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South Carolina’s Tough Two-Injury Rule for Workers’ Compensation Total Disability

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On March 28, 2018, the South Carolina Court of Appeals released a decision on who qualifies for total disability under the state workers’ compensation rules. The decision might raise eyebrows because it shows how hard it can be to win disability benefits. The case is called Dent v. East Richland County Public Service District.

The case is an excellent study for two principles of South Carolina worker’s compensation:

  • You don’t have to be helpless to get total disability.
  • It can be a real challenge to get total disability get without an experienced attorney who truly knows the law and understands how to make it work for you.

This is especially true if your case involves the “Two-injury rule.” Let’s look at the background for the case.

The Employee and the Injury

James Dent worked as a sewer line maintenance foreman. He worked for his employer for 27 years. On May 1, 2012, he got hurt while attempting to move a manhole cover.

As required by South Carolina’s workers’ compensation law, he went to a doctor paid by the employer’s insurance company. That doctor diagnosed him with low back pain and lumbar radiculopathy. Remember this for later: radiculopathy is a spinal injury damaging the nerves leading to the legs, causing leg pain, weakness, numbness, and tingling.

Later, Dent got a doctor of his own for a second opinion, also called an independent medical examination.

The Providers Disagree Over the Extent of the Injury

One of the most important parts of a workers’ compensation case is figuring out the extent of a permanent injury, so the employee can be compensated with a fair cash settlement. The settlement is based on a permanent impairment rating given by the doctor after the employee reaches maximum medical improvement.

In Dent’s case, the providers disagreed about his permanent impairment. The doctor hired by the insurance company assessed a 10% permanent impairment rating. The doctor hired by Dent concluded he lost more than 50% of his back and couldn’t return to work. This would leave Dent presumed to be totally disabled under workers’ comp law.

Dent also got a vocational evaluation, which declared him disabled due to an inability to obtain or keep future employment as a result of his injuries.

Dent’s attorney asked the workers’ compensation commission to give Dent permanent total disability on two grounds: he’d lost his ability to work and he’d lost over 50% of his back. The Commissioner denied it at a hearing, which got upheld on the first appeal. Dent then appealed to the Court of Appeals.

The Two-Injury Rule

The Court of Appeals decided two very important questions.

The Court first dealt with whether Dent even qualified for total disability under the two-injury rule. That rule often limits settlements to the value assigned by law to certain body parts. But, as the name suggests, the two-injury rule has an exception: an employee qualifies for total disability if his injury affects another body part.

Citing recent rulings, the Court revealed what “affects” means: the other body part must be injured or impaired.

The Court ruled Dent qualified. His back injury caused additional injury or impairment to his right leg in the form of pain, numbness, and weakness. The doctors noted his diagnosis of lumbar radiculopathy.

The next question became: did Dent prove he should be totally and permanently disabled under comp law?

Permanent and Total Disability for Loss of Earning Capacity

The Court revealed South Carolina’s surprising definition of workers’ comp total disability: Total disability does not require complete helplessness. The generally accepted test of total disability is inability to perform services other than those that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist.

As for Dent, a lifelong manual laborer, the Court went further. It pointed out the inability to perform manual labor can be total disability for workers who aren’t qualified for any other type job.

The Court ruled Dent proved himself totally disabled due to an incapacity for the only work he’s qualified to do. While the doctor hired by the insurance company felt Dent qualified for medium duty, the Court disagreed. Dent’s doctor declared he couldn’t even work in a sitting job and didn’t see Dent able to learn the skills to work that type of position. His physical therapist found him capable of only sitting work. The vocational evaluation found him unable to get another job due to factors including:

  • Advancing age.
  • An inability to do sitting work due to incompatible skills. Dent’s math, spelling, and reading skills remained at elementary school levels.

Maybe most importantly, the Court noted Dent’s entire work history consisted of heavy labor, and all experts agreed he couldn’t do that anymore. Based on all this, two of three judges on the panel found Dent should get total disability.

A dissenting judge voted to uphold the denial of benefits. We’ll see if that spurs a defense appeal.

Moral

If you’re seriously hurt, the ability to do your job may be in jeopardy. That’s when securing the best possible financial and medical settlement becomes vital for you.

You need an experienced workers’ compensation attorney to protect you. As you’ve seen above, insurance companies fight hard to save money from folks who need it desperately. They often stop at nothing to prevent benefits to those who deserve them the most.

If you need questions answered about preserving your only shot at benefits, start a live chat right where you are. An experienced workers’ comp attorney will respond. Or you can just call us at 888-230-1841 for a free strategy session with our workers’ comp attorney to start making your case for these benefits you can’t risk losing.

 

Rob Usry
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Rob is a South Carolina personal injury and criminal defense lawyer.
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