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Claimant v. Mt. Pleasant Waterworks

Court of Appeals of South Carolina

December 31, 2019

David B. Lemon, Claimant, Appellant,
v.
Mt. Pleasant Waterworks, Employer, and State Accident Fund, Carrier, Respondents. Appellate Case No. 2016-002321

          Heard April 1, 2019

          Appeal From The Workers' Compensation Commission

          Carl H. Jacobson, of Uricchio Howe Krell Jacobson Toporek Theos & Keith, PA, of Charleston, for Appellant.

          John Gabriel Coggiola, of Willson Jones Carter & Baxley, P.A., of Columbia, for Respondents.

          MCDONALD, J.

         David Lemon (Claimant) appeals the order of the Appellate Panel of the South Carolina Workers' Compensation Commission (the Appellate Panel), arguing it erred in offsetting his award of permanent and total disability benefits against prior benefits received for unrelated claims. We affirm in part and reverse in part.

         Facts and Procedural History[1]

         Claimant was involved in an admitted work accident on May 8, 2012, while pulling a device designed to provide leverage on a sewer line. He suffered an injury to his low back, affecting both legs. At the time of the accident, Claimant's average weekly wage was $636.04, yielding a compensation rate of $424.05 under the Workers' Compensation Act (the Act). Prior to the 2012 accident, Claimant suffered four separate workplace injuries resulting in workers' compensation claims against Mount Pleasant Waterworks (Employer) and the State Accident Fund (Carrier), including a March 4, 2009 injury to the back, an April 26, 2010 injury to the right shoulder, an April 13, 2011 injury to the right shoulder, and an October 3, 2011 injury to the back. As a result of the four prior claims, Claimant received 199 weeks of compensation benefits, both as temporary and permanent disability benefits.

         Employer and Carrier (collectively, Respondents) provided Claimant with medical treatment through multiple medical providers, including Dr. James Aymond and Dr. Thomas Due. On June 20, 2013, Dr. Aymond found Claimant to be at maximum medical improvement (MMI) and assigned a 24% impairment to Claimant's back. On February 12, 2014, Dr. Due found Claimant to be at MMI and assigned him impairment ratings of 24% to the lumbar spine, 7% to the right lower leg, and 7% to the left lower leg.

         Claimant filed a Form 50 request for a hearing, alleging injuries to the back and legs and seeking permanent and total disability benefits and lifetime medical treatment. Respondents timely filed both a Form 51 response and a Form 21 request for a hearing, seeking to stop payment of temporary compensation, a determination of permanent disability, and credit for overpayment of temporary compensation paid after the date of MMI. In addition, Respondents sought credit for the 199 weeks of benefits Claimant received in his four prior claims against Employer to be applied as an offset against his current award of permanent disability.

         Following a hearing, the Single Commissioner issued an order setting forth a number of findings, including:

1. Based upon the greater weight of the evidence, the Claimant is permanently and totally disabled pursuant to S.C. Code Ann. §42-9-10. The Claimant has sustained permanent injuries to more than one body part, namely, his back and both legs. As such, his claim for permanency is not restricted to the schedule of benefits as provided by S.C. Code Ann. §42-9-30.
2. [Claimant] is entitled to lifetime causally related medical care.
3. [Claimant's] May 8, 2012 work accident was his fifth work accident as an employee of Respondent Mount Pleasant Waterworks, and he has previously received temporary or permanent disability compensation in the amount of 199 weeks;
4. By the date of the hearing, [C]laimant received 122 weeks of temporary total disability benefits related to his May ...

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