Home / Workers' Compensation Blog / Change of Condition Revisited

Change of Condition Revisited

E. Courtney Gruber

Many of you might remember the case Leslie Whitten and our appellate attorneys handled, Wilson v Charleston County School District, wherein the SC Court of Appeals, in March of 2017, ruled that it was not necessary for a claimant to actually prove that she had suffered a change of condition within a year after the last payment of benefits as long as a Form 50 was timely filed alleging that a change of condition had occurred.  In Wilson, the Claimant originally received an award for a back injury.  A Form 50 for a change of condition (alleging for the first time a mental injury caused by the back injury) was filed within the one year statutory requirement.  The 50 did not request a hearing and did not provide any medical evidence that a change of condition had occurred within the year.

A hearing was requested a little over 2 years later, and the medical evidence submitted at the hearing was that the Claimant, who had a history of “situational” depression and anxiety that preceded the original accident date, began suffering from “endogenous” depression, first diagnosed 2 years after the Form 50 alleging a change of condition was filed.  There was also medical evidence that the Claimant did not actually suffer from the work related “endogenous” depression within one year from the date of last payment, when the Form 50 had been filed to simply toll the statute.  In other words, the Claimant was only able to prove that she suffered a change in her mental condition 3 years after the date of last payment.

The SC Workers Compensation Commission correctly found that, in order to be compensable, the Claimant had to prove the depression began to worsen within one year after the last payment of compensation.  The Court of Appeals reversed that decision, finding in pertinent part that the statute defining change of condition only requires that a claim be filed within one year, not that the actual medical condition had worsened within the year.  This effectively would allow any claimant to simply file a Form 50, not requesting a hearing, alleging a change of condition for the worse within one year of the last date of payment, and then wait patiently until a medical condition worsened sufficiently to support a claim for additional benefits based on a change of condition for the worse.

Change of condition is defined by SC Code 42-17-90 and had, up until Wilson, been very strictly construed to require a claimant to prove with medical evidence that a change of condition caused by the original injury had occurred within one year of the last payment of compensation.   Failure to prove, by competent medical evidence, that such a change had occurred within the one year rendered the claim not compensable.  The case could be closed based on the original order with no additional financial exposure to the carrier.  The decision in Wilson had the potential to open the floodgates to massive additional exposure and costs as it essentially created a situation where a claim could never really be closed, as long as the Form 50 not requesting a hearing, was filed within the one year, unless it was settled on a clincher.

Fortunately, the Court of Appeals has recently vacated that decision, in an Order filed April 19, 2018, granting a Motion jointly filed by the parties as part of a mediated settlement.  Much like a fictitious TV script wherein an entire season could be erased by simply explaining at the end that it was all a dream, the past year of strategizing around this very dangerous decision can be viewed as a bad dream.  The difference however, is that one is fiction, costing viewers emotional investment and time, and the other potentially costing self insured employers, and insurance companies a lot of money.