SC Self Insurers Forum Brings Attention to Apportionment

My first post is about the South Carolina Self-Insurers Association (SCSIA) Annual Members-Only Forum my partner Rebecca Halberg and I attended this past April. From the substantive program to the networking, this conference is always a “must” for self-insured employers and their legal and medical teams. This year was no exception.  Add perfect beach weather, and it was one of the best on record.

We were fortunate to have three commissioners at the Forum to field questions on a variety of topics. One that drew considerable attention was apportionment.  It is always frustrating to explain to an employer why he must pay benefits to an employee because a preexisting condition made that employee susceptible to a problem nobody on the payroll has ever experienced.  The Second Injury Fund used to cushion that blow.  As the Fund sails off into the sunset, employers are left without a safety net.  Moreover, the new Section 42-9-35 (added in 2007) expressly made aggravations of preexisting conditions compensable outside of the Second Injury Fund statutes that had been used to bring aggravation claims within the Act.  Section 42-9-35 allows for permanency for the resulting disability of the preexisting condition and the subsequent injury.

In a recent Court of Appeals decision, Murphy v. Owens Corning, the claimant worked as a silver handler. The job required her to look up and pull down glass pieces for most of her eight-hour shift.  Murphy began to experience pain in her neck, headaches and tingling in her fingers.  No other handler had ever experienced these problems.  She was diagnosed with preexisting cervical spondylosis “probably from birth.”  The Commission found the repetitive job duties aggravated her spondylosis and awarded the case.  The Employer and Carrier appealed on several grounds, one of which was the Commission’s findings did not satisfy the compensability requirements of Section 42-9-35.  The Employer and Carrier argued the claim should be denied because Murphy did not prove a subsequent injury or subsequent disability.  The Court of Appeals disagreed with the Employer’s position based on the Commission’s finding that a direct causal connection existed between the repetitive activities of the job and the aggravation of the underlying neck condition.

So where does this leave us?  Generally, there is no apportionment among prior and current injuries, provided the claimant can establish aggravation.  However, the commissioners agreed they will give an employer credit when the employee received disability benefits for the same body part as evidenced by a specific settlement agreement or Order setting forth the number of weeks received.