Burr & Forman

06.4.2019   |   Articles / Publications

South Carolina Employment Law Letter: South Carolina Supreme Court: ‘Get this [2009] Case Decided’

Employers often question the length of time workplace matters take once they get into the administrative and legal arena. The South Carolina Supreme Court recently reviewed a workers’ compensation case that began in 2009. Read on to see its decision.

Facts
Paula Russell injured her back in 2009 while working at a Walmart store in Conway. Because the injury was work-related and occurred in the course and scope of her employment, it was treated as a workers’ comp claim. It went before a single commissioner, who found Russell suffered a seven percent permanent partial disability and awarded her 21 weeks of temporary total disability compensation. In 2011, under the workers’ comp statute, she requested review of her award, claiming there had been a “change of condition caused by the original injury.”

A single commissioner conducted a full evidentiary hearing regarding the 2011 claim on February 11, 2013. In a detailed order dated August 5, 2013, the commissioner found Russell had proven a change of condition. The commissioner ordered Walmart to pay temporary total disability benefits beyond the original 21 weeks “through the present date and continuing.” The commissioner based the award on Russell’s testimony and the testimony and medical records of two treating physicians. In her order, the commissioner pointed to the two physicians’ testimony that described a “physical, anatomical change” and an “increase in the size of the disc protrusion,” demonstrated by an “objective” comparison of MRI images taken before and after the award.

Walmart disagreed and appealed, and an appellate panel reversed the single commissioner. The panel dismissed Russell’s testimony as conclusory and self-serving. The panel also discounted the testimony and medical records of the two physicians, stating, “Both [physicians] ultimately testified there was no objective or significant radiographical difference to be noted in the MRI scans done before and after the original award.” In an order dated January 30, 2014, the panel found Russell failed to prove by a preponderance of the evidence she had sustained a change of condition. This time Russell appealed the workers’ comp panel’s decision to the court of appeals, which found the panel had erred in requiring a change of condition to be established by objective evidence. The court reversed the panel and remanded the case (sent it back) to the commission on May 3, 2016, but with no clear instructions on what it expected or found to be in error.

Read the full article by downloading the pdf, “South Carolina Employment Law Letter: South Carolina Supreme Court: ‘Get this [2009] Case Decided’” written by Richard Morgan.

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