Petition for Writ of Certiorari — Randy Williams, Petitioner v. American International Group, Inc., et al.

Supreme Court briefSep 16, 2020

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USCA4 Appeal: 20-1338

Doc: 5

Filed: 05/27/2020

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-1338

RANDY WILLIAMS,

Plaintiff - Appellant,

AMERICAN INTERNATIONAL GROUP, INC.; AMERICAN HOME

ASSURANCE COMPANY; MCANGUS, GOUDELOCK & COURIE LLC;

COVENTRY HEALTHCARE,

Defendants - Appellees,

and

VAL STRONG; MATTHEW S. MOSER,

Defendants.

Appeal from the United States District Court for the District of South Carolina, at Florence.

Mary G. Lewis, District Judge. (4:19-cv-01616-MGL)

Submitted: May 21, 2020

Decided: May 27, 2020

Before AGEE and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior Circuit

Judge.

Affirmed by unpublished per curiam opinion.

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Randy Williams, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Randy Williams appeals the district court’s order dismissing his civil complaint for

lack of subject matter jurisdiction. The district court referred this case to a magistrate judge

pursuant to 28 U.S.C. § 636(b)(1)(B) (2018). The magistrate judge recommended that the

complaint be dismissed and advised Williams that failure to file timely, specific objections

to this recommendation could waive appellate review of a district court order based upon

the recommendation.

The timely filing of specific objections to a magistrate judge’s recommendation is

necessary to preserve appellate review of the substance of that recommendation when the

parties have been warned of the consequences of noncompliance. Martin v. Duffy, 858

F.3d 239, 245 (4th Cir. 2017); Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985); see

also Thomas v. Arn, 474 U.S. 140, 154-55 (1985). Although Williams received proper

notice and filed timely objections to the magistrate judge’s recommendation, he has waived

appellate review because the district court determined that his objections were not specific

to the particularized legal recommendations made by the magistrate judge. See Martin,

858 F.3d at 245 (holding that, “to preserve for appeal an issue in a magistrate judge’s report,

a party must object to the finding or recommendation on that issue with sufficient

specificity so as reasonably to alert the district court of the true ground for the objection”

(internal quotation marks omitted)). Accordingly, we affirm the judgment of the district

court.

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We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED

MJjptidl. IfcKdZ,' I

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FILED: July 28, 2020

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-2221

(4:17-cv-03396-MGL)

RANDY WILLIAMS

Plaintiff - Appellant

AMERICAN INTERNATIONAL GROUP, INC.; AMERICAN HOME

ASSURANCE COMPANY

Defendants - Appellees

ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Judge Agee, Judge Quattlebaum, and

Senior Judge Traxler.

For the Court

/s/ Patricia S. Connor. Clerk

4:19-cv-01616-MGL

Date Filed 03/10/20

Entry Number 64

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

FLORENCE DIVISION

RANDY WILLIAMS,

Plaintiff,

vs.

§ CIVIL ACTION NO. 4:19-1616-MGL-KDW

AMERICAN INTERNATIONAL GROUP,

INC.; AMERICAN HOME ASSURANCE

COMPANY; MCANGUS, GOUDELOCK &

COURIE LLC; and COVENTRY

HEALTHCARE,

Defendants.

ORDER ADOPTING THE REPORT AND RECOMMENDATION

AND DISMISSING PLAINTIFF’S AMENDED COMPLAINT WITHOUT PREJUDICE

AND WITHOUT ISSUANCE AND SERVICE OF PROCESS

PlaintiffRandy Williams (Williams) is a self-represented litigant. In his amended complaint,

he asserts several state law claims against Defendants American International Group, inc., American

Home Assurance Company, McAngus, Goudelock & Courie LLC, and Coventry Healthcare.

The matter is before the Court for review of the Report and Recommendation of the United

States Magistrate Judge suggesting Williams’s amended complaint be dismissed without prejudice

and without issuance and service of process. The Magistrate Judge prepared the Report in

accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South Carolina.

The Magistrate Judge makes only a recommendation to this Court. The recommendation has

no presumptive weight. The responsibility to make a final determination remains with the Court.

Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo

4:19-cv-01616-MGL

Date Filed 03/10/20

Entry Number 64

Page 2 of 2

determination of those portions of the Report to which specific obj ection is made, and the Court may

accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or

recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

The Magistrate Judge filed the Report on February 25, 2020, and Williams filed his

objections on March 6, 2020. The Court has carefully reviewed the objections, but holds them to

be without merit. It will therefore enter judgment accordingly.

Fed. R. Civ. P. 72(b)(2) requires the party “file specific written objections to the proposed

findings and recommendations.” Williams’s submission, however, generally contains nothing more

than quotations, conclusory allegations, and meritless arguments. Yet, he fails to raise any specific

objection to the Report. Thus, the Court will overrule Williams’s objections.

Therefore, after a thorough review of the Report and the record in this case pursuant to the

standard set forth above, the Court overrules Williams’s objections, adopts the Report, and

incorporates it herein. Therefore, it is the judgment of this Court Williams’s amended complaint

is DISMISSED WITHOUT PREJUDICE and without issuance and service of process.

IT IS SO ORDERED.

Signed this 10th day of March, 2020, in Columbia, South Carolina.

/s/ Mary Geiger Lewis____________

MARY GEIGER LEWIS

UNITED STATES DISTRICT JUDGE

*****

NOTICE OF RIGHT TO APPEAL

Williams is hereby notified of the right to appeal this Order within thirty days from the

date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

4:19-cv-01616-MGL

Date Filed 02/25/20

Entry Number 59

Page lot 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

Randy Williams,

Plaintiff,

American International Group, Inc.;

American Home Assurance Company;

McAngus Goudelock & Courie LLC Law

Firm; and Coventry Healthcare,

Defendants.

)

C/A No.: 4:19-1616-MGL-KDW

)

REPORT AND RECOMMENDATION

)

In June 2019 Randy Williams (“Plaintiff’), proceeding pro se, filed a Complaint in this

matter, alleging certain Defendants were deliberately interfering with the administration of

benefits awarded under the settlement of his July 2008 worker’s compensation claim. ECF No. 1.

Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e)

(D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings

and recommendations to the district judge. In a Report and Recommendation (“R&R”) dated June

11, 2019, the undersigned recommended that the district judge dismiss Plaintiffs original

Complaint without prejudice and without issuance and service of process. ECF No. 13. As was his

right, Plaintiff filed objections to the June 2019 R&R. See ECF No. 16. Plaintiff also filed

numerous motions, including a motion to amend the original Complaint. In a January 27, 2020

Order United States District Judge Mary G. Lewis granted Plaintiffs motion to amend the

complaint under Federal Rule Civil Procedure Rule 15(a)(1) as a matter of right and remanded the

matter to the undersigned for further review. ECF No. 45.

In continuing the court’s review of Plaintiff s pro se pleading, the undersigned ordered that

Plaintiff submit an amended complaint using a blank civil complaint form provided to him by the

4:19-cv-01616-MGL

Date Filed 02/25/20

Entry Number 59

Page 2 of 6

court. ECF No. 49. Plaintiff has complied with that order, and his Amended Complaint docketed

on February 10, 2020, ECF No. 51, is now under review by the undersigned. In his Amended

Complaint, Plaintiff brings claims against American International Group, Inc., American Home

Assurance Company, McAngus Goudelock & Courie LLC Law Firm, and Coventry Healthcare

alleging Defendants are deliberately interfering with the administration of the benefits Plaintiff

was awarded under the settlement of his July 2008 worker’s compensation claim. ECF No. 51.

Plaintiff asserts state law claims of bad faith, breach of contract, and intentional and negligent

spoliation of evidence. Id. Plaintiff seeks injunctive relief and compensatory damages. Id. at 10.

For the reasons that follow, the undersigned recommends that the district judge dismiss the

amended complaint without prejudice and without issuance and service of process.

Discussion

Standard of Review

Under established local procedure in this judicial district, a careful review has been made

of the pro se complaint. Pro se complaints are held to a less stringent standard than those drafted

by attorneys, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and a federal district court is charged

with liberally construing a complaint filed by a pro se litigant to allow the development of a

potentially meritorious case, Hughes v. Rowe, 449 U.S. 5, 9 (1980). In evaluating a pro se

complaint, the plaintiffs allegations are assumed to be true. Erickson, 551 U.S. at 94 (citing Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).

Nonetheless, the requirement of liberal construction does not mean that the court can ignore

a clear failure in the pleading to allege facts that set forth a claim cognizable in a federal district

court. See Weller v. Dep’t ofSoc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal,

556 U.S. 662, 684 (2009) (outlining pleading requirements under Fed. R. Civ. P. 8 for “all civil

actions”). The mandated liberal construction afforded to pro se pleadings means that if the court

4:19-cv-01616-MGL

Date Filed 02/25/20

Entry Number 59

Page 3 of 6

can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it

should do so; however, a district court may not rewrite a complaint to include claims that were

never presented, Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999), construct the plaintiffs legal

arguments for him, Small v. Endicott, 998 F.2d 411 (7th Cir. 1993), or “conjure up questions never

squarely presented” to the court, Beaudett v. City ofHampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

Analysis

Federal courts are courts of limited jurisdiction, “constrained to exercise only the authority

conferred by Article III of the Constitution and affirmatively granted by federal statute.” In re

Bulldog Trucking, Inc., 147 F.3d 347,352 (4th Cir. 1998). Accordingly, a federal court is required,

sua sponte, to determine if a valid basis for its jurisdiction exists “and to dismiss the action if no

such ground appears.” Id. at 352; see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any

time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Although the

absence of subject matter jurisdiction may be raised at any time during the case, determining

jurisdiction at the outset of the litigation is the most efficient procedure. Lovern v. Edwards, 190

F.3d 648, 654 (4th Cir. 1999).

There is no presumption that a federal court has jurisdiction over a case, Pinkley, Inc. v.

City ofFrederick, Md., 191 F.3d 394, 399 (4th Cir. 1999), and a plaintiff must allege facts essential

to show jurisdiction in his pleadings. McNuttv. Gen. Motors Acceptance Corp., 298 U.S. 178, 189

(1936); see also Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 350 (4th Cir. 1985) (“[Pjlaintiffs

must affirmatively plead the jurisdiction of the federal court.”). To this end, Federal Rule of Civil

Procedure 8(a)(1) requires that the complaint provide “a short and plain statement of the grounds

for the court’s jurisdiction[.]” When a complaint fails to include “an affirmative pleading of a

jurisdictional basis[,] a federal court may find that it has jurisdiction if the facts supporting

jurisdiction have been clearly pleaded.” Pinkley, 191 F.3d at 399 (citations omitted). However, if

4:19-cv-01616-MGL

Date Filed 02/25/20

Entry Number 59

Page 4 of 6

the court, viewing the allegations in the light most favorable to a plaintiff, finds insufficient

allegations in the pleadings, the court will lack subject matter jurisdiction. Id.

Plaintiff alleges that the court has subject matter jurisdiction over his claims pursuant to

federal question jurisdiction. ECF No. 51 at 3. Section 1331 of Title 28, United States Code,

provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under

the Constitution, laws, or treaties of the United States.” “[A] claim of federal question jurisdiction

is to be resolved on the basis of the allegations of the complaint itself.” Burgess v. Charlottesville

Sav. and Loan Ass’n, All F.2d 40, 43 (4th Cir. 1973). Therefore, a complaint must “contain

allegations ‘affirmatively and distinctly’ establishing federal grounds ‘not in mere form, but in

substance’ and ‘not in mere assertion, but in essence and effect.’” Id. (citing Cuyahoga Co. v.

Northern Ohio Co., 252 U.S. 388, 397 (1920)). “[T]he mere assertion in a pleading that the case

is one involving the construction or application of the federal laws does not authorize the District

Court to entertain the suit.” Malone v. Gardner, 62 F.2d 15, 18 (4th Cir. 1932).

Plaintiffs Amended Complaint fails to establish any viable ground for federal subject

matter jurisdiction under 28 U.S.C. § 1331. Plaintiff does not allege Defendants violated any

federal statute or constitutional provision, nor is any type of federal question jurisdiction otherwise

evident from the face of the pleading. Instead Plaintiffs Amended Complaint references state law

causes of action, including bad faith, negligence, breach of contract, and other intentional tort

claims. However, § 1331 does not independently provide this court with subject matter jurisdiction

over these state law claims. To the extent Plaintiff seeks to assert claims pursuant to 42 U.S.C. §

1983 for the violation of his civil rights, he has failed to allege sufficient facts to demonstrate

Defendants acted under the color of state or federal law, and purely private conduct is not

actionable under § 1983. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 940 (1982). “Federal

jurisdiction [does not] attach on the bare assertion that a federal right or law has been infringed or

4:19-cv-01616-MGL

Date Filed 02/25/20

Entry Number 59

Page 5 of 6

violated.” Burgess, All F.2d at 43-44. Plaintiff has not shown that the court has federal question

jurisdiction over his claims.

To the extent Plaintiff seeks to establish the court has jurisdiction over his claims pursuant

to diversity of citizenship, the undersigned finds Plaintiff has failed to allege sufficient facts to

demonstrate this type of jurisdiction. Section 1332(a) of Title 28, United States Code, requires

complete diversity of parties and an amount in controversy in excess of $75,000. Complete

diversity of parties in a case means that no party on one side may be a citizen of the same state as

any party on the other side. See Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74

nn.13-16 (1978). Plaintiff fails to demonstrate facts to satisfy the requirements for diversity

jurisdiction as he and one of the Defendants are South Carolina citizens. ECF No. 51 at 2-3.

Accordingly, the court has no diversity jurisdiction over this case.

II.

Conclusion and Recommendation

The undersigned recommends that the court dismiss the Amended Complaint without

prejudice and without issuance and service of process.

IT IS SO RECOMMENDED.

Kaymani D. West

United States Magistrate Judge

February 25, 2020

Florence, South Carolina

The parties are directed to note the important information in the attached

“Notice of Right to File Objections to Report and Recommendation.”

4:19-cv-01616-MGL

Date Filed 02/25/20

Entry Number 59

Page 6 of 6

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and

Recommendation with the District Judge. Objections must specifically identify the portions of the

Report and Recommendation to which objections are made and the basis for such objections. [l]n

the absence of a timely filed objection, a district court need not conduct a de novo review, but

instead must only satisfy itself that there is no clear error on the face of the record in order to accept

the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005)

(quoting Fed. R. Civ. P. 72 advisory committee’s note).

Specific written objections must be filed within fourteen (14) days of the date of service of

this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ.

P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by

mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 2317

Florence, South Carolina 29503

Failure to timely file specific written objections to this Report and Recommendation

will result in waiver of the right to appeal from a judgment of the District Court based upon

such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Am, 474 U.S. 140 (1985); Wright v.

Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

U <• M.

mzJy

c .

[ DECISION and order

; I

OF THE

south Carolina Workers’ COMPENSATION COMMISSION

! YCC

NO.:0515498

RANDY WILLIAMS,

Clairhajnt,

vs.

CURTIS OIL TRUCKING

Employer

and,

{ i

AMERICAN HOME ASSURANCES,

Carrier

Deferents,

HEARING:

Held at Floreiice/Darlington Techni

cal College, 225 Swift Creek Road,

Hartsville, South Carolina

APPEARANCES:

■ Jebaily of

MoAngm, OohlS

C°aSlf ““ M°°re °f

PURPOSE OF

THE HEARING

DATE OF

HEARING:

STofl

50, 51 and by operation

i lt

June 9, 2008 | |

! !

DECISION AND

ORDER:

*.! 'i

FIT Bn-

Susan S. Barde n,j Commissioner

.fona

i i

! I

RECEIVED

JUL 2 9 2008

BY:

K>'

Decision and Order

wcc File No.: 0515498

Page 2

Stipulations

603 and any

®)

67.

ssion

Notice of the hearinl

above

» £8g%%gb

The Claimant’s aveijage

Form 20 as $323.57

atdS3WS^~KteareSh own on the

self

£L4MANT BIQGR APm^n

AGE:

DATE OF BIRTH:

iy 21,1959

SEX:

Male

MARITAL STATUS:

Married

WORK HISTORY:

EDUCATION:

1 Manual Labor

4«h Carolina School for the Deaf and Blind

completed up to 9* Florence Pubhc Soh^f grade lr7;

MILITARY SERVICE:

None

tf?-

I '

r' ■

V~'’

* Decision and Order

wCC File No.: 0515498

Page 3

APA SUEMT^QTamo

The Claimant introduced the ’ Mowing iscords by way of APA submissio

ns:

PRIOR MEDICALS

Exhibits/Medical Reports

Dr. George Dawson, HI

Association

Dates of Servifp

Pee Dee Speech and

Hearing

Pagefsl

5/25/66-2/24/03

1-28

Pee Dee Ear Nose and

Throat & Facial Plastic

Surgery

10/2/98-3/2/04

29-41

Florence Orthopaedic

Associates

5/14/01-6/14/02

42-49

Association

Sumter County EMS

Dates of Service

CURRENT MEDICALS

Exhibits/Medical Renoit*

10/3/05

Pagefe)

Tuomey Regional

Medical Center

10/3/05

51-55

Doctors Hospital

10/4/05-10/5/05

56-67

Doctors Hospital _ Outpatient Bum Center

10/4/05-11/8/07

68-116

Doctors Hospital

10/13/05 -10/17/05

Dr. Roland Skinner

117-125

Florence Neurological

12/7/05-10/17/07

Dr. Alfred Dawson

126-159

Florence Orthopaedic

Associates

12/22/05-9/7/06

160-173

1/3/05-6/5/07

174-181

Lowes Physical

Therapy

1/16/06-2/23/06

182-191

Carolinas Hospital

System - ER

1/22/06

192-199

Dr. Robert Mullins

10.

11.

12.

13.

Dr. Margaret Hoffineyer

j4pjd'&*cC)e £

- decision and Order

WCC File No.: 0515498

Page 4

14.

Dr. Avie Rainwater

15.

16.

1/31/06-11/27/07

Healthsouth

Rehabilitation Center

3/6/06-4/26/06

McLeod Regional

Medical Center - Pain

Management

17.

18.

Behavioral Health

Group

Dr. David Stickler

19.

Carolinas Hospital

System - ER

8/25/06

Medical University of

SC -Deptof

Neurosciences

1/16/07

Carolinas Hospital

System - ER

20.

Adger Brown

21.

Dr, George Bitting

Carolinas Hospital

System

5/15/06-7/12/06

Vocational Evaluation

3/23/07

12/21/07,5/21/08

First Choice Healthcare

4/16/08

Carolinas Hospital

System-ER

4/26/08

The Defendant did not intro ± ice APA submissions.

The Clamant introduced thi lowing exhibit into evidence:

Ex. #1

Ex. #2

Ex. #3-4

Ex. #7

Ex. # 8

Ex. #9

Ex. #10

Claimant’s E m ployment History

Claimant’s h [e dication List

Sc'Soit!

“TO aid donor site.

S.c. School foj- Deaf and Blind Records

Florence Scbjool District One Records

200-338

339-357

358-364

365-372

373-376

377-382

383-388

389-401

402-408

' ■ ^pp-^Or o

' decision and Order

WCC File No.: 0515498

Page 5

gliMlMENTOFTTrar^fip

Tins matter is before the Co]

:TisSion ™ »F»nn 50 filed by the Claimant

on or about

January 16,2008 with a Fonn 51 mLmsive pleading dated February 15,

2008. Claimant

contends he is permanently and tot l

.. „

disabled as a result of injuries he received arising out of

and in the course of his employment itith Curtis Oil Tmcldn

S‘ He seeks a lump sum award with

the provision of Utica Mohawk lan^ge. Defendants tnaintain that Claimant is

not permanently

and totally disabled, and that sectioi t 42-9-30 should be applied m a* various body ^ ^

conditions. Defendants do not disp*t| that Claimant had a significant pm-ertisring heating loss

speech impediment, and tight knee Injury. Nor do they object to a lump sum awaid with Utica '

Mohawk language. The admitted bo

■njBhheada^mdleftlowerexJnitv. Claimant

ri^it shoulder

PSD in the left upper qnLrsnt

EjVgDENCF, IN THE CA gp

Mr. Williams, the Claimant, te stifled on his

own behalf. He has a ninth grade education;

his first seven years of school were <

ptoleted at the South Carolina School for the Deaf and

Blind. Claimant has been a track dn

vpr for most of his life. He obtained hi

s CDL license after

trying first in Charlotte, and then ag|ui at Florence Darlington Technical Coll

ege. He had been

employed with Curtis Oil since July|of 2005. Claimant's job was loading, delivering

, and

loading, tanks of asphalt to various

Companies. Claimant is right hand dominant.

i i

" Decision and Order

WCC File No.: 0515498

page 6

On October 3,2005, ClaimU drove

to Savannah where his tank,

er truck was filled with

tylsuit for loading and unloading the

asphalt. The suit included

a hard hat, plastic face shield, acoft,

and pants. Claimant delivered the load

of asphalt he picked

up in Savannah to the APAC plant juj Sumter,

During the p

rocess of transferring the hot asphalt

from the tanker truck to APAC’s cinjtain

er, ate,coupling on APAC’s stainless steel

mesh hose

burs, open and sprayed Are hot aspU all over Claimant. The

450 degree asphalt. He wore a safe

coupling had been attached to the

tanker truck by APAC personnel.

'’ h0t “P1*** b"™«i through Claimant

’s protective clothing

on his left and tight arms. He testified he felt

searing pain in his left fi

oiearm, and pain in his left

shoulder and neck

EMS workers transported Cl'

apt to Tourney Hospital in Sumfcr, where he was

referred

to the Bum Center in Augusta. At i hi

Bum Center, Claimant und

erwent an operation to apply a

skin graft from his left thigh to his

ey forearm. After returning home. Claim

ant was treated by a

Neurologist, Dr. Roland Skinner, for the pain in his arm;

the pain in his left shoulder and necjkjhis family physid an Orthopaedist, Dr. Alfred Dawson, for

. arcran, Dr. Margaret Hoffmeye,; ^ a

Psychologist, Dr. Avie Rainwater,

n. „

fl treatment of Depression and Post Traumatic Stress

Disorder. Claimant partidpated in peal there

py at Lowe’s Physical Therapy and H

Rehabilitation. He was treated by til Management Spedalist, D

ealth South

a neuromuscular specialist, Dr. Davii

Claimant testified he was oiM

r‘ L‘R< PenT= and evaluated by

Stickler, at the Medical Uni

Diversity of South Carolina.

e Mowing medications: Lyrica, f,

or nerve pain; Cymbalta,

for depression; Tizanidine, for mustjle pain; Prarioxin, for i

r itching; Ibuprofen for pain. Dr.

Dawson had initiaBy prescribed Oxychdone for p

ain. Claimant must

wear protective clothing and

.•/fy)p'£StoO)C£

Decision and Order

WCC File No.: 0515498

Page 7

sun block to prevent the damage fi

handicapped sticker for Claimant’]

°‘n

sun on his injury. Dr. Ski

nner authorized a

Vehicle.

Claimant described the paii |n his left arm where he

itching, and burning. The pain is 4

uses a special soap, ointment and j

Center because of recurring infect!

Claimant’s “nerve” Dai

PMn

was burned as constant tingling,

ivated by bending, stooping, sunlight, and heat.

urpcreen. He has made

m s at the bum site.

Claimant

trips to the Augusta B um

his neck behind hi

s ear and travels across

his left atm

'^£2fiSi^2EJSj_dowiUo his three left

“banging” jhjs funny bone; at times his left arm gets cold, "niepain^ni^iis

left arm is

constant. It is aggravated iy putting wejght on

on it or touching it. The pain claim

left shoulder is constant and aggraya

ant’s

by the weight of his left arm.

Dr. Rainwater is treating ciLi

^nt for his PTSD and depression.

injury at the hearing brought back 1

Seeing pictures of his

H meffl0,y ^ “s “**“ - -early brought Claimant to

tears. Claimant experiences hopeleis

ess, depression, feeli

mgS of W0Ithlessness, inability to

concentrate and inability to sleep, p

feels like a failure-lik

e he let other people down,

feels that Dr. Rai

Claimant

amwater is helping

3nd would like to continue tread

ng with Dr. Rainwater.

Claimant spends most of hi

positions. Because of his left upper

gjiadrant injury, he uses his right am fo

r everything. Now he

has started havinS problems with hi

ight shoulder. Bending, stooping

.reaching, pushing,

pulling, twisting, and turning all cans:

pain to his left u

pper extremity. Claimant

can only perform

Decision and Order

WCC Hie No.: 0515498

Page 8

the simplest activities of daily livii

g| He can prepare a bowl of c

covers

over

bedi

^d wash out a coff

of a table, throw

dust the toP

with dressing.

Before his accident Qaima it

“ a m°t0rCyCle-3,1(1

•«*« Playing football,

basketball, and baseball a little. H* : c

an no longer ride a motorcycle or play any sports.

Claimant has problems sleeps because the oai

pam wakes him up. Pain also i

interferes with

his ability to concentrate. He can EOI

focus long enough to watch a 30 minme television

program,

Generally he does not like the tele\ is ion

on because it aggravates his headache

s. The pain and

depression bring on the headaches.

Claimant testified hee iis cap4b|e of handling money. At the present tun

live in a mobile home. If awarded I njip sum, Claimant and hi

purchase a house. They have invest i

e» he and his wife

s wife would use the money to

g ated and found two homes in thei

eir price range which they

kked. If Claimant

owned his home, hfe and his wife could ii

ve on his Social S ecurity Disability

check, which he is already receiving.

Claimant had a pre-existing jh< taring loss and speech impedim

ent that Curtis- Oil was aware

of when they hired him. Claimant^

fe a bearing aid in his left e

a on the date of this hearing, but

his right hearing aid was damage ib ^

bilateral carpal tunnel syndrome and j e Wodc accident Additi01%, Claimant had pre-existing

/•Ts*

•5% permanent impairment of his ri

right knee.

Claimant testified that he wjs|,ot capable of woridng

as a truck driver in the future,

even

if loading or unloading was not part olf the job.

■ '/fyqe&y&x jy

C-

Decision and Order

Wcc File No.: 0515498

Page 9

f^BICALEVIDFNn?

Prior to Claimant’s wort ac ci dent he

was followed by Pee Dee Speech and Head

ng from

severe bilateral sensori-n

aural hea™S impairment (APA #1,

P- 11). On his Social Security Disg bi lily D

etennination report, Clinical Audiologist Melanie

Phillips indicated Claimant’s hearin

1 ^113,1 ***«10

P°*« of profound impairment

(APA #1, p. 28).

1966 through 2003 for moderate to

(§

On September 20,2001 Cldiman

t underwent bilateral carpal tunnel

release by Dr. George

Dawson. (APA #3, p. 43). Later^a

same month aaimant suffered a work ini

-injury to his right

knee, which required arthroscopy ail arthrotomy, with posteromedial

meniscectoray and

chondroplasty of themedial patella^. Claimant was left with a 7.S% p

of his right lower extremity. (APA ■ 't2

ermanent impairment

. P- 49).

On the date of his work acci d< ;nt, October 3,

2005, Claimant was tr

ansported to Toumey

Hospital by Emergency Medical Se rv ic

<AI>A«,p,50). At Toumey, his

wounds were

cleaned and dressed, and he was reiJr,

ed the next day to the Bum Center i

r in Augusta. (APA #5, p.

55).

At the Bum Center, Claimant ( was diagnosed with a 2% total body surface area b

left upper extremity. Cadaver skin

urn to his

m Srafta Ws left palm and left f0

rearm on 10-4-05.

(APA #6, pp. 58-61). Claimant was ^admitted on 10-13-05 to

replace the cadaver graft with a

split thickness graft from his left lower

f„

extremity. (APA # 8, pp. 119-122). Dr. Robert Mullins

allowed Claimant for wound manaUnent tan 10-24-05 through 8-24-07

• (APA #7, pp. 73.

' $&)Cb7&OyQ'

Decision and Order

WCC File No.: 0515498

Page 10

prescribed Lunesta; and Paxil. (Alj\ #7, p. 75) After noting tharClai

a®ant had left shoulder pain

and a decreased range of motion,

T ^

,, Mullins airangad for a neurological eonsultati

on. (APA #7,

P- 83). In addition, Dr. Mullins recjojded reports indicating Claimant had a tom

rotator cuff in his

Pp. 92-95). By 11-8-06, Claimant

was nearing

maximum medical improvement £ i

t^n the standpoint of his left fore

arm skin, and Dr. Mullins

noted Claimanfs workrestrictionrj rtee based on his neurological,

orthopaedic, and

psychological conditions. (APA #j, ^ 99), Dr. Mullins found Claimant at MMI

left shoulder and C3-4 disc proteins. (APA #7,

om his burns on

and assigned him a 1® whjll person impaiiment rati

ng.

Claimant first saw Dr. Rok

‘n 1 Skinner, a Neurologist,

on 12-7-05 with complaints of

S^^D^a^nn a^DlUnbneSS ^ ^

31131

Snider secondary to his work accident on 103-05. Dr, Slormer noted that Ciairjiajit may have snatched his shoulder posteriorly when the

asphalt landed on him. (APA #9, L Dr. Skinner suspected supetfeial

to soft tissue injuries with regard t^ Claimants left upper extremity pain, and

stress fiom Claimant’s work accidjnl. (APA #9,

notes reflect that Claimant

tf headaches and symptoms of peripheral neuropathy

throughout his treatment. (APA # b, pp. 132-141)

■ Claimant also exhibited signs of significant

depression, and Dr. Skinner referred bi

nm to Dr. Rainwater. (APA #9,

P* 130). Ultimately, Dr.

Skinner felt Claimant should be eyhl

■ated by a neuromuscular expert and refenred him t

oDr.

David Stickler of the Medical Uni

\ ei sity of South Carolina. (APA #9,

P-143). Dr. Skinner found

Claimant at MMI on 2-12-07, with

a 40% permanent impairment to hi

s left upper extremity,

experienced continued problems w i

P-128). Dr. Skinner’s

/fyqp

VX<Q

Decision and Order

WCC File No.: 0515498

Page 11

which equated to a 24% whole perM i

faVSmA ^?or headaches. Dr. Skinner rated Claim

ant

at 8% whole person impairment C

ohsidered together, Claimant’s

whole person impairment

rating was 30%. (APA #9, p. 149).

Dr. Alfred Dawson, an Orthopaedist,

evaluated Claimant for his left rotat

or cuff injury.

An MRI on 1-13-06 showed an imtrasu

bstance tear of the subscapulatis tendon at the

musculotendinous junction, with mjl^ AC joint degenerative

MRI on 3-17-06 revealed mild central

referred for physical therapy, but

changes. (APA #10, P* 162). An

disc protrusions at C3-4. (APA #10,

P-167). Claimant was

lotted it increased his shoulder pain. (APAM0,

P-164). Dr.

Dawson indicated that, more likely tlJan

not, Claimant’s work injury aggravated his preexisting

neck injury, if it was pre-existing. (L #10, p lfi?)

could not endure the pain generated b^ pushing beyond tolerable levels.

” “

(APA #10. p. 169). D,

Dawson found Claimant at MMI or h!

fpaedieaily, with a 30% permanent

tQ ^

upper extremity and a 5% permanent

mpairment to his cervical spine. (APA #10,

P- 173).

Claimant tried two courses c f

hysical therapy, one at Lowe’s Ph vsi

ysical Therapy, (APA

#12. pp. 182-191) and die other at IpMth South Rehabilitation. (APA #15,

courses resuited in daman, being jcharged without progress duere the i PP- 341-357). Both

ncrease in pain he

experienced Claimant reported he felt the therapists did not unde

tstand his pain and were

purposely trying to hurt him. (APA M2, p. 189).

Claimant began treating wit| 1*. Rainwater, a Psychologist,

on 2-4-06.-(APA #14, p.

203). Dr. Rainwater recognized i

mnjn|diately that Claimant’s current psychol

ogical problems

were a direct consequence of his wcjdj accident. (APA #14,

P-203), Claimant was diagnosed with

i !

C"'-

Decision and Order

wcc File No.: 0515498

Page 12

1) PTSD that encamps deprejilm, ^ ^

and insomnia secondary

» pain; 2) Mixed Pain Disorder, 3j): 3ody Dysmoiphic Disorde

r; 4) Delusional Disorder,

perseottmy type; and 5) Marital

(ApA #J^

P- 205). Throughout his course

of treatment

Dr. Rainwater documented Claimtn

helplessness, and ftustretion over his

injury and resulting pain. Claimart

dso experienced much distress o

ver financial problems

associated with his temporary total b enefit checks being delivered sporadicall

y- (See generally,

APA# 14). Claimant's treatment ikjluded individual th

erapy, traumatic injury group therapy,

and

biofeedback assisted relaxation, (j d A #14, p. 205-332).

Dr. Rainwater opined Clair umt’s PTSD and de

pression were causally related to the

traumatic work injury and his chroU pain. Claimant re

quires future psychological care and is

psychologically unable to engage i 1

competitive employment. (APA #14,

p. 298). An

Assessment of Psychological Functtping showed Claim

am to be moderately to markedly

impaired psychologically. (APA #1

4) pp. 299-301). On 7-3-07, Claimant

was at MMI for pSycho.

physiological pain, with 32% permai

ent impairment to the whole person,

Uns finding was to a

reasonable degree of psychologicalj certainty. (APA #14,

PP- 315-319).

On referral from Dr. Skinnejr,

Dr. David Stickler of MUSC

evaluated Claimant on 1-1607. Dr. Stickler findings were not L isistent with the

typical type of neuropathy expected

following a bum. (APA #18, p. 374). Dr. Stickler did not observe the typical vascular

abnormalities or atropic changes in die left arm that usuall

y accompany chronic regional pain

syndrome- (APA #18, p 374). Dr. ftjckler did confirm left uln

ar nerve impairment through

electrodiagnostic testing. (APA #lt,

pp. 374-75). He opined that the ulnar nerve ini

tjrny could be

Decision and Order

WCC File No.: 0515498

Page 13

the potential etiology for chronicr;

£ ional pain syndrome, but he

could not find clinical evidence

to confirm that diagnosis. (APA #js P- 375).

Claimant saw Dr. George iffling for an Independent Medical E

valuation on 4-16-08. Dr.

Bitting noted Claimant sustained

degree bums to bis left upper extremity that ca

used ulnar

nerve neuropathy. This affected his ability to use his left ann.

Dr. Bitting’s review of Clai

mantis

medical records documented bilatera

carpal tunnel syndrome; left rotato*

ahouider paiu with AC join. iuvohLL,; sear tissue with loss of toctionr cuff injury; right

left lower extremity; hislmy of sevfcA hearing loss;

(APA #21, p. 39!). On the Form lW Dr. Bitting

over skin graft site of

depression related to chronic pai

n; and PTSD.

engage in competitive employmeaj afud win „eed further medical care

injuries. (APA #21. p. 392.394). Dr. Bitting

medically unable to

fohxre for his work

opined, to a reasonable d

egree of medical certainty,

that, as a result of his work accider t <

on 10-3-05, Claimants ustained an 8% permanent impairment

to his cervical spine, 10% permanent i

t impairment to his left shoulder,

5% permanent impairment

to his right shoulder, 5% permanent iL

ms leIt forearm, and 25%

impairment to his nervous system icaj left ulnar ne

«opafty.(APA#21,p. 392). D, Bitting

concurred with Dr. Rainwater that i 2&imant sustained a 32% whole petson impairment ftom Ms

PTSD and depression. (APA #21, ). 394).

Dr- Biding additionally opitef>, t0 a reasonable degree of medical

Claimant's left upper extremity wai Jffected by his 10-3-05

certainty, that: 1)

work injury; 2) Claimant’s PTSD and

^e^ress^on rdardted from his 10-3-j)^ work injury; 3) Claimant

s right shoulder pain, mom likely

Decision and Order

wcc File No.: 0515498

Page 14

than not, directly or indirectly was

caused in whole or in part by the cervical injury and/or

preexisting hearing and speech in^hmant Dr. Bitting indi

Cated Claimant's

pre-existing

speech and hearing impairment, combined with his

work related injury will ultimately result in a

injury alone; is permanent in naruni and of anch serim,™

I™ such senousness as to constitute a hindrance or

obstacle to obtaining employment; aid resulted in

a substantial increase in tenns of time lost fir,

permanently and totally disabled. ^ Brown noted that Clai

““adless than a high school

educate, performed only one job U eufe We, ^ no

is nearing fifty years

of age, is unable to communicate w i

the public, and has significant functional limitati

ons.

Claimant can no. compere in any „L of substantial gainflll

PP- 383-

388).

EINPINGS OFt?a^t

Based upon the testimony o:‘tie witness,

4s/

the docmnentaty evidence submitted by the

respective parties pursuant to the Aihiinistrative Procedures Act,

and the exhibits entered into the

record a. dte hearing, the uudetsignpj Commissioner mates the following findin

gs of fact as

required by S.C. Code Ann. § 42-1 7-io (1976):

, /ZjOjOtoc'Os'/)

Decision and Order

WCC File No.: 0515498

Page 15

(1)

The parties to this p re ceeding are

subject to and bound by the terms

and provisions

of the South Carolina Workers’ Cc *

njpensation Act, as amended to date, with Curtis Oil T:

nicking

as Employer and American Home insurance as the earner.

(2)

Claimant’s average w ^ekly wage was $323.57 with

a compensation rate of

$215.73.

(3)

Claimant had pre-es is ting bilateral hearing 1

oss and speech impairment from

childhood. At the time of the head nj ; Claimant’s hearing impairm

ent had reached the profound

level.(APA #1, p. 28).

(4)

Claimant had pre-e> in ting bilateral carpal tunnel syndrome. (APA #3,

(5)

Claimant had a 7.59, >

] >ermanent impairment of his right knee as

injury prior to his work accident or 10-3-05. (APA #3, p. 49).

(6)

P- 43)

a result of a work

Claimant has a 9th irlde education; the 1-7

grades were completed at S.C. School

for the Deaf and Blind.

•

(7)

Claimant is 49 yeaps of age. He is manied and has a 19 year old son.

(8)

Claimant is right hpjd dominant.

(9)

Claimant worked z s truck driverformostofhis life. He obtained

a CDL from

Fiorence-Darlington Technical College.

(10)

Claimant sustainetj aj* degree bums to his left forearm in

an admitted accident

on 10-3-05 arising out of and in the

■me of his employment with Contis Oil. The bum wound

to his left forearm required two ski: 1 grafts, with the second graft taken from a si

site on his left leg.

(APA #6 p. 58-61; APA #8, p. 119 122).

I I

Decision and Order

WCC File No.: 0515498

Page 16

(ID ,

Claimant developed pinar neuropathy in his left upp

er extremity as a result of the

10-3-05 work injury to his left fore asm.

• Dr. Stickler confirmed this conditi

on by

electrodiagnostic testing on 1-16-07

However, diagnostic testing failed to

confirm RSD or

CPPS. (APA #18, pp. 374-75).

(12)

Claimant develope d PTSD and D

epression as a result of the 10-3-05

work

injury.

Claim

(APA #14, p. 298). Claimant’s auUrized treating psychologist, Dr. Rainwater, found

ant

o ave markedly imparted psychojoLal function that left him with 32®

whole person

(APA #14, pp. 315-lJ). Br. Rainwater indicated Claimant

psychophysiological standpoint, bt t would required four

was at MMT from a

e psychological care to maintain his

current level of functioning. (APA W 8

psychologically unabl ®t0 6ngage

pp. 315-19). Dr. Rai

ainwater opined Claimant

fomP^tive employment. (APA #14

was

, p. 298).

03)

Claimant sustained lift shoulder

rotator cuff injury as a result of the 10-3-05

work injury. This finding is based oh darmanfs testim

ouyandthe medical records of

Clarmanfs authorized treating phyjitlans, Br. Sldrmer, (APA #9

* P-126), and Dr. Dawson,

(APA #10, p. 162). An MR! on l-(3 06 showed an i

tutrasubstance tear of the subscapularis

tendon, with mild AC joint degenefojve changes. (APA#10,p. 162).

(14)

Claimant sustained a injury to his cervical sm

spine or aggravation of a preexisting condition of his cervical spine as

4 IB,“lt °f

10-3-°5

accident. This finding is

Decision and Order

WCC File No.: 0515498

Page 17

based on Claimant s testimony an<f the medical records of Dr. D

awson indicating that, more

likely than not, Claimant’s work ir j

aggravated his pre-existing neck injury, if it was

existing. (APA #10, p. 167). An

on 3-17-06 revealed mild central di

(APA #10, p. 167).

(15)

Dr. Dawson found Cl

pre-

sc protrusions at C3-4.

imam to be at MM orthopaedically on 9-7-06, with 30%

permanent impairment to his left u; >

f er extremity and 5% permanent impairment to hie cervical

spine asa result of his 10-3-05 wo rk

injury. (APA #10, p. 173).

(16)

As a result of the 10-^05 woric injury, Claimant

experiences headaches related to

tension, secondary to chronic pain. X ns finding is based on Claim

ant’s testimony and the

medical records of authorized treating neurologist, Dr. Skinner. (APA #9,

P-128,132-141).

(17) Dr. Skinner found Ctt

atmant to be at MM on 2-12-07, with 40% permanent

impairment to his left upper eareniijy, which equated to 24% whole per:

son impairment.

Claimant sustained an 8% whole p

"" impairment due to his headaches, resulting in a total

whole person impairment rating of 3)%.

(18)

(APA #9, p. 149).

Based on Claimant’s ‘pioiiy rntd the records and opinions of Claimant's

authorized medical and psychology providers, I find Claimant to be petmanentl

y and totally

disabled under section 42-9-10 as ajtiult of the 10-3-05

work accident The results of an IME by

Dr. George Bitting and the Vocational E

considered in determining the extenjt df

(19)

valuation by J, Adger Brown, MS, have also been

Oaimanfs disability. (See APA #s 20 and 21).

Claimant’s work inj tr^tohis left forearm affected his left upp

er extremity, left

lower extremity, nervous system, caniical spine, and psyche. Therefore, Defendants

’ contention

Decision and Order

WCC File No.: 0515498

Page 18

that his injuries should be compenii

(20)

a ed under section 42-9-30 is with

out merit.

The work injury Cl; h rant sustained on 10-3-05

combined with his preexisting

cal catpal tunnel syndrome, and right knee i

mpaixment,

causing him to lose substantially n oje ti

tom work than he would have tom the 10-3-05

injury alone.

hearing and speech impairment, bi

(21)

The work injury CkUant sustained on 10-3-05

percentage of permanent disability \

impairment, bilateral carpal tunnel

resulted in a substantially higher

to the combination of his pmxexistin

B hearing and speech

Nndrome, and right knee impakmen. dran would have been

sustained as a result of the 10-3-05 injuiy alone.

(22)

The work injury CljiLnt sustained on 10-3-05 tesulted in substanrially

mcreased medical costs due to the drjor existence of his hearing and speech impairment, bilateral

(23)

Claimant’s pre-exist n 5\ hearing and speech impairment, bilateral carpal tunnel

syndrome, and right knee impairn^ ^

were serious enough to constitute a hindran

to employment before the injuiy of l(i-3-05.

(24)

ce or obstacle

I have carefully conUemd all of the documeatary evidence

in this case,

including the APA submissions as no ed above.

(25)

The causally related » atment Claimant received &

om the above medical

providers was reasonable and nece&ia y under section 42-15-60

and tended to lessen the period

of his disability; the Defendants shall be res

ponsible for payment of the same.

'/)y<PtXk>d.\'Y O

f~^•

Decision and Order

Wcc File No.: 0515498

Page 19

(26).

aai~05 work accident,

— Msleveloftacti(ming. “

“—*•

(27)

daimant’s rigbt he^rijig aid was damaged in the 10-3-05

work accident. Claimant

is entitled to new hearing aids.

(28)

Claimant is entitled td 5

disability. Defendants are entitled 1:>

(29)

00 weeks of compensation for p

eimanent and total

credit for compensation already paid,

Claimant has the i ajty to handle money and a lump sum di

be in his best interest. He and his

sability award.would

dfe have investigated th

on Claimant’s Social Security checjc |f they own ^

e cost of buying a house, and can live

hom

e. Claimant’s award shall be paid

in a lump sum and it shall be allocat

f wording to

^COrr, 227 S.C. 226;

S7S.E.2d 593(1955). SeeSciarotn

t£2Sa837 R2dl35(3«Cir.l98S);

> sge also on remanti

Sd,arotta v. Secretary nf tt wr c ??5

F. Supp.148 (D.NJ. 1989).

CONCLUSIONS OFT Mv

Accordingly, the undersigned Commissioner makes the followi

ng conclusions of law as

required under South Carolina Codl

Annotated Section 42-17-40,

as amended:

(!)

Under section 42-1-ho, the Claimant

was a covered employee at the time in

question and under section 42-1-140,

the defendant employer was a covered

employer under the

Act.

(2)

Under section 42-15-120 Claimant met th

e necessary notice requirements.

Decision and Order

WCC File No.: 0515498

Page 20

(3)

Under section 42-1-1

'0, the Claimant did

accident arising out of and in the course

sustain a compensable injury by

Of his employment with Curtis Oil Trucking.

Claimant’s work in,|ujy to his left forearm affected

PTSD and Depression. The natural

other body parts and caused

cjmsequences resulting from a compensable injury are

compensable. Mnliinax v. Win, r^- 318 S.C. 431,

458 S.E.2d 76 (Ct. App. 1995).

The aggravation of an injury by

me djjcal treatment i

Is compensable. XtL Mental injuries induced

by a compensable physical injury ane

compensable. aafesarvJBantist Medici Cl

enter, 343

S.C. 487,541 SJB.2d 526 (2001); Co si

ifig^X_Qwens-Conu SgPiberg)asq_CorporatifYn 335 s c

77,515 S.B2d 104 (Ct App. 1999;;: Sstridgev wi

Qmkgontrols. Try- 325 S.C. 532,482.

SE.2d 577 (Ct App. 1997).

(4)

Under section 42-15j-6jo, the Claimant h

35 ****** P^r medical care that

tended to lessen the period of his difc

ability. Claimant has reached maximum medical

improvement but is in need of conti

“

teatme“' “eluding, but not limited to,

medication’ and psychological/psyclii

•

treatment in order to maintain his curie

nt level of

functioning and prevent further deteiih

. „

,rati0,, 0f 1“* °°ndi,im- »w though a claimant has

Layman, In,c„ 334 S.C. 574,581,5

(5)

ZZT~

Cteri

4 SJB.2d 593,597 (Ct. App. 1999)).

Under section 42-94li the Claimant is totaU

y and permanently disabled from the

C•

Decision and Order

Wcc Hie No.: 0515498

Tage21

work accident of 10-3-05 and i

its effect on his left

“PPCT “d lower ^ara-nties, his neck, his

nervous system, and his psyche.

Total disability urn I

section 42-9-10 may be establish

A claimant may be presumptively loyally disabled b

ed in a number of ways.

y showing one of the physical injuries

enumerated in section 42-9-10.

g®

gjjv- Tidelanri TTrtUtj

354 S.C. 100, 580 SJ3.2d

100(2003). Or a claimant “y Hr ““ disaMity »»*r ^0

n 42-9-10 by showing an

mjuty, which is not a section 42-9-bj scheduled injury, ca

n“d-a complete loss of earning

capacity. Id; Stephenson v.

<a.J,

S-. 323 S.C. 113, 473 S-E.2d 699 (1996). Alternative]

claimant may establish total disability by showing a

y, a

section 42-9-30 scheduled ini

injury affects one

or more additional body parts. Sm^L tony,

^ffigLumberCn

236 S.C. 454,471,114 S.E.2d

S37, 845 (1960); Simmons v rw 0 p

■ Charleston, 349 g c

(injury to scheduled member that ajfe c

64,562 SJ2.2d 476 (Ct. App. 2002)

ted other parts of body compensable as general

disability). It is enough that the of 14* body part or parts be effected. T

There is no requirement

that a separate impairment rating be ji

ven. ‘ ‘tteSiBgletas Court intended‘i

‘impairment’ to

encompass a physical deficiency.”

SS8&1L354S.C. at 103,

580 S.E.2d at 101. m addition, an

injured employee is entitled to proefc

j under the loss of earning

capacity model is to show that

be or she has suffered impaiim

ent oir i Usability to tw

o or more scheduled members.

349 S.C. at 64, 563 SJE.2d at 476.

T ^ « because of injmy to e

®t

the employee was receiving at the tijn; of injury in the same o:

Ann. § 42-1-120. (Supp. 2007). tL

am the wages which

rany other employment.” S.C. Code

standard for determining total disability is

not complete

Decision and Order

WCC Hie No.: 0515498

Page 22

helplessness. Coleman

Yi-Qualitj ^Concrete

245 S.C. 625, 142 s-E-2d 43 (1965).

Inability to perform

common labor is total disability f

or one who is not qualified b

y training or

experience for any other

employment. gaka v. E.T n,,p„

S£^i^ours£a, 227 S.C 465

S-B.2d 581 (1955), The generally

other than those that are so limited in

quality, dependability, or quantity that

services

a reasonably stable

of a work-related injury

can perform only

limited tasks for which no reas

tably stable market exi

exists are considered

notwithstanding their normal earn]

totally disabled

I > capacity. Stephenson, 323 S.C.

at 113,473 SJ5.2d at 699.

(6)

Under section 42

00 Claimant’s disability is s

nbstantially greater, by

reason of

the combined effects of his pre-exife

t3 ng impairments

would have resulted from the subsejjient injury alone.

than ** which

market for them d

0eS not exist- Employees who because

indicates the legislature clearly enviiibned that a claimant

" ? °'S“6™42'9"400(a)

and(d)

may recover for greater disabilitythanthat

incurred from a single injury to a

pi irdcular body part if the

combination with

irn any pre-existing

condition hinders

371 S.C. 159,164,638 S£2d

664, 666 (2006).

(7)

Under section 42-9-Wl claimant is

commuted value.

(8)

Und6r

sum at

227 S.C.

226, 87 SJE.2d 593

(1955) the

4um award may be allocated to take into

consideration his life

expectancy according to section 1<-150 and the fee

agreement between the Claimant and his

attorney. See Sciarqtta ■^lowen, ^3j7 F.2d 135 (3*

Qr- W88); see alsr,

on. remand Sciarattg ■»

commuted value of Claimant’s hay

entitled to be paid in a lump

/Q/Op

Decision and Order

WCC File No.: 0515498

Page 23

Secretary of TTTT c

735 F. Supp.148 (D.NJ. 1989).

ORDER

NOW THEREFORE IT IS ORDERED that the D

efendants pay to the Claimant the

commuted value ofHve Hundred (500) weeks of compensation, i

in a lump sum with Utica Mohawk

allocation, at the compensation rate of $215.73

P®- wee^ for permanent

and total disability.

Defendants may take credit for weekly

compensation already paid.

IT IS FURTHER ORDERED that the Defendants shall b

e responsible for all reasonable and

necessary nursing services, medicines,

Prosthetics, travel, medical, hospital, ^ other ffiedica]

psychological treatment and/ or care during die life of the intend

employee for any condition related

to the injuries tile Claimant has suffered ansi

mo out of this accident.

IT IS SO ORDERED.

No hearing costs are assessed in this instance.

S.C. WO

RS’

COMMISSION

By:.

SusanS. Barden, Commisaoner

, Bated:

,2008

F^^oraaom^toriia^^^seoto '

This^M.CiSYOtSjJ^

By.

sAnmm

P 200-t

Additional material

from this filing is

available in the

Clerk's Office.

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