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Clemmons v. Lowe's Home Centers, Inc.-Harbison

Supreme Court of South Carolina

March 8, 2017

Henton T. Clemmons, Jr., Employee, Petitioner,
v.
Lowe's Home Centers, Inc.-Harbison, Employer, and Sedgwick Claims Management Services, Inc., Carrier, Respondents. Appellate Case No. 2015-001350

          Heard September 21, 2016

         ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

         Appeal from the Workers' Compensation Commission

          Preston F. McDaniel, of McDaniel Law Firm, of Columbia, for Petitioner.

          Helen F. Hiser, of Mount Pleasant, and Kelly F. Morrow, of Columbia, of McAngus Goudelock & Courie, for Respondents.

          HEARN JUSTICE.

         In this case we must determine whether a claimant's ability to work can affect his entitlement to disability benefits under the scheduled- member statute of the South Carolina Workers' Compensation Act (the Act). Petitioner Henton T. Clemmons, Jr. injured his back and neck while working at Lowe's Home Center in Columbia. Although all the medical evidence indicated Clemmons had lost more than fifty percent of the use of his back, the Workers' Compensation Commission awarded him only permanent partial disability. The court of appeals affirmed. Clemmons v. Lowe's Home Ctrs, Inc.-Harbison, 412 S.C. 366, 772 S.E.2d 517 (Ct. App. 2015). We now reverse and hold evidence of a claimant's ability to hold gainful employment alone cannot preclude a determination of permanent disability under the scheduled-member statute.

         FACTUAL/PROCEDURAL BACKGROUND

         In September 2010, Clemmons was assisting a customer at Lowe's when he slipped and fell, severely injuring his back. Clemmons visited neurological specialist, Dr. Randall Drye, and was diagnosed with a herniated disc which caused severe spinal cord compression and necessitated immediate surgery. Dr. Drye removed Clemmons' herniated disc and fused his C5 and C7 vertebrae by screwing a rod into his spine. After surgery, Clemmons underwent extensive inpatient and outpatient physical rehabilitation; however, he continued to experience pain in his neck and back, as well as difficulty balancing and walking.

         Clemmons filed a workers' compensation claim to recover medical expenses and temporary total disability benefits. Lowe's admitted Clemmons had suffered an accepted, compensable injury in the course of his employment and agreed to pay temporary total disability benefits until Clemmons reached maximum medical improvement (MMI) or returned to work.

         In June 2011, Dr. Drye determined Clemmons had reached MMI and, per the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides), assigned Clemmons a whole-person impairment rating of twenty-five percent based on his cervical spine injury, which converts to a seventy-one percent regional impairment to his spine. Dr. Drye also determined Clemmons could return to work at Lowe's subject to certain permanent restrictions.[1] A few months later, Lowe's agreed to accommodate Clemmons' restrictions and permitted him to return as a cashier.

         In June 2012, Dr. Drye conducted a follow-up evaluation and reached the same conclusion he had a year earlier-that Clemmons had reached MMI and required the same permanent work restrictions. Thereafter, Lowe's requested a hearing before the Commission to determine whether Clemmons was owed any permanent disability benefits.

         Prior to the hearing, Clemmons visited a number of medical professionals for additional opinions regarding his condition. Physical therapist Tracy Hill evaluated Clemmons and, pursuant to the AMA Guides, assigned him a thirty-six percent whole-person impairment rating and a ninety-one percent regional impairment rating with respect to his back. Dr. Leonard Forrest of the Southeastern Spine Institute also evaluated Clemmons and assigned him a whole-person impairment rating of forty percent, which translates to a ninety-nine percent regional impairment to his back. In addition to the AMA Guides impairment ratings, Clemmons presented medical testimony from general practitioner Dr. Gal Margalit, who opined to a reasonable degree of medical certainty that Clemmons had lost more than fifty percent of the functional capacity of his back.

         At the hearing, based on the consensus among all the medical experts who examined him, Clemmons argued he was entitled to permanent total disability based on his loss of more than fifty percent of the use of his back. Lowe's, on the other hand, argued Dr. Drye's twenty-five percent whole-person rating and Clemmons' return to work indicated Clemmons had not lost more than fifty percent of the use of his back, and thus Clemmons was only entitled to permanent partial disability.

         The Single Commissioner determined Clemmons was not permanently and totally disabled, finding Clemmons sustained only a forty-eight percent injury to his back and was thereby limited to an award of permanent partial disability. The full Commission adopted and affirmed the Commissioner's order in its entirety. The court of appeals also affirmed, holding the Commission's findings of fact were ...


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