Workers’ Compensation Legal Aid
GWB’s Workers’ Compensation Team concentrates its practice exclusively on the defense of employers, insurance carriers, self-insured corporations, third party administrators, and claims-servicing agencies for claims arising out of matters in South Carolina and North Carolina.
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Recent South Carolina Workers Compensation Appeals
In a recent decision filed on March 22, 2017-Wilson v. Charleston County School District-the South Carolina Court of Appeals allowed a claimant to pursue a change of condition claim for a psychological overlay injury more than three years after the last payment of compensation where the medical evidence failed to clearly demonstrate that the change of condition manifested itself within the one year change of condition period.
Although the language of South Carolina Code Ann. §42-17-90(1) reads that “no such review shall be made after 12 months from the date of the last payment of compensation pursuant to an award provided by this Title,” the Wilson court found that the plain and unambiguous meaning of this statute indicates that a Notice of Claim (i.e., a Form 50 not requesting a hearing) is sufficient and that a Hearing Request is not required, so long as a Notice of Claim is filed within the one year change of condition period.
Further, and perhaps most surprisingly, the Wilson court found that because a Notice of Claim was properly filed within the one year period, the claimant did not have to demonstrate through medical evidence that the change of condition in fact occurred during the one year change of condition period. Although there was evidence to support that the claimant’s psychological condition worsened at some point subsequent to her first hearing, the Appellate Panel found there was no medical evidence establishing a worsening of the claimant’s depression during the one year change of condition period.
The Court of Appeals, however, found this to be inconsequential, stating that the Legislature did not intend to impose a requirement that the change of condition fully develop into a serious condition within the one year period following the last payment of compensation, again, so long as the claimant satisfies the one year notice requirement.
To review the full opinion, please follow this link: Wilson v. Charleston County School District.
As always, please contact one of our South Carolina attorneys with any questions or concerns regarding the recent event.
Recent SC Supreme Court Decision Could Drastically Impact Your SC Back/Neck Injury Claims
A shocking decision was handed down by the South Carolina Supreme Court on March 8, 2017-Clemmons v. Lowe’s. The claimant in Clemmons sustained an admitted neck injury requiring a two-level cervical fusion. After attaining MMI, he was assigned 25 percent whole person impairment, which converts to 71 percent regional impairment to the cervical spine. The claimant retained two additional experts who also offered opinions on the extent of regional impairment the claimant had sustained to the cervical spine, 91
The claimant retained two additional experts who also offered opinions on the extent of regional impairment the claimant had sustained to the cervical spine, 91 percent and 99 percent respectfully. At the hearing, the Single Commissioner found the claimant sustained 48 percent PPD to the back, based upon the fact that he had been back to work in a limited capacity for roughly two years at the time of the hearing and had been assigned 25 percent whole person impairment by the ATP. Considering that disability awards to the spine have always been based on the whole person impairment which has long been considered equivalent to impairment for the entire spine, and not the regional equivalent expressed in terms of impairment to the involved spinal region, not surprisingly, the Single Commissioner’s findings were upheld by the Full Commission and Court of Appeals. However, the claimant appealed to the Supreme Court, contending that substantial evidence did not support an award of less than 50 percent disability to the back. Unfortunately, the Court characterized the converted regional ratings to the cervical spine as
However, the claimant appealed to the Supreme Court, contending that substantial evidence did not support an award of less than 50 percent disability to the back. Unfortunately, the Court characterized the converted regional ratings to the cervical spine as regional impairment to the entire spine. This distinction was critical and, unfortunately, it appears to have been missed entirely by the Court, as evidenced by the Court stating “[w]hile there is medical evidence that Clemmons’s whole person was impaired less than 50 percent, the issue under the scheduled-member statute is not impairment as to the whole body, but rather it is the loss of use of a specific body part-in this case, Clemmons’ back.” Respectfully, it does not appear that during oral arguments it was pointed out to the court that the regional impairment ratings were expressed in terms of the involved region-the cervical spine-and not the entire back.
At any rate, this omission led the Court to conclude that the medical evidence could only lead to one conclusion: that the claimant suffered more than 50 percent disability to the spine.
Of almost equal concern, the Court held that the fact the claimant had returned to work was not sufficient to rebut the presumption of permanent and total disability under section 42-9-30(21) and more broadly held that evidence of subsequent employment will always be insufficient by itself to rebut the presumption of permanent and total disability under that section. In so holding, the Court delineated between the economic model, which defines a claimant’s disability and incapacity in terms of his 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, and stated: ”[s]eparating wage loss from the analysis in establishing the presumption, only to allow earning capacity to come in after the fact and conclusively rebut it, renders the presumption meaningless.”
Given that evidence concerning earning capacity is now apparently irrelevant for purposes of rebutting the statutory presumption of total disability when an injured worker has sustained 50 percent or greater disability to the back, the question now becomes what evidence would be relevant to rebut this presumption.
Obviously, this decision presents new challenges to the South Carolina Workers’ Compensation Defense Bar and will impact how we defend back claims going forward. To read more regarding this decision and our analysis of its potential impact, click here. To read the Clemmons decision in its entirety, click the link above. There is much more to discuss as it relates to this opinion, and other recent appellate decisions. Please let us know if you are interested in a Case Law Update presentation. We would greatly appreciate the opportunity.
As always, please contact one of our South Carolina attorneys with any questions or concerns regarding the recent event.
Adjusters, Carriers & Employers (A.C.E.) Workers’ Compensation Bulletins
North Carolina Industrial Commission Releases Document Help List
January 5, 2017 – The North Carolina Industrial Commission (NCIC) has released a helpful reference sheet for electronic filing. The reference sheet lists all documents that should be filed electronically via EDFP in North Carolina as well as the purpose of each item. Please click the link below to download a copy of the Electronic Document Help List.
Form 14B (Physician’s Statement) Modified a Second Time by SCWCC
December 13, 2016 – The South Carolina Workers’ Compensation Commission has once again revised the Form 14B, Physician’s Statement, in an effort to further direct the treating physician to address all of the relevant information needed to determine issues of permanency and ongoing medical treatment.
Please note that the SCWCC will require the updated Form 14B to be completed by the authorized treating physician beginning on March 1, 2017. After this date, we anticipate that the Commissioners will refuse to review/approve settlements or address litigation with unrepresented claimants if prior versions of the Form 14B have been completed. For your convenience, we have included a link to the newest Form 14B.
As always, please contact one of our South Carolina attorneys with any questions or concerns regarding the recent revision implemented by the SCWCC.
Form 14B (Physician’s Statement) Modified for Clarity in South Carolina
September 8, 2016 – The Commission has modified the Form 14B for the purpose of clarifying information on whether or not future medical care and treatment will be required. (R67-802 and R67-803).
Pursuant to Section §42-15-60 (B) (1) of the South Carolina Code of Laws:
When a claim is settled on the commission’s Agreement for Permanent Disability/Disfigurement Compensation form, the employer is not required to provide further medical treatment or medical modalities after one year from the date of full payment of the settlement unless the form specifically provides otherwise.
- For injuries occurring on or after July 1, 2007 which require future medical care and treatment, settlements on the Commission’s Form 16A (Agreement for Permanent Disability/Disfigurement) must be accompanied by a Form 14B.
- The Commission’s Form 14B is required when a matter is to be resolved at an informal conference or when a Form 16A (Agreement for Permanent Disability/disfigurement) is submitted to the Commission for approval.
- The Form 14B or a physician’s narrative report is required when a Commissioner is considering Final Agreement and Release documents where the Claimant is not represented by Counsel.
- The Form 14B or a narrative report from the treating physician is required for proper filing by the Defense to request stop payment of compensation citing the Claimant has reached maximum medical improvement.
Click here to use the most recent 14B Form available on the Commission’s website.
IMPORTANT UPDATE: Regarding Informal Conferences and Form 16A Settlements in South Carolina
July 7, 2016 – Effective July 7, 2016, the South Carolina Workers’ Compensation Commission updated the procedure regarding Form 16 and Form 16A settlement approval following an informal conference. Now, upon completion of a successful Informal Conference, the Deputy Commissioner will make a recommendation by signing the Form 16/16A and forwarding it to the Jurisdictional Commissioner for approval. If approved, the Commission will email the approved form to the adjuster or attorney for the carrier via email. If the Commissioner does not approve the recommended settlement, the case will be sent to the next Jurisdictional Commissioner to be set for a hearing. Please see the attached notice for additional information.
The most immediate impact of this change is that Form 16A settlements will no longer be considered final following the Informal Conference; rather they will be finalized only after approval by the Jurisdictional Commissioner. Considering there is an additional step added to the procedure, we anticipate additional time will be required to finalize Form 16/16A settlements in the future. Additionally, please be advised that failed Form 16A settlements will now result in the matter being set for a hearing, which is consistent with the current practice for failed clincher conferences.
Should you have any questions about this update, please do not hesitate to contact one of our South Carolina workers’ compensation defense attorneys in the Greenville, Columbia, or Charleston offices.
Workers’ Compensation Team
- Amber Dorrell - Partner
- Ellen Goodwin – Of Counsel
- Amity Edmonds – Associate
- Blakely Molitor – Associate
- Ryan Nichols – Associate
- J. Twehues – Associate
- Thomas Lamm, Jr. – Associate
- Matthew Gerber – Associate
Nicholson v. South Carolina Department of Social Services
With the South Carolina Supreme Court’s recent decisions, in the cases of Nicholson v. South Carolina Department of Social Services, Opinion No. 27478 (S.C. Sup Ct.) (January 14, 2015) and Barnes v. Charter 1 Realty, Opinion No. 27479 (S.C. Sup. Ct.) (January 14, 2015), defendants will need to adjust their litigation strategies going forward in workers’ compensation cases involving unexplained or idiopathic falls.
New Continuing Education Program Offered by Workers' Compensation Team
GWB is pleased to announce their new workers’ compensation continuing education program for Adjusters, Carriers, and Employers, A.C.E. A.C.E. is designed to provide educational opportunities in the form of engaging accredited Continuing Education Units (CEUs) at no cost.
GWB Secures Significant Second Injury Fund Reimbursement for Client
Gallivan White Boyd (GWB) attorney Jared M. Pretulak secures a significant Second Injury Fund reimbursement award on behalf of his clients before the South Carolina Court of Appeals.