Henton T. Clemmons, Jr., Employee, Petitioner,
Lowe's Home Centers, Inc.-Harbison, Employer, and Sedgwick Claims Management Services, Inc., Carrier, Respondents. Appellate Case No. 2015-001350
September 21, 2016
OF CERTIORARI TO THE COURT OF APPEALS
from the Workers' Compensation Commission
Preston F. McDaniel, of McDaniel Law Firm, of Columbia, for
F. Hiser, of Mount Pleasant, and Kelly F. Morrow, of
Columbia, of McAngus Goudelock & Courie, for Respondents.
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.
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.
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.
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. A few months
later, Lowe's agreed to accommodate Clemmons'
restrictions and permitted him to return as a cashier.
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.
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.
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.
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 ...