Posted on Jan 30, 2016

On January 20, 2016, the South Carolina Court of Appeals overturned a Workers’ Compensation Commission ruling that a change of condition must be proven with objective evidence. The decision is important because it can make it easier for injured employees to get workers’ compensation benefits when their condition worsens after settlement or award. Here’s what you need to know about the decision called Paula Russell v. Walmart Stores.

Case Facts

Ms. Russell worked as an assistant store manager for Walmart. She hurt her low back and pelvis lifting something at work. Eventually, a workers’ compensation commissioner ruled she had reached maximum medical improvement, giving her a 7 percent permanent disability award plus medication that helped her keep working.

Nine months later, Ms. Russell filed a new claim, asserting her condition had worsened, requiring surgery. At a hearing, she testified about new symptoms, including pain running from her back into her legs and shaking.  The single commissioner believed her, relying on her doctors’ testimony and ruling she suffered a change of condition. The commissioner ordered Walmart to provide medical care and temporary total disability benefits

On appeal, the full Workers’ Compensation Commission overturned that order. The full Commission ruled that Ms. Russell failed to prove her change of condition with objective evidence, noting her MRI before the first award looked the same as the one in her new case.

The appeals court decision hinged on whether Ms. Russell needed to prove her case with objective or subjective evidence.

Objective and Subjective Evidence

In workers’ compensation cases, objective evidence basically means medical tests like X-rays, MRIs, and CT scans. 

Subjective evidence basically means complaints by the hurt worker. Note that we call them reports because our clients are reporting what’s wrong with them, not whining for the sake of it. This includes pain and limitations, especially difficulties and inability to do work tasks or basic daily activities. 

The Ruling

So what did the appeals court say about the type of evidence that carries the day when your injury gets worse after an initial award? The Court of Appeals cited several cases ruling that the law makes no requirement for objective evidence. In fact, change of condition decisions can be based on either type of evidence, all by itself. 

The Court ruled that the full Commission ignored Ms. Russell’s medical testimony. One of her doctors testified that her condition changed, even if it wasn’t shown by objective evidence. He based that on her reports of pain.  Another doctor testified that Ms. Russell’s condition had become more painful.

The appeals court concluded that the Commission mistakenly required Ms. Russell to prove her change of condition with objective evidence.

Easier Doesn’t Mean Easy

This decision does not mean a change of condition case is a slam dunk for an injured employee. You can’t just walk into the doctor’s office and say, “I’m worse.” Far from it. First, the door must be left open for you to get additional relief. That means taking the possible need for future medical care into consideration in your FIRST injury case, which is why you should discuss these complex settlement matters with a workers’ comp lawyer when you originally get hurt. 

If you’ve got a change of condition case, you face an insurance company that’s already paid up and closed its file. Expect them to be most unhappy when you return to them asking for more care. Even if you deserve it, expect a fight.

If you’ve got a prior workers’ comp case and are now worse, or you just got hurt and are worried about your medical future, start a live chat with us right now so we can get to work protecting your rights.  


Rob Usry
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Rob is a Spartanburg personal injury lawyer. Rob also practices as a workers' compensation attorney.