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Don’t Freak Out—Yet!

Robert Gruber

Claimants are limited to five hundred (500) weeks of compensation for injuries except that “any person determined to be totally and permanently disabled who, as a result of a compensable injury, is a paraplegic, a quadriplegic, or who has suffered physical brain damage is not subject to the five hundred (500) week limitation and shall receive the benefits for life.” S.C. Code Ann. §42-9-10(C).  Our Supreme Court honed this standard a bit in 2013 with two brain damage opinions which, together, held:

  1. The statute requires a claimant must prove physical brain damage (not just injury) to claim lifetime benefits;
  2. The “mere presence” of physical brain injury or damage does not turn a case into a lifetime benefits case;
  3. Physical brain damage as described in S.C. Code Ann. §42-9-10(C) is damage that is “permanent and severe.” See Crisp vs. SouthCo., Inc., 401 S.C. 627, 738 S.E.2d 835 (2013, Sparks vs. Palmetto Hardwood, Inc.,

The cases included some dicta stating that, because brain damage was included in the statute next to paraplegia and quadriplegia, the legislature must have intended brain damage to be so severe as to prevent a claimant from working before it was enough to invoke lifetime benefits, but the Court never provided any specifics as to what factors made a brain “injury” a brain “damage” or what made brain “damage” severe, serious or permanent enough to invoke lifetime benefits.   But, this may have changed after the recent unpublished Supreme Court opinion in the case of Fragosa vs. Kade Construction.

Mr. Fragosa was hurt when he was hit in the head with part of a construction crane and fell off the roof of a parking garage.  He injured multiple body parts including his head.  Among his multiple impairment ratings was a 46% whole person impairment given by the treating neurologist for “traumatic brain injury.”  The Commission (three times) found that the claimant was permanently and totally disabled, had a physical brain injury, but did not have physical brain damage as the statute required.  The reasoning behind these prior Orders is that Mr. Fragosa’s brain injury was not severe enough or permanent enough to qualify for lifetime benefits.  In reaching this finding, the Commission seemed to focus on Mr. Fragosa’s post MMI ability to function mentally without assistance.  For example, the Commission found that Mr. Fragosa was able to give consent for medical procedures that a guardian ad litem had not been appointed or requested for Mr. Fragosa.  There were other similar commission findings, all of which were supported by the record and all of which are relevant to the severity of a traumatic brain injury.  Furthermore, the Commission was clearly within its statutory authority to weigh the evidence and make the findings that it made.  The Court of Appeals ultimately agreed.   But the Supreme Court focused on one factual finding in its opinion when it found that a 46% impairment rating to the brain “for a traumatic brain injury [was] sufficiently severe to implicate lifetime benefits physical brain damage pursuant to section 42-9-10 (C).” (See Fragosa vs. Kade Construction).

The procedural history of the Fragosa case is unique, and we suspect that is one reason the Supreme Court chose to issue an unpublished opinion which has no precedential value.   A published opinion in this case would upset the brain damage apply cart in a big way for years to come based upon a tortured case history we are not likely to see again.  But there are a few facts from the Fragosa case that we may see again, and they should concern us in light of the recent unpublished opinion.

Mr. Fragosa had a skull fracture and a brain injury which caused mental, psychological neurological sequela for several weeks after the injury—all while he was in the hospital.  Both of these factors suggest that the brain injury in this case was severe and that the claimant’s brain was, perhaps, damaged.   Third, the neurologist who treated the claimant gave him a 46% rating to the whole person for “traumatic brain injury.”  The foundation of this rating was disputed, but the Commission still made a factual finding that the claimant had a 46% whole person rating for a traumatic brain injury, which gives the rating a patina of legitimacy at the least.   After reviewing the record and watching the oral arguments, it is apparent that the 46% TBI rating, together with everything else was a bridge too far for the Supreme Court.  A skull fracture, brain injury, lingering deficits without an impairment rating may have been fine.  A large rating unsupported by injury or medical history would probably have been fine too; but Fragaso presented a perfect storm, which made the Supreme Court draw a bright line—at least for this case.

But don’t freak out yet.  This is an unpublished opinion, so claimant’s lawyers will not be able to present this opinion as precedent for upcoming cases.  But you will start seeing more brain ratings in your brain injury cases, and we need to be careful in selecting our physicians and investigating our cases so that we do not end up with any more perfect storms.