The Supreme Court of South Carolina ruled claimant’s ability to hold gainful employment does not, alone, preclude a finding of total and permanent disability based on more than 50% to the back.
Further, the Supreme Court decided that regional spine impairments were actually impairments to the “back” within the meaning of the Act. This is contrary to prior practice at the Commission, in a ruling, that if it stands, could increase the exposure created by back injury claims.
Under the scheduled-member statute, 42-9-30, a claimant who sustains a 50% or more impairment to the back is presumed totally and permanently disabled. The statute allows the employer to rebut that presumption. A recent Supreme Court decision significantly changes an analysis of a claimant’s disability under the scheduled-member statute. Clemmons v. Lowe’s Home Centers, Inc., Op. No. 27708 (S.C. 2017).
Spinal cord stimulator permanent restrictions
Clemmons sustained an injury to his back (neck) when he slipped and fell while assisting a customer in September 2010. He underwent surgery and received a spinal cord stimulator. The authorized treating physician determined Clemmons was able to work, albeit with permanent restrictions. The employer offered Clemmons a position within those permanent restrictions, working as a cashier, and Clemmons accepted the position.
The authorized treating physician, Dr. Drye, issued an opinion of maximum medical improvement in June 2011 and assigned a whole person impairment rating of 25% due to the cervical spine injury. Dr. Drye released Clemmons to return to work under permanent work restrictions including: no standing or walking for more than one hour at a time, no stair-climbing, no repetitively reaching overhead, and no lifting more than thirty pounds.
Clemmons submitted independent medical exams from various medical professionals. Dr. Forrest assigned a whole person impairment rating of 49% and opined Clemmons suffered over a 50% loss of his function of his back. Tracy Hill, a physical therapist, assigned a 26% whole person impairment rating, which converted to an 80% impairment to the cervical spine. Hill also assigned an 8% whole person impairment, which converted to a 11% impairment to the lumbar spine. Finally, Clemmons presented medical testimony from a Dr. Margalit, stating Clemmons lost more than 50% of use of his back.
Upon review of the evidence as a whole, The Single Commissioner found Clemmons sustained a 48% disability to his back. Therefore, Clemmons received a permanent partial disability award. The full Commission and the Court of Appeals affirmed the Single Commissioner’s findings.
The Supreme Court reversed the Court of Appeals and the Commission, finding all medical opinions established Clemmons sustained more than 50% loss of use to his back. The Court, relying on Clemmons’ Brief, converted the whole person impairment ratings received from the doctors into regional spine impairment ratings. The AMA Guides 5th Edition includes a conversion chart under table 15.13, page 427. This table converts a whole person impairment rating into a rating for specific regions of the spine. Using the table under 15.13 Dr. Drye’s 25% whole person impairment rating to the spine, results in a 71% impairment to the cervical spine.
However, the scheduled-member statute, 42-9-30, does not address regions of the spine. The statute encompasses all regions using the term, “back.” Other than physical therapist Tracy Hill, none of the doctors assigning impairment ratings to Clemmons converted his impairment rating from whole person into a region of the spine. This is reasonable because impairment ratings to one region of the spine do not correlate to an impairment rating to the entire back.
The Court perceived a 71% impairment rating to the cervical spine as a 71% impairment to the back as a whole. Arguably, this is a rather large leap. Prior to this ruling, an impairment rating to the whole person due to a region of the spine was treated as an impairment rating to the back. For example a 23% whole person rating due to an injury to the cervical spine, resulted in a 23% impairment rating to the back. The Supreme Court’s change in methodology could have an impact on future indemnity exposure.
Despite a finding of more than 50% impairment to the back, the Defendants in Clemmons had the ability to rebut the presumption of total and permanent disability. The Defendants argued Dr. Drye’s 25% whole person impairment coupled with Clemmons’ ability to return to work within his permanent restrictions provided substantial evidence Clemmons was not totally disabled. The Supreme Court held the mere fact a claimant continues to work, is insufficient to rebut the statutory presumption of permanent and total disability. In so doing, the Court removed the consideration of a claimant’s earning ability in a determination of disability under the scheduled-member statute.
However, the very definition of disability provided by the Act is: an incapacity to earn wages because of an injury. This definition is not reserved for a specific disability statute but rather the definition of disability used for all analysis of disability under the Act.
Chief Justice Pleicones, wrote a separate opinion, concurring in part and dissenting in part, stating evidence revealing a claimant has not suffered a wage loss as a result of the accident is relevant evidence to rebut the presumption of permanent disability.