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Happy New Year?

J. Steven Rodenberg

The last Appellate Court opinion issued in 2019 does not make for a happy 2020 for employers and carriers. In the case of David B. Lemon v. Mt. Pleasant Waterworks and State Accident Fund, the Court of Appeals addressed the carrier’s right to claim a credit for disability benefits paid to the claimant as a result of prior claims against the same employer.

Claimant was involved in an admitted work accident on May 8, 2012 in which he suffered an injury to his low back affecting both legs. Prior to that 2012 accident, claimant suffered four separate work-related accidents resulting in workers’ compensation claims against Mt. Pleasant Waterworks and the State Accident Fund. As a result of the four prior claims, claimant received 199 weeks of compensation benefits, both as temporary and permanent disability benefits. The carrier sought credit for the 199 weeks of benefits claimant received in his four prior claims against the employer to be applied as an offset against his award of permanent disability to be received as a result of the May 8, 2012 accident.

The Single Commissioner found the claimant was permanently and totally disabled under S.C. Code § 42-9-10(A) as a result of the injuries suffered in the May 8, 2012 accident. The Single Commissioner also found that the carrier was entitled to a credit for all indemnity benefits paid on the claimant’s four prior claims against Mt. Pleasant Waterworks. The Single Commissioner’s decision was affirmed by the Appellate Panel.

The claimant challenged the credit of 199 weeks of benefits paid on his four prior claims. Claimant asserted the Single Commissioner and Appellate Panel erred in applying § 42-9-170 towards his credit because § 42-9-170 addresses benefits awarded under § 42-9-10(B), not § 42-9-10(A). The Court of Appeals agreed with the claimant’s position.

S.C. Code § 42-9-170(B) states: if an employee receives a permanent injury as specified in § 42-9-30 or § 42-9-10(B) after having sustained another permanent injury in the same employment, he is entitled to compensation for both injuries, but the total compensation must be paid by extending the period and not by increasing the amount of weekly compensation, and in no case exceeding 500 weeks.

The Court of Appeals stated that by its own terms, § 42-9-170 applies only to § 42-9-10(B) awards. The plain language in § 42-9-170 renders it inapplicable to § 42-9-10(A). In this case, the Single Commissioner specified “the award in the present case is awarded under § 42-9-10(A)”; thus the Single Commissioner and Appellate Panel erred in applying § 42-9-170 to credit the carrier with 199 weeks of compensation paid for claimant’s prior claims. Therefore, the Court of Appeals reversed the decision of the Appellate Panel as to the 199-week credit.

In a footnote, the Court of Appeals also discussed its concerns as to whether the injuries for which the 199 week credit was awarded were in any way related to the current claim and whether carriers are entitled to a credit for temporary total disability benefits paid which are not addressed by § 42-9-170(B).

This decision certainly makes it more difficult for a carrier to claim and obtain a credit for all indemnity benefits paid on prior claims with the same employer. In this type of factual scenario, the employer and carrier must strive to obtain an order based on the scheduled member statute (§ 42-9-30) or § 42-9-10(B) rather than the general disability statute (§ 42-9-10(A)) in order to secure its credit for prior indemnity benefits paid. This opinion also makes it more difficult to settle permanent total disability claims based on a subsequent accident and injury with the same employer since claimant’s attorneys will not be as quick to consent to a full credit for prior benefits paid.