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Defending Questionable P&T Claims: How to Avoid a Lump of Coal in your Workers’ Comp Stocking

Matthew Riddle

Happy Holidays from the Workers’ Compensation Practice Group at Clement Rivers, LLP!  In preparing this year end article, I reviewed some notable 2018 decisions from our South Carolina appeals courts. This one jumped out at me as particularly instructive – and potentially problematic – for employers and insurance carriers. I hope this summary will provide a helpful guide to evaluate and defend against questionable permanent and total disability claims in 2019 and beyond.

In Dent. v. East Richland County Public Service District, 423 S.C. 193, 813 S.E.2d 886 (2018), a 58 year old claimant injured his lower back while attempting to move a manhole cover in course of his employment as a sewer line maintenance foreman. The claimant was also diagnosed with lung cancer at the same time of his back injury.  The lung cancer later went into remission, but it appears the claimant was disabled from this condition, at least while he was undergoing cancer treatment.

With regard to his back injury, the claimant declined any consideration for surgery and received only conservative treatment.  The authorized treating physician released the claimant to return to work with permanent medium duty work restrictions and a 10% impairment rating. The claimant was unable to return to his job as a sewer line maintenance foreman, based upon the medium duty work restrictions.  The Claimant and his attorney also obtained an IME that stated he had radiculopathy, and had sustained greater than 50% impairment to his back.  The IME physician also concluded that the claimant was unable to return to any type of work, even sedentary duty, as a result of his back injury. Finally, the claimant retained a vocational expert who (surprise, surprise) also concluded that the claimant was unable to return to any type of gainful employment.

The SC Workers’ Compensation Commission placed greater weight on the treating physician’s opinion than the claimant’s IME and voc assessment.  The Commission awarded 35% PPD to the back, denying that the claimant was permanently and totally disabled as a result of his back injury. The Commission also found that the claimant’s lung cancer was a greater barrier to his continued employment than his back injury.

The Court of Appeals reversed the Commission in a split 2 to 1 decision.  The court concluded that the claimant should have received a permanent and total disability award. The court also held that the Claimant’s alleged radiculopathy amounted to a separate injury to his leg, allowing him to seek permanent and total disability benefits under Section 42-9-10. The court further determined that the evidence in the record was insufficient to conclude that the claimant’s lung cancer was a greater disabling factor than his back injury.

In reaching this decision, the Court of Appeals relied on the claimant’s IME and voc assessment. The court appears to have essentially disregarded the contrary evidence from the doctor who had actually treated the claimant.  Judge Thomas in a dissenting opinion stated that the court had improperly acted as a finder of fact, a role typically reserved for the Commission.  He wrote that the court should have affirmed the Commission’s decision, as the treating physician’s opinion was substantial evidence in the record to support a denial of permanent and total disability.

Unfortunately, the SC Supreme Court has declined to review this case.  As a result, Dent v. East Richland County will remain the law of the land in South Carolina unless it is at some point overruled by another appellate decision.

What does this mean for employers and carriers in South Carolina? First, it will be more difficult to argue that a back injury with radiculopathy is a “single body part” injury that limits a claimant to scheduled PPD under 42-9-30.  As a result, practically every back injury case could become a Section 42-9-10 permanent and total disability claim or 42-9-20 partial wage loss claim, increasing the financial exposure associated with these injuries.

The second takeaway is that employers and insurance carriers must now proceed with caution in any case where the claimant obtains expert reports that contradict the findings of a treating physician. A defense IME and/or vocational assessment may be required to avoid a costly P&T award, whereas in the past we could simply rely on the treating physician’s opinion alone. Potential increased costs related to these rebuttal expert opinions may therefore be an unfortunate result of the Dent case.  However, each claim is different, and the decision whether to retain defense experts must still be made on a case by case basis, depending on the facts and circumstances of each particular case.

Please do not hesitate to contact us if you have any questions about back injury claims or questionable allegations of permanent and total disability. We at Clement Rivers, LLP hope you have a safe and happy holiday season!