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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)
Benefits
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)
Eligibility
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).
Eligibility
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
Appeals
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).
Asbestosis
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).
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