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Lemonade in 2021?

Robert Gruber

Steven Rodenberg wrote a blog in January of 2020 entitled “Happy New Year?” No, Steven does not have the gift of prophecy even though he certainly appeared prophetic when he added that question mark.   Rather, Steven was reporting on a Court of Appeals case of David B. Lemon v. Mt. Pleasant Waterworks and State Accident Fund in which the Court of Appeals addressed the carrier’s right to claim a credit for disability benefits paid to the claimant as a result of prior claims against the same employer.

Lemon was involved in an admitted work accident on May 8, 2012 in which he suffered an injury to his low back affecting both legs. Prior to that 2012 accident, Lemon suffered four separate work-related accidents resulting in workers’ compensation claims against Mt. Pleasant Waterworks and the State Accident Fund.   Lemon received 199 weeks of compensation benefits, both as temporary and permanent disability benefits, from four prior claims. The carrier asked that these 199 weeks of disability benefits be applied as an offset or credit against his award of permanent disability to be received as a result of the May 8, 2012 accident pursuant to S.C. Code Ann. §42-9-170(B).

The Commission found the claimant permanently and totally disabled under S.C. Code Ann. §42-9-10(A) and awarded the carrier a total of 321 weeks of credit (199 weeks for disability benefits paid on the four prior claims and 122 weeks for TTD paid on the 2012 claim).  The Court of Appeals reversed the Commission’s award of 199 weeks for the prior claims based upon a narrow reading of S.C. Code Ann. §42-9-170(B).  For a detailed analysis of the Court of Appeals decision, please review Steven’s January 2020 blog.

The Court of Appeal’s opinion makes it more difficult for a carrier to claim and obtain a credit for all indemnity benefits paid on prior claims with the same employer.  Thus, Lemon is a “lemon” for employers and carriers.  However, the carrier filed a Petition for Writ of Certiorari (appeal) with the South Carolina Supreme Court to review the Lemon case, and the Court granted carrier’s Petition on October 18, 2020.  The Court could have declined employer’s Petition; therefore, their choice to consider employer’s appeal is encouraging.  Perhaps the Supreme Court will change Lemon from a “lemon” into lemonade in 2021.  Clement Rivers, LLP will cover the appeal gavel to gavel.  As always, contact us with any questions about how this could affect your claims.