Yesterday, in a divided decision, the Supreme Court of South Carolina, overruling an earlier decision of the state’s Court of Appeals, held that evidence of subsequent employment is insufficient by itself to rebut the presumption of permanent and total disability where the injured employee has sustained greater than 50 percent loss of use to his back [Clemmons v. Lowe’s Home Ctrs., 2017 S.C. LEXIS 55 (Mar. 8, 2017); see S.C. Code Ann. § 42–9–30(21)]. Accordingly, where all the expert medical evidence indicated the employee had suffered at least 70 percent impairment to his back, he should have been awarded PTD benefits under the S.C. Workers’ Compensation Act’s schedule of benefits. He should not be penalized for returning to work.
Clemmons severely injured his back in September 2010, when he slipped and fell while assisting a customer at his employer’s retail facility. Clemmons visited neurological specialist, Dr. Randall Drye, and was diagnosed with a herniated disc that required immediate surgery. Dr. Drye removed Clemmons’ herniated disc and fused his C5 and C7 vertebrae by screwing a rod into his spine. After surgery, in spite of extensive inpatient and outpatient physical rehabilitation, Clemmons continued to experience pain in his neck and back, as well as difficulty balancing and walking.
Clemmons sought workers’ compensation benefits. The employer admitted the claim and agreed to pay TTD benefits until Clemmons reached MMI or returned to work. In June 2011, Dr. Drye determined Clemmons had reached MMI and, pursuant to the AMA Guides (5th Ed.), assigned Clemmons a whole-person impairment rating of 25 percent based on his cervical spine injury, which converts to a 71 percent regional impairment to his spine. Dr. Drye also determined that Clemmons could return to work at Lowe’s subject to certain permanent restrictions. A few months later, Lowe’s agreed to accommodate Clemmons’ restrictions and permitted him to return as a cashier.
One year later, Dr. Drye conducted a follow-up evaluation and reached the same conclusion. Thereafter, Lowe’s requested a hearing to determine whether Clemmons was owed any permanent disability benefits.
Prior to the hearing, Clemmons saw a number of other medical professionals for additional opinions regarding his condition. A physical therapist assigned Clemmons a 36 percent whole-person impairment rating and a 91 percent regional impairment rating with respect to his back Dr. Leonard Forrest, of the Southeastern Spine Institute, also evaluated Clemmons and assigned a whole-person impairment rating of 40 percent, which translates to a 91 percent regional impairment to his back. Both of these ratings were given pursuant to the AMA Guides (5th Ed.). In addition to the AMA Guides impairment ratings, Clemmons presented medical testimony from a general practitioner, Dr. Gal Margalit, who opined to a reasonable degree of medical certainty that Clemmons had lost more than 50 percent of the functional capacity of his back.
The Single Commissioner determined that Clemmons was not permanently and totally disabled, that Clemmons sustained only a 48 percent injury to his back, and, therefore, was limited to a PPD award. The full Commission affirmed, as did the Court of Appeals, which found the Commission’s findings of fact were supported by substantial evidence.
Supreme Court’s Decision
A majority of the Supreme Court agreed with Clemmons’ contention that all the medical evidence indicated he had suffered more than a 50 percent loss of use to his back. This was an important factor, since under S.C. Code Ann. § 42–9–30(21), where there is 50 percent or more loss of use of the back, there is a rebuttable presumption that the injured employee suffered PTD.
The majority found that the Commission’s conclusion with respect to loss of use was unsupported by the substantial evidence in the record. Specifically, there was no evidence in the record that Clemmons suffered anything less than a 50 percent impairment to his back. Every doctor and medical professional who assigned an AMA Guides impairment rating indicated Clemmons lost more than 70 percent of the use of his back, including Dr. Drye, whom the Commission particularly relied on in making its findings. Moreover, there was nothing in the record to support the Commission’s finding of a 48 percent impairment rating. Based on the record, the majority found that Clemmons was presumptively permanently and totally disabled.
Presumption of PTD Not Rebutted
The majority further held that the presumption of PTD had not been rebutted. The majority said the Court had never “squarely addressed whether return to employment may be considered to rebut the presumption of permanent and total disability” [2017 S.C. LEXIS 55]. The majority acknowledged that in Watson v. Xtra Mile Driver Training, Inc., 399 S.C. 455, 464–65, 732 S.E.2d 190, 195 (Ct. App. 2012), the S.C. Court of Appeals held evidence of a claimant’s mere ability to return to work within her restrictions was alone sufficient to rebut the presumption of total permanent disability under § 42–9- 30(21). As noted below, the majority disagreed with the Watson decision, stating that “the mere fact a claimant continues to work is insufficient to defeat the presumption of permanent and total disability for loss of use of the back” [2017 S.C. LEXIS 55].
Competing Models of Workers’ Compensation Benefits
The majority noted the two competing models of benefits in workers’ compensation: the economic model—which defines a claimant’s disability and incapacity in terms of loss of earning capacity resulting from the injury—and the medical model—which bases awards for disability upon the degree of medical impairment to specified body parts. The majority added that the Act provided two methods of obtaining total disability compensation: (1) total disability under the general disability statute; and (2) scheduled disability under the scheduled-member statute. While the general disability statute was premised on the economic model, the scheduled-member statute clearly relied upon the medical model, incorporating a presumption of lost earning capacity.
The majority continued, that to allow a claimant’s ability to work alone to rebut the presumption of PTD undermined the established principle that the scheduled-member statute was separate and distinct from the general disability statute. The majority stressed:
As a policy matter, to allow a claimant’s ability to work to rebut the presumption of total and permanent disability would have the undesirable effect of discouraging claimants from returning to the workforce. Moreover, we note it is a misnomer to say Clemmons fully “returned to work” in this case. While it is true he returned to the same job as a cashier, his duties were significantly reduced in light of his condition. We believe a claimant wanting to work and being willing to accept a less demanding position in order to do so is something to be commended, rather than to be used to deny him benefits. Therefore, we hold evidence of subsequent employment is insufficient by itself to rebut the presumption of permanent and total disability under section 42–9–30(21), and the holding in Watson is overruled.
[2017 S.C. LEXIS 55].
The majority concluded that except for Clemmons’ return to modified work duty, the employer offered no evidence that Clemmons’ back impairment was less than 70 percent. Clemmons was, therefore, entitled to PTD benefits under § 42–9–30(21).
Acting Justice Pleicones concurred in part and dissented in part, in a separate opinion. The acting justice argued that upon remand, the employer should be given an opportunity to rebut the presumption of PTD. Pleicones indicated the Court had before it the novel issue of what evidence was relevant to rebut the presumption of PTD when there was a finding of loss of 50 percent or more use of the back under the scheduled member statute. The back is the only scheduled member where the disability presumption is “rebuttable,” a statutory change made in 2007. Pleicones said that the fact that a claimant has not suffered wage loss is relevant rebuttal evidence.