Court of Appeals Upholds Commission’s Order that Claimant Suffered No Change of Condition

by Collins & Lacy, P.C.
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The South Carolina Court of Appeals recently upheld a South Carolina Workers’ Compensation Commission’s decision that a Claimant suffered no change of condition in Carter v. Verizon Wireless (Op. No. 5191, refiled April 16, 2014).

FACTS: Claimant sustained a work-related left knee injury on December 27, 2006. She had surgery in June 2007 and reached maximum medical improvement (MMI) on March 3, 2008. The authorized treating physician assigned 18% impairment to the left leg.

Claimant fractured her right ankle in February 2009 causing her to be wheelchair bound for six to eight months. A hearing on permanency was held before Commissioner Susan Barden in October 2009. At that time, Claimant testified her right ankle was completely healed. On December 3, 2009, Commissioner Barden awarded 25% permanent partial disability to the left lower extremity, including causally related medical care and treatment. Specifically, Claimant was entitled to “causally related future medical treatment that may tend to lessen her period of disability, as recommended by the authorized treating physician, including Darvocet or comparable medication.” (emphasis added).

Commissioner Barden further found Claimant had pre-existing advanced degenerative joint disease.
Claimant returned to the authorized treating physician in November 2010. The doctor increased the left leg rating to 42% impairment and a recommended a total knee replacement. On November 29, 2010, Claimant filed a Form 50 requesting additional medical treatment due to a change of condition.

The parties deposed Claimant’s doctor. He testified Claimant needed a knee replacement in 2008, but he did not recommend the surgery because she was too young (49 years old), and he believed a patient knew better than anyone else when he or she needed a knee replacement. He further testified Claimant’s condition materially worsened since 2008 due to natural degeneration of her arthritic condition that was “more of a degeneration, insidious, slow problem” rather than “acute in nature.”

The change of condition hearing was held February 16, 2011 before Commissioner Avery Wilkerson. Claimant admitted her frequency of pain, inability to sleep without medication, difficulty walking, and inability to maneuver stairs was the same as in 2009. However, Claimant testified the intensity of her pain increased since 2009. By Order dated April 18, 2011, Commissioner Wilkerson denied Claimant’s request for benefits finding she did not sustain a change of condition. He further ordered medical treatment limited to Darvocet or comparable medication as similarly ordered by Commissioner Barden in December 2009. The Appellate Panel affirmed Commissioner Wilkerson’s Order.

The Circuit Court then reversed the hearing commissioner and Appellate Panel finding the record lacked substantial evidentiary support for the finding that claimant did not suffer a change of condition. The Circuit Court also reversed the modification to the provision in the December 2009 order allowing for future medical treatment.

A change of condition in a workers’ compensation claim is defined as “a change in the claimant’s physical condition as a result of the original injury, occurring after the first award.” Causby v. Rock Hill Printing & Finishing Co., 249 S.C. 225, 227, 153 S.E.2d 697,698 (1967). Claimant’s doctor testified she needed a knee replacement in 2008. Claimant’s testimony merely indicated she had increased pain. The Court of Appeals determined Commissioner Barden’s determination Claimant had a pre-existing advanced degenerative joint disease and the authorized treating physician’s testimony regarding the natural progression of Claimant’s disease, supported the Appellate Panel’s determination Claimant did not suffer a change of condition.

Despite agreeing with the Appellate Panel that Claimant did not suffer a change of condition, the Court of Appeals reversed the Appellate Panel’s determination that Claimant’s future medical treatment was limited to Darvocet or similar pain medication. The Court found the Appellate Panel’s Order replaced “including” from the December 2009 Order with “specifically restricted to,” which deprived Claimant of seeking additional medical treatment for her knee condition that would tend to lessen her disability.

In summary, the Court of Appeals determined Claimant did not sustain a change of condition; however, it found she was entitled to additional medical treatment, i.e., total knee replacement, based on the December 2009 Order of Commissioner Barden that awarded future medical treatment that may lessen Claimant’s period of disability as recommended by the authorized treating physician.

TAKEAWAYS: A change of condition must be a change in a claimant’s physical condition. The natural progression of a preexisting disease or an increase in pain is not compensable.  This emphasizes the need to carefully read proposed Orders and compare them to prior Orders of the Commission. If you do not appeal discrepancies, they can become the law of the case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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