David B. Lemon, Claimant, Appellant,
Mt. Pleasant Waterworks, Employer, and State Accident Fund, Carrier, Respondents. Appellate Case No. 2016-002321
April 1, 2019
From The Workers' Compensation Commission
H. Jacobson, of Uricchio Howe Krell Jacobson Toporek Theos
& Keith, PA, of Charleston, for Appellant.
Gabriel Coggiola, of Willson Jones Carter & Baxley, P.A.,
of Columbia, for Respondents.
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.
and Procedural History
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
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.
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.
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
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 ...