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Dicta in Clemmons v. Lowe’s Home Centers, Inc.

Leslie Whitten

The Court of Appeals recently decided the case of Clemmons v. Lowe’s Home Centers, Inc.  At first glance, the bottom line here is that the appellate courts will give deference to Findings of Fact by the Workers’ Compensation Commission, as long as those findings are supported by “substantial evidence.”  Nothing new there.

The claimant did make some novel arguments, namely that an employer/carrier cannot request a hearing on permanency because of due process rights and that the Commission does not have authority to hear a case on permanency unless the claimant requests the hearing.  The court rejected these arguments as the claimant is given every opportunity to be heard in a hearing requested by the employer/carrier, and the SC statute clearly allows for what we call Form 21 hearings on permanency issues.  This is interesting, but ultimately the court made the decision we all expected.

For the most part, this case was very fact specific. The claimant was awarded 48% to the back, and he thought he should have been awarded 50% or more for the Commission to find him permanently and totally disabled.  The claimant had doctors to support him, and the defense had doctors supporting the opposite position, but ultimately the Commission is the finder of fact.  Here’s where it gets interesting.  The court then noted

Finally, Clemmons argues that even if loss of earning capacity is a proper consideration in deciding permanent total disability under section 42-9-30, substantial evidence indicates he is permanently and totally disabled because his vocational evaluation determined he was excluded from more than 99% of the job market in the United States. Clemmons’s argument erroneously attempts to infuse loss of earning capacity into the analysis of permanent total disability under section 42-9-30. Although Clemmons’s exclusion from the job market would be an appropriate consideration when deciding permanent total disability under section 42-9-10, it is irrelevant under section 42-9-30. See Watson, 399 S.C. at 464, 732 S.E.2d at 195. Accordingly, we affirm the Appellate Panel as to this issue.   p. 12-13.

Did you catch that?  The court just said that if someone has a single member injury to the back, the claimant’s  exclusion from the job market is irrelevant.

Let’s take a step back and make sure we’re all on the same page.  The law allows for a permanent and total disability (500 week) award in two primary circumstances:  (1) When the claimant injures more than one scheduled member and is unemployable; or (2) when the claimant has sustained 50% or more disability to the back.  In 50% or more to the back cases, there is a rebuttable presumption that the claimant is permanently and totally disabled.

Practically, in serious back injury cases, both sides typically obtain vocational assessments so that they can show that, at least as a factor in determining disability, the claimant is able or unable to work.  I am certainly not advising that we stop this practice, but this is food for thought.  We have language here that the commissioners should only be looking at how bad the claimant’s back is, not whether or not the claimant is employable, in awarding back only claims.

It should also be noted here that this claimant sustained injuries both to his neck and low back.  The court found that the 48% rating encompassed both body parts.  Thus, this case also provides a cogent argument that injuries to two different areas of one scheduled member still just constitute one scheduled member.  This comes up fairly regularly, and this decision at least gives us some precedent on that, even if it is dicta.  Again, in a case that does not involve 50% or more disability to the back, a claimant can only receive a permanent and total disability award if he has more than one scheduled member and is unemployable.  What this language seems to say that if a claimant has a terrible injury to his left knee and his left ankle and is clearly unemployable, he is not eligible for a permanent and total disability award because he has injured only one scheduled member – the left lower extremity.

So, does this case mean we can expect to win all those back only cases where the claimant alleges permanent and total disability? No.  Does it mean a commissioner won’t be likely to award 50% or more to the back to a claimant who is unable to return to his job of 40 years because of his restrictions from his back injury?  Not necessarily.  However, it does perhaps provide employer/carrier’s something they did not have before in bad back cases and cases with multiple injuries to one scheduled member:  nuance.  We have some pretty good language now, and that’s not nothing.