                      THE STATE OF SOUTH CAROLINA
                          In The Court of Appeals

             David B. Lemon, Claimant, Appellant,

             v.

             Mt. Pleasant Waterworks, Employer, and State Accident
             Fund, Carrier, Respondents.

             Appellate Case No. 2016-002321



              Appeal From The Workers' Compensation Commission


                                Opinion No. 5703
                  Heard April 1, 2019 – Filed December 31, 2019


                  AFFIRMED IN PART, REVERSED IN PART


             Carl H. Jacobson, of Uricchio Howe Krell Jacobson
             Toporek Theos & Keith, PA, of Charleston, for
             Appellant.

             John Gabriel Coggiola, of Willson Jones Carter &
             Baxley, P.A., of Columbia, for Respondents.


MCDONALD, J.: David Lemon (Claimant) appeals the order of the Appellate
Panel of the South Carolina Workers' Compensation Commission (the Appellate
Panel), arguing it erred in offsetting his award of permanent and total disability
benefits against prior benefits received for unrelated claims. We affirm in part and
reverse in part.
Facts and Procedural History1

Claimant was involved in an admitted work accident on May 8, 2012, while
pulling a device designed to provide leverage on a sewer line. He suffered an
injury to his low back, affecting both legs. At the time of the accident, Claimant's
average weekly wage was $636.04, yielding a compensation rate of $424.05 under
the Workers' Compensation Act (the Act). Prior to the 2012 accident, Claimant
suffered four separate workplace injuries resulting in workers' compensation
claims against Mount Pleasant Waterworks (Employer) and the State Accident
Fund (Carrier), including a March 4, 2009 injury to the back, an April 26, 2010
injury to the right shoulder, an April 13, 2011 injury to the right shoulder, and an
October 3, 2011 injury to the back. As a result of the four prior claims, Claimant
received 199 weeks of compensation benefits, both as temporary and permanent
disability benefits.

Employer and Carrier (collectively, Respondents) provided Claimant with medical
treatment through multiple medical providers, including Dr. James Aymond and
Dr. Thomas Due. On June 20, 2013, Dr. Aymond found Claimant to be at
maximum medical improvement (MMI) and assigned a 24% impairment to
Claimant's back. On February 12, 2014, Dr. Due found Claimant to be at MMI and
assigned him impairment ratings of 24% to the lumbar spine, 7% to the right lower
leg, and 7% to the left lower leg.

Claimant filed a Form 50 request for a hearing, alleging injuries to the back and
legs and seeking permanent and total disability benefits and lifetime medical
treatment. Respondents timely filed both a Form 51 response and a Form 21
request for a hearing, seeking to stop payment of temporary compensation, a
determination of permanent disability, and credit for overpayment of temporary
compensation paid after the date of MMI. In addition, Respondents sought credit
for the 199 weeks of benefits Claimant received in his four prior claims against
Employer to be applied as an offset against his current award of permanent
disability.

Following a hearing, the Single Commissioner issued an order setting forth a
number of findings, including:

               1. Based upon the greater weight of the evidence, the
               Claimant is permanently and totally disabled pursuant to

1
    There are no factual issues in dispute.
               S.C. Code Ann. §42-9-10. The Claimant has sustained
               permanent injuries to more than one body part, namely,
               his back and both legs. As such, his claim for
               permanency is not restricted to the schedule of benefits as
               provided by S.C. Code Ann. §42-9-30.

               2. [Claimant] is entitled to lifetime causally related
               medical care.

               3. [Claimant's] May 8, 2012 work accident was his fifth
               work accident as an employee of Respondent Mount
               Pleasant Waterworks, and he has previously received
               temporary or permanent disability compensation in the
               amount of 199 weeks;

               4. By the date of the hearing, [C]laimant received 122
               weeks of temporary total disability benefits related to his
               May 8, 2012 work accident.

The Single Commissioner found Claimant was entitled to an award of permanent
and total disability;2 however, he further found Respondents were entitled to 321
weeks of credit against a maximum 500-week award of permanent and total
disability benefits, including credit under § 42-9-170(B) for 199 weeks of benefits
from Claimant's prior unrelated workers' compensation claims and credit for 122
weeks of temporary disability benefits received on the current claim.

Claimant filed a Form 30 request for Appellate Panel review, arguing
§ 42-9-170(B) did not apply because the Single Commissioner awarded him
permanent and total disability benefits under § 42-9-10(A), not § 42-9-10(B).
Claimant further argued that even if § 42-9-170(B) applied, the Single
Commissioner erred in failing to analyze each of the settlements of his prior claims
to determine if there had been separate allocations of benefits paid for temporary
total disability and permanent partial disability.

The Appellate Panel heard oral argument and remanded the case to the Single
Commissioner for (1) a determination of which subsection of § 42-9-10 the Single
Commissioner applied in making the award in the present case; (2) a determination
of the statutes under which prior awards were issued; and (3) any facts, analyses,

2
    Respondents have not challenged this finding.
or conclusions of law the Single Commissioner deemed necessary in the analysis
of the § 42-9-170 determination.

On remand, the Single Commissioner reaffirmed all previous findings of fact from
his prior decision and order "not inconsistent with the instant opinion" and found:
Claimant was permanently and totally disabled under § 42-9-10(A); Claimant's
previous awards for injuries sustained with the same employer were awarded under
§ 42-9-30; the phrase "receives a permanent injury" in § 42-9-170(B) referred to
the present claim; and "another permanent injury in the same employment"
referred to Claimant's prior injuries. The Single Commissioner concluded
Claimant was subject to the 500-week cap on benefits and stated "upon expanding
my research to other cases and statutes, I am even more convinced that the law
allows that the [Respondents] be given a credit for all indemnity benefits paid
during the Claimant's employment with Mt. Pleasant Waterworks."

Claimant again requested Appellate Panel review, arguing the Single
Commissioner erred in submitting a revised order that far exceeded the questions
presented on remand. Claimant again argued the Single Commissioner erred in
crediting Respondents for the 199 weeks of benefits Claimant received in his prior
workers' compensation claims and in failing to analyze the prior claims. After
hearing arguments, the Appellate Panel affirmed the Single Commissioner's second
order.

Standard of Review

The Administrative Procedures Act provides the standard of judicial review for
decisions of the Appellate Panel. Lark v. Bi-Lo, Inc., 276 S.C. 130, 133–35, 276
S.E.2d 304, 306 (1981). "An appellate court can reverse or modify the
Commission's decision if it is affected by an error of law or is clearly erroneous in
view of the reliable, probative, and substantial evidence in the whole record."
Pierre v. Seaside Farms, Inc., 386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010); see
also S.C. Code Ann. § 1-23-380(5) (Supp. 2019).

Law and Analysis

Claimant concedes Respondents are entitled to credit for 122 weeks of temporary
total disability benefits paid on his current claim, however, he challenges the credit
of 199 weeks related to benefits paid on his four prior claims. Claimant asserts the
Single Commissioner and Appellate Panel erred in applying § 42-9-170 to award
this credit because § 42-9-170 addresses benefits awarded under § 42-9-10(B), not
§ 42-9-10(A). We agree.

Claimant's May 8, 2012 work accident was the fifth work accident for which he
received workers' compensation benefits while working for the same employer.
Claimant previously received a combined 25.4286 weeks of temporary disability
benefits and 75 weeks of permanent partial disability (PPD) benefits as a result of
two injuries by accident to his right shoulder in 2010 and 2011. Additionally,
Claimant received a combined 23.5714 weeks of temporary benefits and 75 weeks
of PPD benefits as a result of two injuries by accident to his back in 2009 and
2011. Claimant received a total of 199 weeks of compensation benefits as a result
of his four prior claims.

Claimant correctly asserts that the Act is created by statute, and as such, "when
reading a workers' compensation statute, we strictly construe its terms, leaving it to
the Legislature to amend and define its ambiguities." Wigfall v. Tideland Utils.,
Inc., 354 S.C. 100, 110, 580 S.E.2d 100, 105 (2003); see also Nicholson v. S.C.
Dep't of Soc. Servs., 411 S.C. 381, 385, 769 S.E.2d 1, 3 (2015) ("Workers'
compensation law is to be liberally construed in favor of coverage in order to serve
the beneficent purpose of [the Act]; only exceptions and restrictions on coverage
are to be strictly construed.").

Here, the Single Commissioner found Claimant is "permanently and totally
disabled" pursuant to Section 42-9-10(A) of the South Carolina Code (2015),
which provides:

             When the incapacity for work resulting from an injury is
             total, the employer shall pay, or cause to be paid, as
             provided in this chapter, to the injured employee during
             the total disability a weekly compensation equal to sixty-
             six and two-thirds percent of his average weekly wages,
             but not less than seventy-five dollars a week so long as
             this amount does not exceed his average weekly salary; if
             this amount does exceed his average weekly salary, the
             injured employee may not be paid, each week, less than
             his average weekly salary. The injured employee may
             not be paid more each week than the average weekly
             wage in this State for the preceding fiscal year. In no
             case may the period covered by the compensation exceed
             five hundred weeks except as provided in subsection
             (C).[3]

Claimant submits the 500-week cap applies only to an injury arising from a single
accident, not the sum of multiple accidents. Therefore, Claimant argues the injury
he sustained as a result of this accident can result in a maximum award of 500
weeks, offset by any benefits received for temporary total disability benefits paid
on the same claim. Claimant does not dispute the credit awarded to Employer for
the 122 weeks of temporary total disability benefits he received as a result of the
current accident and injuries.

However, Claimant challenges the application of the Act's language addressing
permanent injuries sustained by an employee after he or she has sustained prior
permanent injuries in the same employment. Section 42-9-170(B) states:

             If an employee receives a permanent injury as specified
             in section 42-9-30[4] or section 42-9-10(B)[5] 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. If an employee previously has incurred
             permanent partial disability through the loss of a hand,
             arm, shoulder, foot, leg, hip, or eye, and by subsequent

3
  Section 42-9-170(C) is inapplicable here. It provides, "Notwithstanding the five-
hundred-week limitation prescribed in this section or elsewhere in this title, 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-week limitation and shall receive
the benefits for life." S.C. Code Ann. § 42-9-170(C).
4
 Section 42-9-30 sets forth the schedule for which disabilities are deemed to
continue and the resulting compensation paid for injuries to various parts of the
body.
5
 "The loss of both hands, arms, shoulders, feet, legs, hips, or vision in both eyes,
or any two thereof, constitutes total and permanent disability to be compensated
according to the provisions of this section." S.C. Code Ann. § 42-9-10(B).
               accident incurs total permanent disability through the loss
               of another member, the employer's liability is for the
               subsequent injury only, except that the employee may
               receive further benefits as provided under the provisions
               of section 42-9-35.[6] This subsection is effective on July
               1, 2008.

S.C. Code Ann. § 42-9-170(B).

Respondents persuasively argue that § 42-9-170(B) reflects the goal of our
workers' compensation system to encourage employers to bring injured workers
back to work after they have suffered certain compensable injuries. However, by
its own terms, § 42-9-170 applies only to § 42-9-10(B) awards. See, e.g.,
Wyndham v. R.A. & E.M. Thornley & Co., 291 S.C. 496, 500, 354 S.E.2d 399, 402
(Ct. App. 1987), overruled on other grounds by Medlin v. Greenville Cty., 303 S.C.
484, 401 S.E.2d 667 (1991) (explaining "[w]hen the Legislature wished to impose
a five hundred week limit on successive injuries, it did so explicitly.").

Here, 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 Respondents with 199 weeks of compensation paid
for Claimant's prior benefits.

Medlin v. Greenville County does not dictate a different result. There, the claimant
suffered a work-related injury to his spine in 1983 and was found to have sustained
a greater than fifty percent loss of use of his back, therefore entitling him to the
maximum compensation of five hundred weeks for total and permanent disability
under §§ 42-9-10 and 42-9-30(19) of the South Carolina Code. 303 S.C. 484, 486,
401 S.E.2d 667, 667–68 (1991). Thereafter, the claimant returned to work for
Greenville County. Id. In 1985, the claimant sustained a second work-related
injury and again filed a claim for workers' compensation benefits, seeking total and
permanent disability benefits. Id. Although the County admitted the second
accident occurred, it denied the claimant was entitled to receive an award for
permanent disability due to the prior award of total disability benefits for injury to
the same body part injured in 1983. Id. Our supreme court explained:



6
    Section 42-9-35 addresses evidence of preexisting injury or condition.
            This case is substantially the same as Hopper [v.
            Firestone Stores, et al., 222 S.C. 143, 72 S.E.2d 71
            (1952)], in that employee, having already suffered a total
            and permanent loss of use of a body part, specifically in
            this case, his back, as a result of his first accident, is
            seeking total and permanent benefits for a successive
            injury to the same body part. Under Hopper, we find that
            employee is not entitled to any further benefits for loss of
            use to the same body part as the loss of use to his back
            has already been fully "written-off," and is non-existent
            in so far as the Act is concerned. Thus, there is no basis
            upon which employee can recover. Only if employee
            had suffered less than fifty percent loss of use to his back
            in the first accident, would he have been entitled to
            compensation for the degree of disability which would
            have resulted from the later accident. These principles
            would hold true in any case regardless of whether the
            successive injury occurred while working for the same or
            different employers. To the extent that Wyndham v. R.A.
            & E.M. Thornley and Co., 291 S.C. 496, 354 S.E.2d 399
            (Ct. App. 1987) distinguishes between successive injuries
            incurred while working for the same rather than for
            different employers, it is overruled.

303 S.C. 484, 488, 401 S.E.2d 667, 669 (1991).7

Here, the Appellate Panel affirmed the Single Commissioner's second order finding
Claimant permanently and totally disabled pursuant to § 42-9-10(A) and relied on
§ 42-9-170(B) to cut Claimant's award. However, the plain language of § 42-9-170




7
  Medlin preceded the enactment of the 2007 statutes upon which Claimant's award
is based. In any event, Medlin is inapplicable due to the plain language of § 42-9-
170(B), the Single Commissioner's finding that Claimant's award was made
pursuant to § 42-9-10(A), and the Appellate Panel's finding that pursuant to § 42-9-
10(A), Claimant is permanently and totally disabled.
renders it inapplicable to § 42-9-10(A). Thus, we reverse the decision of the
Appellate Panel as to the 199-week credit.8

Conclusion

For the foregoing reasons, we affirm as to 122 weeks credited to Employer and
reverse as to the 199 weeks.

AFFIRMED IN PART, REVERSED IN PART.

LOCKEMY, C.J. and SHORT, J., concur.




8
  The 199-week offset is also troubling because neither the Single Commissioner
nor the Appellate Panel undertook any analysis of the four prior claims to
determine whether the injuries for which they awarded the 199-week credit were in
any way related to the current claim as the back injury in Medlin was. For
example, several of the payments apparently credited were for temporary total
disability benefits, which § 42-9-170(B) does not address. Further, one of the prior
settlement agreements referenced a 25% impairment to the right shoulder but had
no designation as to the specific number of weeks. Claimant's injury here was to
the low back, with bilateral leg pain.
