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.
- That evidence of a computer report contradicted by more reliable evidence on the record should not have been admitted.
- That the Workers’ Compensation Commission erred in determining that Employee was not permanently and totally disabled.
- 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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Aug 8, 2012 | Uncategorized, Workers' Compensation
The South Carolina Supreme Court just published a new opinion on what an interlocutory appeal is for the purposes of Workers’ Compensation appeals. Bone v. US Food clarified the existing case law and establishes plainly that to appeal a Workers’ Compensation case there must have been a “final judgment,” not merely a judgment “affecting the merits.”
In this Workers’ Compensation case, the Workers’ Compensation Commission at hearing ruled that Bone’s injury was noncompensable. An appellate panel of the Workers’ Compensation then upheld the decisiob. Bone then appealed to the Circuit Court (today the appeal would have went to the Court of Appeals, but then the first appeal went to Circuit Court). The Circuit Court overturned the Commission, ruling that the injury was compensable and remanded for determination of damages. Employer then appealed this decision to the Court of Appeals which ruled that the appeal was impermissible as an interlocutory appeal not allowed by the APA. Employer appealed this decision to the Supreme Court which affirmed.
The issue at the Court of Appeals and the Supreme Court was whether the final judgment rule applied to appeals of an appeal. The majority decided yes; the dissent decided no. The majority’s position was that the final judgment rule applied both to appeals from the Commission and appeals from judicial branch review of a Commission decision. The dissent disagreed arguing that that to appeal from judicial branch review only a judgment affecting the merits was necessary.
The Workers Compensation Attorneys of Reeves, Aiken & Hightower
If you or someone you know has been injured or killed on the job, 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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Jul 30, 2012 | Uncategorized, Workers' Compensation
Saturday another accident befell the new Charleston Boeing plant as parts fell out of a 787 engine onto a Charleston, SC runway, starting a fire and shutting down the Charleston airport temporarily. The National Transportation Safety Board (NTSB) is investigating the problem, along with Boeing and GE (the engine’s manufacturer).
The Charleston area Boeing plant (actually in North Charleston) opened last year and is adjacent to the Charleston Airport. The company employs 3800 workers in the area.
The Workers’ Compensation Attorneys of Reeves, Aiken & Hightower
If you or someone you know has been injured or killed on the job, 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.
Jul 26, 2012 | Uncategorized, Workers' Compensation
In workers’ compensation news, it turns out that accidents on the farm are more than 2.5 times more likely to result in amputation than the average work accident. Farmers hurt on the job are at a 11% chance of having an amputation, an astounding number considering how frequent accidents are on the farm.
Also worrying from the employee’s perspective is that the prosthetic limbs provided by doctors will often be too flimsy to allow the worker to return to a farm job.
Amputation injuries do result in hard to deny workers compensation claims, and to the extent employees are unable to find employment due to a prosthetic necessitated by the injury, employees will have an additional workers’ compensation remedy.
Rock Hill Workers’ Compensation Attorneys of Reeves, Aiken & Hightower
If you or someone you know has been injured or killed on the job, 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.
Jul 18, 2012 | Uncategorized, Workers' Compensation
In Johnson v. Rent-A-Center, the South Carolina Supreme Court heard two workers’ compensation issues, affirming the Court of Appeals, presumably to clarify the law. The issues were:
- Whether an employee had a temporary total disability when she was medically able to be a phlebotamist, but after a reasonably thorough job search finding only jobs that combined the functions of a phlebotamist and a CNA, was unable to find suitable employment? Supreme Court: She did have a temporary total disability.
- Did an employee constructively refuse light duty work when he or she was never actually offered light duty work and voluntarily resigned after being offered only full duty work? Supreme Court: constructive refusal of light duty work is not a recognized defense to total temporary disability, but even if the Court assumed it was, there was no constructive refusal of light duty work because there was no offer of light duty work.
Total Temporary Disability
Disability is defined in section 42-1-120 as an “incapacity because of injury to earn wages, which the employee was receiving at the time of injury in the same or any other employment.” The court had previously fleshed out this section in Shealy v. Algernon Blair, Inc., 250 S.C. 106, 113, 156 S.E.2d 646, 649–50 (1967). Shealy places the burden on the employee to prove that
- the employee “failed [to obtain employment] because of an injury produced handicap,” and
- the employee “made reasonable efforts to obtain employment.”
The Supreme Court explained that under the first prong above that the jobs must exist for the employee in actuality, rather than in theory and that the jobs must be within the employee’s geographical area.
Under the second prong, the Supreme Court affirmed that the employee had made reasonable efforts to find employment on the basis of the employee’s testimony that she had put in applications at 5 hospitals and received no offers.
Constructive Refusal of Light Duty Work
The Supreme Court made clear that constructive refusal of light duty work was under current law no defense to total temporary disability, but they discussed the issue anyway. A few important points:
- When the employee was first placed on a lift-restriction, the employer refused to let the employee return to work
- Employee left the employer because of the employer assigned her to work with the person who caused the employee’s injuries, not because she refused to do the work offered
- Refusal of light duty work was not even an issue in this claim because employee was on full release when she first returned to work with the employer
Thus, employer’s argument that the employee constructive refused light duty work fails to make sense. If the refusal occurred at employee’s resignation, she was on release, so light duty work isn’t an issue, and, if the refusal had occurred when she couldn’t find work after a few months of employment as a CNA/Phlebotamist, it is “highly speculative” that the employer (Rent-A-Center) would have offered the employee light duty work.
The whole opinion is provided below.
The Workers’ Compensation Attorneys of Reeves, Aiken & Hightower
The SC workers compensation lawyers at Reeves, Aiken, & Hightower know the South Carolina worker’s compensation system and are ready to get you the recovery you deserve. Browse our website, examine our credentials, and compare us to anyone else. Then call us at 877-374-5999 or contact us at this link for a private consultation.
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Jul 11, 2012 | Uncategorized, Workers' Compensation
In Bentley v. Spartanburg County (the opinion is attached below), the South Carolina Supreme Court held that when a deputy shoots and kills an unarmed suspect he is not entitled to a workers compensation recovery for the mental injuries caused by the shooting.
In workers compensation, employees are entitled to recovery for mental injuries sustained on the job only if the injury is caused by an extraordinary and unusual employment condition. The court basically decided that cops know that they are liable to have to shoot and kill suspects on the job. They are told so during training, and they are trained to do the shooting. Since the officer in question could have expected killing someone on the job, the event was neither extraordinary nor unusual for the purposes of a mental injury recovery under the workers compensation act.
The relevant part of the Workers’ Compensation Act, Section 42-1-16, requires that the employee prove by a preponderance of the evidence that:
the employee’s employment conditions causing the stress, mental injury, or mental illness were extraordinary and unusual in comparison to the normal conditions of the particular employment.
The result in this case is almost entirely unremarkable given the current law.
What makes the opinion interesting though is that while the Court ruled against Bentley in this particular case, it also issued a protest against the extraordinary and unusual requirement for mental injury recoveries. The court recognized that they must judge on the basis of the statute, but they argued that like other states have already done, South Carolina should begin to view mental injury recoveries with less skepticism.
Traditionally, claims of mental injury have been disallowed altogether or subjected to greater hurdles than claims of physical injury. But recognizing that physical injuries are just as susceptible to fraud and just as injurious, the Court asked the legislature to reconsider the current law.
Justice Hearn wrote a dissent, with Justice Beatty concurred, that embraced the protest in the majority opinion, but argued that even under the current standard, the killing of a suspect is an extraordinary and unusual workplace condition for a Spartanburg deputy sheriff.
South Carolina Workers’ Compensation Attorneys of Reeves, Aiken & Hightower
The SC workers compensation lawyers at Reeves, Aiken, & Hightower know the South Carolina worker’s compensation system and are ready to get you the recovery you deserve. Browse our website, examine our credentials, and compare us to anyone else. Then call us at 877-374-5999 or contact us at this link for a private consultation.
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