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

I. The FCE

Watson argues the Appellate Panel erred in admitting the strength category contained in the FCE that indicates Watson was capable of light strength work. Watson asserts the vocational opinion was generated by a computer system, and XTRA offered no evidence to establish the computer was qualified as a vocational expert to give an opinion under Rule 702 of the South Carolina Rules of Evidence. We disagree.

Because the South Carolina Rules of Evidence do not apply in proceedings before the Workers’ Compensation Commission, and Watson offers no other authority for this court to reverse the Appellate Panel, we affirm the decision to admit the FCE into evidence. See Hamilton v. Bob Bennett Ford, 339 S.C. 68, 70, 528 S.E.2d 667, 668 (2000) (“[T]he South Carolina Rules of Evidence do not apply in proceedings before the Workers’ Compensation Commission.”); Hallums v. Micheline Tire Corp, 308 S.C. 498, 504, 419 S.E.2d 235, 239 (1992) (holding the Workers’ Compensation Commission is allowed wide latitude of procedure and is not restricted to the strict rule of evidence adhered to in a judicial court); see also Conran v. Joe Jenkins Realty, Inc., 263 S.C. 332, 334, 210 S.E.2d 309, 310 (1974) (holding appellant has the burden of proof to convince a reviewing court that the lower court was in error, and to do this, appellant must place in the record a sufficient foundation for his or her argument).

Accordingly, we affirm the Appellate Panel’s decision to admit the strength category portion of the FCE into evidence.

II. Permanent and Total Disability

Watson argues the Appellate Panel erred in failing to find permanent and total disability (PTD) under section 42-9-10 of the South Carolina Code (Supp. 2011) or, in the alternative, section 42-9-30(21) of the South Carolina Code (Supp. 2011). We disagree.

A. Section 42-9-10

First, Watson contends the Appellate Panel erred in failing to find PTD under section 42-9-10. We disagree.

Section 42-9-10 provides for PTD “when the incapacity for work resulting from an injury is total.” The extent of disability is a question of fact to be proved as any other fact is proved. Hanks v. Blair Mills, Inc., 286 S.C. 378, 384, 335 S.E.2d 91, 95 (Ct. App. 1985). In Wynn v. Peoples Natural Gas Co. of S.C., 238 S.C. 1, 11- 12, 118 S.E.2d 812, 817-18 (1961), our supreme court stated:

Disability in compensation cases is to be measured by loss of earning capacity. Total disability does not require complete helplessness. . . . The generally accepted test of total disability is inability to perform services other than those that are “so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.”

(internal citations omitted).

Here, there is substantial evidence in the record to support the Appellate Panel’s conclusion that Watson is not permanently and totally disabled. At the hearing before the single commissioner, Watson testified as to her education and work experience: (1) she graduated high school and attended several training courses in health and life insurance, as well as vocational training in secretarial duties; (2) she is versed in the operation of computers; (3) she has experience in contract negotiation, customer service, accounting, ad design, and other types of secretarial work; and (4) she has extensive experience and training in occupations of a sedentary nature. As to her physical capabilities, Watson testified: (1) she is able to drive continually for thirty to thirty-five minutes and can drive longer if she takes breaks; (2) she performs some household chores; (3) she goes grocery shopping; (4) she handles all her money and pays her bills; and (5) she no longer takes any anti-inflammatories or pain medication.

Further, both Dr. Chokshi and Shadbolt evaluated Watson and testified she could return to work in an occupation that complied with her job factor restrictions. While the dissent points out Watson’s restrictions, we find Watson’s testimony describing her capabilities, and the testimony of Dr. Chokshi and Shadbolt provide substantial evidence to conclude Watson is not permanently and totally disabled.

Based on the record as a whole, we find Watson failed to show that she was unable to perform services other than those that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. See Coleman v.

Quality Concrete Prods., Inc., 245 S.C. 625, 630, 142 S.E.2d 43, 45 (1965) (holding the burden is on the employee to prove he or she is totally disabled, specifically that he or she is unable to perform services other than those that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist). Therefore, we affirm the Appellate Panel’s conclusion that Watson was not permanently and totally disabled under section 42-9-10.

B. Section 42-9-30(21)

Watson also contends the Appellate Panel erred in failing to find PTD under section 42-9-30(21). We disagree.

While PTD is generally based on loss of earning capacity, section 42-9-30(21) states there is a rebuttable presumption of PTD when a claimant has 50% or more loss of use of the back. Therefore, a claimant with 50% or more loss of use of the back is not required to prove loss of earning capacity to establish PTD. Bateman v. Town & Country Furniture Co., 287 S.C. 158, 160, 336 S.E.2d 890, 891 (Ct. App. 1985) (holding a claimant who suffers a 50% or more loss of use of the back need not show a loss of earning capacity to recover PTD).

Here, the Appellate Panel affirmed the single commissioner’s finding that Watson sustained 50% impairment to the use of her back. The Appellate Panel also agreed that while there was a presumption Watson was totally and permanently disabled under section 42-9-30(21), XTRA rebutted that presumption. We find there is substantial evidence in the record to support the Appellate Panel’s conclusion that XTRA rebutted the presumption that Watson was permanently and totally disabled.

The Appellate Panel relied, in part, on the FCE, which concluded Watson is capable of assuming a position in the light strength category. The Appellate Panel also reviewed the testimony of Dr. Chokshi who stated, “As long as the work is within the particular restrictions, I believe it is reasonable for her to continue working.” Dr. Chokshi also determined that according to the American Medical Association (AMA) guidelines, Watson had a 10% impairment rating of the whole person. Shadbolt testified he believes Watson could perform a sedentary job if she was able to stand up and sit down periodically. Further, Watson testified she is willing to work within her strength restrictions, but admitted she has not looked for any employment within those restrictions.

We recognize the testimony of Brown, the vocational analyst, who asserted the conclusions of the FCE were inconsistent, and Watson was permanently and totally

disabled. However, the Appellate Panel is reserved the task of weighing the evidence, and it ultimately concluded Watson was not permanently and totally disabled. See Shealy v. Aiken Cnty., 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) (holding the appellate panel is specifically reserved the task of assessing the credibility of the witnesses and the weight to be accorded evidence). We find the Appellate Panel’s conclusion that Watson is not permanently and totally disabled is supported by substantial evidence in the record. Accordingly, we affirm the Appellate Panel.

III. Credit for TTD

Watson argues the Appellate Panel erred in granting XTRA credit for all TTD paid after Watson reached MMI on August 12, 2009. We disagree.

We find substantial evidence in the record to support Watson reached MMI; therefore, we hold XTRA is entitled to recover any payment it made to Watson for TTD after that date. Dr. Chokshi found Watson reached MMI on August 12, 2009. On appeal, Watson does not object to Dr. Chokshi’s finding of MMI, but instead argues equity demands that XTRA not receive credit for payments it made to Watson after she had reached MMI. Because equity follows the law, XTRA is entitled to credit for any TTD compensation payments it made to Watson after the date of MMI. See Curiel v. Envtl. Mgmt. Servs. (MS), 376 S.C. 23, 29, 655 S.E.2d 482, 485 (2007) (“[T]he date of maximum medical improvement signals the end of entitlement to temporary total disability benefits.”); Smith v. S.C. Dep’t of Mental Health, 335 S.C. 396, 398-401, 517 S.E.2d 694, 695-97 (1999) (finding employer was entitled to stop payment of temporary total disability benefits upon a showing that the claimant has reached maximum medical improvement); Regions Bank v. Wingard Props., Inc., 394 S.C. 241, 254, 715 S.E.2d 348, 355 (Ct. App. 2011) (holding a court may not ignore statutes, rules, and other precedent when providing an equitable remedy).

Accordingly, the Appellate Panel’s decision is

AFFIRMED.

SHORT, J., concurs.

GEATHERS, J., concurs in part, and dissents in part.

GEATHERS, J., concurring in part and dissenting in part.

Respectfully, I concur in part and dissent in part. I concur with the majority’s holdings that: (1) Watson’s strength assessment was properly admitted into evidence, and (2) the employer is entitled to a credit for payment of temporary disability benefits made after Watson reached maximum medical improvement. I respectfully dissent, however, from the majority’s holding that Watson is not permanently and totally disabled, pursuant to sections 42-9-10 and 42-9-30(21) of the South Carolina Code (Supp. 2011).

In South Carolina, there are two models of workers’ compensation; the first, an economic model, compensates workers for reductions in earning capacity, while the second is based on the degree of medical impairment:

“South Carolina’s workers’ compensation law represents a combination of two competing models of workers’ compensation, one economic and the other medical.” Stephenson v. Rice Servs., Inc., 323 S.C. 113, 116, 473 S.E.2d 699, 700 (1996). Under the more traditional economic theory, the goal of worker’s [sic] compensation law is to compensate workers for reductions in their earning capacity caused by work-related injuries. Id. This is the criterion for compensation under the Workers’ Compensation Act. See S.C. Code Ann. § 42-1-120 (1985) (“The term ‘disability’ means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment.”).

“Notwithstanding the definition of disability in section 42-1-120, South Carolina’s workers’ compensation law also recognizes a competing concept of disability that is tied to medical impairment rather than to wage loss or to any reduction in earning capacity. The schedule[d] injuries, which typically provide for fixed awards of workers’ compensation based on degrees of medical impairment to certain listed body parts, are compensable without regard to whether the employee is able to continue working at the same job. In other words, with schedule[d] injuries, the fact the employee still is able to work constitutes no bar to compensation.” Stephenson, 323 S.C. at 117, 473 S.E.2d at 701 (emphasis added). Under the medical theory, the focus is on the medical impairment of the employee. Id.

Simmons v. City of Charleston, 349 S.C. 64, 73-74, 562 S.E.2d 476, 480-81 (Ct. App. 2002).

While an award under general disability requires proof of a loss in earning capacity, an award under a scheduled loss does not require such proof:

Under our Worker’s Compensation Act, a claimant may proceed under § 42-9-10 or section 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. 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. 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.

Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555, 393 S.E.2d 172, 173 (1990) (emphasis added) (citations omitted). In my opinion, Watson is permanently and totally disabled pursuant to both statutory models (economic and medical).

The following facts are undisputed: (1) in a workplace setting, Watson now can sit continuously for no longer than three minutes; (2) in a workplace setting, Watson now can stand continuously for no longer than twelve minutes and can walk no farther than 0.10 mile; (3) Adger Brown, the vocational analyst who reviewed Watson’s restrictions, found these job factor restrictions rendered Watson permanently and totally disabled; and (4) when claimant returned to her job, which is classified as sedentary, her employer sent her home, stating there was no work available that could accommodate Watson’s job restrictions.

As stated by the majority, the standard for determining total disability under section 42-9-10 is the inability to perform services other than those that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. Wynn v. Peoples Natural Gas Co. of S.C., 238 S.C. 1, 12, 118 S.E.2d 812, 818 (1961). In other words, “[t]he ability to perform limited tasks for which no stable job market exists does not prevent an employee from proving total disability.” Simmons, 349 S.C. at 74, 562 S.E.2d at 481 (citation omitted).

The majority reasons that because Watson’s strength rating was “sedentary” and because her work at the time of injury was also sedentary, Watson remains capable of returning to sedentary work within the restrictions of sitting no more than three minutes and standing no more than twelve minutes. However, the very existence of these restrictions beg the question of whether they so limit the quality, dependability, or quality of the services Watson is able to perform that there exists no stable job market for those services. The record includes compelling evidence that the sitting and standing restrictions on Watson’s work renders her services unmarketable. When Watson attempted to return to her sedentary job, unsurprisingly, her employer informed her that it could provide no work within her job restrictions.

The majority points out the fact that Watson had previously worked as a secretary. However, there is no relevant distinction between the nature of Watson’s former job and that of a secretary. Watson’s secretarial skills, which also require “sedentary” strength, do not mitigate the impact of the restrictions on her sitting, standing, and walking—basic requirements of all sedentary jobs. Contrary to the majority viewpoint, I would contend there is no “reasonably stable” market for services that can be performed by this claimant. In my opinion, Watson cannot perform workplace services other than those that are “so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.” Accordingly, I would hold that Watson is permanently and totally disabled pursuant to section 42-9-10.

I also disagree with the majority’s analysis under the scheduled disability statute, section 42-9-30(21). It is particularly significant that section 42-9-30(21) provides a rebuttable presumption of total and permanent disability when a claimant has experienced a loss of use of 50% or more of the back. Here, the Commission found that, as a result of Watson’s workplace accident, Watson had sustained a 50% loss of use to her back, which triggered the presumption that Watson is totally disabled. The majority found the employer successfully rebutted this presumption by relying on Dr. Chokshi’s statement that Watson can work within her restrictions

and Watson’s testimony that she was willing to work within her restrictions. In my opinion, these statements are not probative of the existence of a stable market for work as severely restricted as Watson’s work is. See McCollum v. Singer Co., 300 S.C. 103, 107, 386 S.E.2d 471, 474 (Ct. App. 1989) (“Under Workers’ Compensation Law ‘total disability’ does not require complete, abject helplessness. Rather it is an inability to perform services other than those that are so limited in quality, dependability, or quantity that no reasonably stable market exists for them.” (emphasis added)). There is simply no probative evidence in the record to rebut the presumption of Watson’s total disability under section 42-9-30(21). Id. (rejecting an employer’s argument that the claimant’s ability to drive a car for an hour, walk for ten minutes, and go shopping made the claimant employable).

For the foregoing reasons, under each of the workers’ compensation models— economic and medical—I would reverse the Commission’s holding that Watson is not totally and permanently disabled.

Footnotes

1 The results of the tests revealed, in pertinent part: (1) Watson has a maximum lifting capacity of ten pounds, placing her into the light category for lifting capacity; and (2) Watson has a maximum carrying capacity of ten pounds, placing her in the light category for carrying capacity as defined by the Dictionary of Occupational Titles (DOT).

2 Watson’s 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.

3 Watson selected her job title, Director of Placement, in the Dictionary of Occupational Titles, which established the strength category necessary to perform that occupation.

4 The DOT is a U.S. government publication that provides a description of occupational titles for most jobs in the United States and establishes a strength classification for each of these occupations. These strength classifications are sedentary, light, medium, heavy, and very heavy.

5 XTRA previously filed a Form 21 on September 2, 2009, and September 15, 2009, but filed an amended Form 21, which began the current action, on November 9, 2009.

6 Dodge v. Bruccoli, Clark, Layman, Inc., 334 S.C. 574, 579-80, 514 S.E.2d 593, 596 (Ct. App. 1999) (holding a finding that claimant has reached MMI does not preclude an award of additional medical benefits for purposes of lessening the period of disability).