Workers' Compensation
Case from Feb. 2013 to April 2013

Physical brain damage
To qualify as “physical brain damage” pursuant to Section 42-9-10 of the S.C. Code, the damage must be both severe and permanent as a result of a compensable injury.
Sparks v. Palmetto Hardwood, No. 27229 (S.C. Sup. Ct., March 6, 2013) (Shearouse Adv. Sh. No. 11).

Case from Dec. 2012 to Feb. 2013

Dual persona doctrine
The dual persona doctrine is an exception to the Workers’ Compensation Act’s exclusivity provision. Under the doctrine, “[a]n employer may become a third person, vulnerable to tort suit by an employee if and only if it possesses a second persona so completely independent from and unrelated to its status as employer that by established standards the law recognizes that persona as a separate legal person,” (Citing 6 Larson’s Workers’ Compensation Law Section 113.01[1] (Matthew Bender, Rev. Ed. 2012)). Under S.C. law, whether the dual persona doctrine applies in a particular case turns on whether the duty claimed to have been breached is distinct from those duties owed by virtue of the employer's persona as such.
Mendenall v. Anderson Hardwood Floors, LLC, No. 27219 (S.C. Sup. Ct., Feb. 13, 2013) (Shearouse Adv. Sh. No. 7).

Cases from July 2012 to Oct. 2012

The Administrative Procedures Act governs appeals from the circuit court in Workers’ Compensation Commission cases. S.C. Code Section 1-23-390 limits those appeals to cases from final judgments.
Bone v. U.S. Food Serv., No. 27153 (S.C. Sup. Ct., Aug. 1, 2012) (Shearouse Adv. Sh. No. 26)


The shooting and killing of a suspect by an on-duty deputy sheriff is not an "unusual or extraordinary" employment condition such that mental injuries arising from that incident are compensable under the Workers' Compensation Act.
Bentley v. Spartanburg County, No. 27140 (S.C. Sup. Ct., July 11, 2012) (Shearouse Adv. Sh. No. 23)

To determine whether an employee is disabled under S.C. Code Section 42-1-120, the claimant must satisfy the two pronged test from Shealy v. Algernon Blair, Inc., 250 S.C. 106 (1967), by showing that he/she failed to obtain employment because of an injury-produced handicap and that he/she made reasonable efforts to obtain employment.
Johnson v. Rent-A-Center, Inc., No. 27145 (S.C. Sup. Ct., July 18, 2012) (Shearouse Adv. Sh. No. 24) 

A computer generated, strength category portion of a functional capacity evaluation can be admitted into evidence, as the S.C. Rules of Evidence do not apply to proceedings before the Workers’ Compensation Commission.
Watson v. Xtra Mile Driver Training, No. 5013 (S.C. Ct. App., Aug. 1, 2012) (Shearouse Adv. Sh. No. 26)

Future earnings
Pursuant to S.C. Code Ann. Section 42-9-20, rank speculation over future earnings cannot be the sole factor when determining loss of wage benefits.
Hutson v. S.C. Ports Authority, No. 27171 (S.C. Sup. Ct., Sept. 19, 2012) (Shearouse Adv. Sh. No. 33)

Statutory employee
When determining whether someone qualifies as a statutory employee, the Workers’ Compensation Commission should look to whether his/her activities are part of the employer’s trade, business or occupation.
Collins v. S.C. Workers’ Compensation Uninsured Employer’s Fund, No. 5022 (S.C. Ct. App., Aug. 15, 2012) (Shearouse Adv. Sh. No. 28)

Case from May 2012 and June 2012

Partial reimbursement for medical expenses
When a claimant has a preexisting medical condition, and the court finds substantial evidence to support a finding that a subsequent work-related injury combined with or aggravated this preexisting condition to cause a “substantially greater” disability and medical costs than the subsequent injury alone would have caused, partial reimbursement for medical expenses paid to the claimant are allowed.
Carolinas Recycling Grp. v. S.C. Second Injury Fund, No. 4987 (S.C. Ct. App. June 13, 2012) (Shearouse Adv. Sh. No. 20)

Cases from Jan. 2012 to March 2012

Affirmative defenses
If an employer knows of a defense the day of the accident, yet continues to pay disability compensation and does not assert his known defense until 450 days after the accident, the doctrines of waiver and laches bar the defense.
Jervey v. Martint Env., No. 4930 (S.C. Ct. App., Jan. 25, 2012) (Shearouse Adv. Sh. No. 3) 


An employee is not entitled to temporary disability benefits when his employer has provided him with acceptable substitute work when he returned and employed him for the required amount of time. An employee is not entitled to additional medical treatment where such treatment would not lessen his disability.
Cranford v. Hutchinson Construction, No. 4939 (S.C. Ct. App., Feb. 8, 2012) (Shearouse Adv. Sh. No. 5)

If a party cannot prove that he has a greater disability as a result of the combined effects of multiple injuries, there is no recovery for total disability based on Section 42-9-400.
Dinkins v. Lowe’s Home Centers, Inc., No. 4926 (S.C. Ct. App., Jan. 4, 2012) (Shearouse Adv. Sh. No. 1)

Statute of limitations
S.C. Code Section 42-9-260 is not a time bar for an employer raising a defense of compensability; rather, the commission can still authorize termination of benefits for any cause after the 150-day period in Section 42-9-260 has expired.
Jervey v. Martint Env., No. 4930 (S.C. Ct. App., Jan. 25, 2012) (Shearouse Adv. Sh. No. 3) 

Cases from Oct. 2011 to Jan. 2012

Alternative calculation 
When an employee has been working for less than four quarters since his return from the injury, the primary method of calculation is not appropriate. The first alternative method of wage calculation, used by Zurich Insurance Company and adopted by the Appellate Panel's order, is proper if two predicate conditions exist: (1) it is "practicable" to use the alternative method and (2) the calculation yields a result "fair and just" to both parties. 
Pugh v. Piedmont Mech., No. 4896 (S.C. Ct. App., Oct. 19, 2011) (Shearouse Adv. Sh. No. 37).

A claimant is not entitled to workers' compensation benefits when she is aware that standing for long periods of time could worsen her pre-existing foot condition.
Landry v. Carolinas Healthcare Sys., No. 4905 (S.C. Ct. App., Nov. 9, 2011) (Shearouse Adv. Sh. No. 40).

Expert testimony 
The plain reading of the statute requires that "opinion or testimony" must be "stated to a reasonable degree of medical certainty" while "documents, records or other material" are not similarly modified. The Court recognized that medical "records" will often also contain physicians' opinions, but in this case, the doctor who examined the employee was not the employee's normal treating physician, and the employer specially sought out this doctor to evaluate the employee and issue a medical "opinion" to decide the compensability of the employee's claim. Under these facts, the doctor's letter did not constitute "documents, records or other material," but is an "opinion or testimony" that must be "stated to a reasonable degree of medical certainty." 
Michau v. Georgetown Cnty., No. 27064 (S.C. Sup. Ct., Nov. 21, 2011) (Shearouse Adv. Sh. No. 41).

Repetitive trauma
A work-related repetitive trauma injury does not become compensable and the 90-day reporting clock does not start until the injured employee discovers or should discover he qualifies to receive benefits for medical care, treatment or disability due to his condition. 
King v. Int’l Knife & Saw, No. 4895 (S.C. Ct. App., Oct. 19, 2011) (Shearouse Adv. Sh. No. 37).

Statute of limitations 

The right to workers' compensation for an injury by accident is barred unless a claim is filed with the Commission within two years after an accident. Under the discovery rule, the statute of limitations begins to run from the date the claimant knew or should have known that, by the exercise of reasonable diligence, a cause of action existed. Whether a petitioner knew or should have known that her condition was related to her employment is a question of fact for the Commission.
Holmes v. Nat. Serv., No. 27059 (S.C. Sup. Ct., Oct. 24, 2011) (Shearouse Adv. Sh. No. 37).

Cases from July 2011 to Oct. 2011


Pursuant to S.C. Code Ann. § 42-17-60 (1990), an appeal from the Commission may be taken to circuit court "under the same terms and conditions as govern appeals in ordinary civil actions." This statutory language has been interpreted to allow an immediate appeal from an interlocutory order of the Commission only where the order "affects the merits." The Commission lacks the authority to extend the 14 days permitted for the filing of an appeal from the decision of a single commissioner.
Allison v. W.L. Gore & Assocs., No. 27031 (S.C. Sup. Ct., Aug. 22, 2011) (Shearouse Adv. Sh. No. 28).

In this case, the worker’s specific asbestosis is a pulmonary disease, it is not compensable under Section 42-9-30 and compensation hinges upon a showing of lost wages under Sections 42-9-10 and 42-9-20.
Skinner v. Westinghouse Elec. Corp., No. 27037 (S.C. Sup. Ct., Sept. 6, 2011) (Shearouse Adv. Sh. No. 30).

Expert testimony
The Appellate Panel, as the ultimate fact finder, was within its discretion to rely on McLeod, and such reliance on McLeod does not disregard Tiller. McLeod provides the Appellate Panel with the ability to ascertain the proficiency of an expert and to decide whether a "higher degree of expertise" is needed regarding an award. Tiller allows an expert’s opinion to be taken into consideration by the Appellate Panel as it weighs and considers all the evidence, both lay and expert, when determining whether causation has been established.
Potter v. Spartanburg Sch. Dist. 7, No. 4890 (S.C. Ct. App., Sept. 14, 2011) (Shearouse Adv. Sh. No. 32).