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Low Impairment Ratings Don’t Necessarily Prevent a Big South Carolina Workers’ Comp Settlement—If You Know What You’re Doing

In a nutshell, this is a case where intense time and labor enabled us to add a lot of value to a South Carolina worker’s compensation client’s claim by connecting the dots for a much larger settlement no one realized was possible until we got involved.

In South Carolina worker’s comp, two types of settlements provide the most expensive benefits: permanent and total disability or wage loss. By the way, permanent and total disability or P&T, as it’s called, doesn’t mean you’re helpless—or even that you can never work again.

Bubba worked as a machinist at a plant in Duncan, South Carolina. He got hurt as he tripped and fell violently on the sidewalk while entering the plant, landing on his hands and knees. The fall injured his right knee, right shoulder, left wrist, left thumb, and upper back, specifically his thoracic spine.

Bubba’s “Do-It-Yourself” Workers’ Comp Case Falls Flat, But He Rescues it Just in Time

For two years or so, Bubba went it alone, representing himself. By the time he got to us, Bubba’s case was not only medically complex but time-sensitive. When we got involved, he’d already had three shoulder operations and one to his knee. He underwent a right shoulder rotator cuff and SLAP tear repair, followed by manipulation under anesthesia with a clean out. He also underwent a right knee operation to repair a torn medial meniscus. 

Bubba was also treated for less serious injuries from the accident, including a cartilage tear in his left wrist and tennis elbow. Neither needed surgery.

The time crunch came from the fact the workers’ comp insurance company began to pressure him to settle. But Bubba’s operations left him without a satisfactory recovery—he needed second opinions. When he voiced these concerns, the insurance company just ignored them—renewing its pressure to settle.

Bubba was overwhelmed. He couldn’t get the insurance company to do anything. But he did the right thing—he sought the advice of a friend on a potential workers’ comp attorney he could trust. That friend referred him to us, and we got to work on a case that eventually gave Bubba a solid settlement he told us he’d never have gotten alone. 

Bubba Hires an Attorney—and Things Finally Start Happening

When Bubba hired me, there was no time to waste. It took many hours for us to compile Bubba’s providers, get their medical records, obtain summaries of the records, and critically analyze their contents. 

Bubba needed a second opinion for his knee, shoulder, and back. I made sure he got one scheduled for his knee. The insurance company hired an attorney to defend it, for which I was grateful. It showed they were finally taking the case as seriously as Bubba. It gave me someone to reason with besides the adjuster since that sometimes does little good.

I convinced opposing counsel to finally give Bubba the second opinions he needed.

Potential Big Problem—Low Impairment Ratings

One of the most important numbers in any South Carolina workers’ comp case is the doctor’s medical impairment rating. Before he hired us, Bubba got the following ratings:

  • 2% to his left arm
  • 0% to his thoracic spine
  • 3% to his right knee

Taken alone, these seem meager.

We Crack the Case and Those Low Impairment Ratings Pale in Comparison to Our Strategy

The big break in Bubba’s case came from the second opinion for the knee. While the surgeon concluded Bubba needed no more surgery, he did order a functional capacity evaluation (FCE). Doctors use those to set permanent work restrictions in workers’ compensation cases, which is also a major factor in settlement amounts.  

I carefully reviewed the knee FCE record more than once, which brought about a revelation changing our strategy. I realized that while the FCE evaluated his knee, it also contained important limitations relating to his shoulder—the ability to lift, carry, push, and pull. It yielded evidence his lingering knee and shoulder problems kept him from continuing work as a machinist. 

Most importantly, from a legal standpoint, the FCE established these limitations stemmed from injuries to two body parts, qualifying him under South Carolina’s harsh two-injury rule for workers’ comp permanent and total disability or wage loss benefits.

But Wait—That Wasn’t All: More Big Problems Solved

But qualifying for those benefits doesn’t mean you actually get them—you’ve got to prove that. Bubba’s case presented some complications that required me to carefully think and act: 

  • While he worked as a machinist when he got hurt, he’d actually taken a voluntary demotion to that position three years before.  For the 27 years before that, he worked as a supervisor, a presumptively less physically demanding position, making it even harder to prove he should get high benefits. 
  • Because I didn’t know the extent of Bubba’s employability, I sought the advice of an expert: a trusted, honest vocational evaluator.  I got his thoughts on the potential outcome of a vocational evaluation, which could provide an expert assessment of what jobs Bubba could do with his work restrictions, including whether he could do his current or former work. 
  • Bubba’s case was further complicated by a severe prior condition in his back. Starting in 2007, he had three low back, or lumbar spinal, operations:  two discectomies and, after the last one failed, the implantation of a spinal cord stimulator.  I had to carefully point out that he hurt his upper back in this work injury, but we also had some evidence this injury may have made the low back worse, as his private pain management doctor made a comment to him about that. I gently used this point to help spur negotiations.
  • Because Bubba was Medicare-eligible soon, the defense grew concerned about a potential Medicare Set Aside trust. That’s where settlement money is legally required to be “set aside” to pay for workers’ comp medical care so Medicare doesn’t have to. It didn’t concern me much, as my primary concern was the wisdom of settling the case or pressing on. But it was a factor, requiring me to research the implications of Medicare in workers’ comp cases and explain it to Bubba.

Using all the evidence I had compiled and analyzed, plus the expert’s input, I could wisely and honestly advise Bubba about the risks and benefits of settling.

Opposing counsel understood the risks Bubba posed to the insurance company and moved to end those risks with a settlement that worked for Bubba.  

Mission Accomplished

We settled for $205,000, achieving Bubba’s goal of financial stability for himself and his family. When Bubba told me how he felt about his case result, he was characteristically straight to the point: he was amazed.

I’m proud our efforts resulted in a well-executed strategy to support a potential permanent and total disability finding and justify a substantial wage loss claim—resulting in a settlement with way more value than Bubba could’ve gotten on his own, especially in light of the previous ratings.

$205,000

Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a criminal defense attorney.