The Supreme Court withdrew its opinion in Clemmons v. Lowe’s Home Center and replaced it with a new opinion. The Court removed the language regarding the fact that Clemmons was actually working at the time of the hearing and, therefore, was not totally disabled. The Court mandated the use of regional impairment ratings in awards to the back under the scheduled member statute.
I’m afraid the law of unintended consequences may apply as a result of the new Clemmons decision. Under the SC Act, in scheduled member cases awards under section 42-9-30 have historically been increased from the impairment ratings assigned by the physicians. This is based on the principal that “impairment” is simply a number assigned by the AMA Guides to Permanent Impairment while “disability” is the effect that the impairment has on the injured worker. Therefore, “impairment” and “disability” are separate and distinct concepts allowing a commissioner to award 10% disability based on a 5% impairment rating in scheduled member cases.
To reach its conclusion in Clemmons that the record lacked substantial evidence for an award of less than total disability, the Court necessarily ignored the effect the impairment had on Clemmons. He was working at the time of the award after all.
In the new Clemmons decision, the Court uses the terms “disability” and “impairment” interchangeably.
The Court has removed the distinction between an impairment rating and the concept of disability. If, in fact, the effect the injury has on the injured worker (i.e. his ability to perform the functions of his job or perform activities of daily living) is irrelevant,
Commissioners should no longer feel free to increase impairment ratings assigned by physicians in the award of disability in scheduled member cases.
If the only relevant factor in scheduled member cases is the impairment rating, the Commissioner should not consider anything beyond the impairment rating assigned by a physician.
I submit with this opinion, the Supreme Court has adopted the mandate of the highly controversial Executive Order 2007-19 issued by Governor Sanford on September 20, 2007. And that is how the law of unintended consequences rears its ugly head.
