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“So you have a brain—but is it severe and permanent enough?”

Robert Gruber

You probably remember the old days when a claimant would hit their head on something; go to a neuropsychologist who would say that they had “cognitive difficulties” as a result of the head injury. Of course, this same claimant would be permanently and totally disabled because of the back injury that they suffered at the same time they hit their head. The Commission would combine the two and the claimant would get a weekly check every week for the rest of their lives pursuant to S.C. Code Ann. §42-9-10(C). This pattern greatly increased the defense cost overall exposure for any case in which a claimant had some sort of insult to the head.

This trend changed in March of 2013 when the South Carolina Supreme Court issued the Sparks v. Palmetto Hardwood and Crisp v. SouthCo, Inc. cases. Both cases involved claimants who had injuries by accident to the brain, or “brain injuries” which the claimants were claiming lifetime indemnity benefits under the statute. Taken together, these cases hold that “brain injury” does not necessarily equal “brain damage,” and that a claimant seeking lifetime indemnity benefits under the statute must prove that he has brain damage that is a severe and permanent impairment of normal brain function which, at least in part, renders the claimant unable to return to suitable gainful employment.

These requirements basically eliminate lifetime benefit awards based upon a totally disabling physical injury in the same claim with minor cognitive difficulties following a head injury. But what should be done with a claimant who suffers a serious and perhaps severe brain injury? What facts make a serious and severe brain injury into a serious and severe damage to the brain invoking lifetime benefits?

The South Carolina Supreme Court recently heard the appeal of a case called Fragosa v. Cade Construction, LLC in which the Justices considered that very question. Mr. Fragosa was hit in the head with a crane on November 1, 2007, and spent the next month in a coma at MUSC. The record clearly establishes that Mr. Fragosa had a serious and perhaps severe injury to the brain including a whole person rating of 46% “for a traumatic brain injury.” The Commission found that Mr. Fragaso was permanently and totally disabled due to all of his injuries (including his brain injury); however, the Commission found that Mr. Fragosa’s brain injury did not meet the standards for severe and permanent brain damage set forth in Crisp and Sparks. The claimant appealed his case to the SC Supreme Court, and the Court heard oral arguments last week.

Two things are clear in Fragosa, which were not so clear in either Crisp or Sparks. First, Mr. Fragosa had a physical brain injury which contributed to his permanent and total disability. The record on appeal clearly supports a physical brain injury, and the parties basically agreed on that during oral argument. Not distracted by conflicting evidence as to the existence of brain injury; the Supreme Court in Fragosa was focused on whether or not Mr. Fragosa’s brain injury was severe enough to be brain damage pursuant to S.C. Code Ann. §42-9-10(C). Second, the Supreme Court seems tempted to usurp the Workers’ Compensation Commission’s fact-finding authority. A couple of the justices suggested that a 46% impairment rating to the whole person due to “traumatic brain injury” is severe brain damage per se. While unique in the brain injury/damage context, this temptation is not unique in general as the Supreme Court was more than willing to reweigh the evidence and overturn the Commission’s factual findings in Clemmons vs. Lowes.

The outcome of this case will impact how we handle brain injury/damage claims going forward, and YCR law will follow this case and will provide a follow-up blog as soon as the Supreme Court issues its ruling.


Author: Robert Gruber