the rules of evidence simply do not apply.

Watson v. Xtra Mile Driver Training

This pattern is exemplified in Watson v. Xtra Mile Driver Training.  In that appeal from an Appellate Panel of the Workers’ Compensation Commission, Watson made three arguments, all of which the majority of the court rejected and one of which was accepted by the dissent.

1. That evidence of a computer report contradicted by more reliable evidence on the record should not have been admitted.
2. That the Workers’ Compensation Commission erred in determining that Employee was not permanently and totally disabled.
3. That the Workers’ Compensation Commission erred in crediting temporary total disability (TTD) payments made after maximum medical improvement (MMI) against the amount payable to Employee for permanent partial disability.

The most important argument here, and the only one seriously contestable was whether the Workers’ Compensation Commission erred in determining that Employee was not permanently and totally disabled.  The dissent agreed with Employee on that point.  The rules of evidence simply do not apply before the Workers’ Compensation Commission, and it is a settled matter that after maximum medical improvement (MMI), employees are no longer entitled to temporary total disability payments.

Permanent and Total Disability

The standard of review in determining whether the the Workers’ Compensation Commission erred in determining that the employee was not permanently and totally disabled was the “substantial evidence” standard.  The commonly cited gloss on this standard is:

“Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusions the [Appellate Panel] reached in order to justify its actions.”

Broughton v. S. of the Border, 336 S.C. 488, 495, 520 S.E.2d 634, 637 (Ct. App. 1999).  In this case, there was pretty strong evidence of permanent and total disability, but the majority declines to overturn the Workers’ Compensation Commission under the substantial evidence standard.  The key facts are:

• “job factor restrictions included:
  (1) no continuous standing for more than twelve minutes;
  (2) no continuous sitting for more than three minutes;
  (3) no continuous walking for more than 0.1 miles;
  (4) no pushing more than twenty pounds;
  (5) no pulling more than twenty pounds;
  (6) no stopping; and
  (7) no crawling on her hands and feet.”
• “The Dictionary of Occupational Titles places Ms. Watson’s occupation as a Director of Placement in the sedentary strength category. Therefore, Ms. Watson meets these strength requirements and may return to work as Director of Placement.”
• Employee testified that she could drive sitting down a solid 35-45 minutes.
• A vocational analyst testified that the results of the FCE were inconsistent and that Employee was permanently and totally disabled.

Is there substantial evidence here to support the finding that Employee is not permanently and totally disabled?

A further wrinkle is that Permanent and Total Disability can be found under either of two statutes: 42-9-10 and 42-9-30(21).

42-9-10 provides permanent and total disability “when the incapacity for work resulting from an injury is total,” i.e. when the ability to earn a living is “so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.”

42-9-30(21) provides permanent and total disability for “a claimant with 50% or more loss of use of the back” without proof of loss of earning capacity.

The dissent would have found that the Workers’ Compensation Commission was in error to have found no permanent and total disability in both sections.

The SC Workers’ Compensation Attorneys of Reeves, Aiken & Hightower

If you or someone you know has been injured or killed on the job, whether in Columbia or elsewhere in South Carolina, you need the help of a serious workers’ compensation attorney like those at Reeves, Aiken & Hightower.  Call us at 877-374-5999, or contact us at this link, to schedule a free, private consultation.  We can help you evaluate your claim and get you the recovery you deserve.

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