saturday, january 25

2020 SC BAR CONVENTION

Workers’ Compensation Section

Saturday, January 25

SC Supreme Court Commission on CLE Course No. 200524

An Update on KERMIT from the Commission

Gary M. Cannon




No Materials Available

Legislative Update

Representative Nancy R. Mace




No Materials Available

Workers’ Compensation Case Law Update

Allison C. Nussbaum Allison P. Sullivan




2020 S.C. Bar ConventionWC Case Law Update

ALLISON P. SULLIVANCOLUMBIA, SCBLUESTEINATTORNEYS.COM

ALLISON NUSSBAUMCHARLESTON, SCMGCLAW.COM

Keene v. CNA Holdings, 426 S.C. 357 (Ct. App. 2019) (Cert Granted Nov. 1, 2019)

• Claimant performed maintenance work at the Celanese polyester plant in Spartanburg. Celanese had contracted with Daniel Construction Company, Claimant's employer, to handle all maintenance work at its Spartanburg plant, and Daniel assigned Claimant to work at this plant. Claimant's duties included maintaining and repairing pumps, valves, condensers, and other equipment. In performing this work, Claimant came into contact with asbestos gaskets, packing, and insulation materials. Claimant was diagnosed with mesothelioma, a type of lung cancer, in Sept. 2013 and he died in Dec. 2014.

• Claimant’s estate filed this action against Appellant and several other defendants, alleging negligence by failure to warn Claimant of the dangers of asbestos, failure to provide adequate safety measures against asbestos dust, and failure to provide safe environmental conditions in the Spartanburg plant.

• Appellant then filed a motion to dismiss pursuant to Rule 12(b)(6), SCRCP, or, in the alternative, for summary judgment pursuant to Rule 56, SCRCP. The basis for this motion was that Claimant was a statutory employee of Celanese and, therefore, his exclusive remedy was under the South Carolina Workers' Compensation Act, S.C. Code Ann. §§ 42‐1‐10 to 42‐19‐50.


• The circuit court denied the motion and conducted a trial in 2015.• At the conclusion of the trial, the jury found that the negligence of Celanese caused Claimant’s mesothelioma and awarded $2 million in actual damages to Claimant’s estate for its survival claim; $5 million in actual damages to Claimant’s estate for its wrongful death claim; and $5 million in actual damages to Claimant’s wife for her loss of consortium claim. The jury also found Celanese was willful, wanton, and reckless and awarded $2 million in punitive damages.


ISSUES ON APPEAL1. Did the circuit court err by declining to grant a JNOV on the ground that Claimant was a statutory employee of Celanese?2. Did the circuit court err by declining to grant a mistrial on the ground of jury misconduct?3. Did the circuit court err by admitting into evidence a video showing Seay crying out in pain?4. Did the circuit court err by upholding the amount of the jury's verdict?


Statutory Employee• Jurisdictional question (Poch v. Bayshore Concrete Prod., 405 S.C. 359 (2013)

• Appellant argues that Claimant's maintenance and repair work on plant equipment was a part of the business of Celanese, which was manufacturing polyester fiber, because the plant would not have been able to properly function without the maintenance and repair work performed by Seay and other Daniel employees.


S.C. Code Ann. § 42‐1‐400• When any person, in this section and Sections 42‐1‐420 and 42‐1‐430 referred to as “owner,” undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and Sections 42‐1‐420 to 42‐1‐450 referred to as “subcontractor”) for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this title which he would have been liable to pay if the workman had been immediately employed by him.


• Courts have traditionally applied three tests in determining whether a worker is engaged in activity that is part of the organization's trade, business, or occupation:

• (1) the activity is an important part of the organization's business or trade; • (2) the activity is a necessary, essential, and integral part of the organization's business; or

• (3) the activity has previously been performed by the organization's employees• Only one of these three tests need be met but there is no easily applied formula and each case must be decided on its own facts.

Glass v. Dow Chemical Co., 325 S.C. 198, 482 S.E.2d 49 (1997)


• In Abbott v. The Limited, Inc., 338 S.C. 161 (2000), the Supreme Court held that the mere recipient of goods delivered by a common carrier is not the statutory employer of the common carrier's employee because the delivery of goods was not integral to, or an important part of, Retailer's business.

• FOOTNOTE 1: To the extent Neese v. Michelin Tire Corp., 324 S.C. 465, 478 S.E.2d 91 (Ct.App.1996), and Hairston v. Re: Leasing, Inc., 286 S.C. 493, 334 S.E.2d 825 (Ct.App.1985), may be read to hold otherwise, they are hereby overruled.


• In Olmstead v. Shakespeare, 354 S.C. 421, 424, 581 S.E.2d 483, 485 (2003), the Court noted that Abbott represents a change in this state's jurisprudence on what activity constitutes “part of [the owner's] trade, business[,] or occupation” under section 42‐1‐400, and likely conflicts with cases other than the ones we explicitly overruled in footnote 1 of the Abbott opinion. As such, we now overrule all prior cases to the extent they are in conflict with our holding in Abbott and now in this case.

• Abbott is not limited to receipt of goods cases, but applies equally to delivery of goods cases as long as the transportation of goods is not the primary business of the company to whom or from whom goods are being delivered.


• Claimant argued that this language applies to all types of contract workers, not merely employees of common carriers, and that the circuit court in the present case correctly interpreted Olmstead as having a broad impact.

• CNA argued that argues that Olmstead and Abbott are not binding on this court because those opinions addressed statutory employment in the transportation setting whereas the present case involves maintenance.


• In Keene, the Court noted that the analysis in Abbott and Olmstead is true to the legislative intent underlying section 42‐1‐400, which seeks to determine whether the type of work performed by the worker is the same type of work “the owner” has established as its business, and its logic applies across all trades, businesses, and occupations, allowing each case to be decided on its own facts.


• Claimant's work, while important to the manufacturing process performed by Celanese employees, was not part of that process and, thus, Claimant was not a statutory employee of Celanese. Only Daniel employees performed maintenance and repairs on the equipment in the Spartanburg plant. None of the Celanese employees performed this type of work.

• Further, a Celanese employee admitted that Celanese contracted with Daniel because it was “a qualified, capable contractor that can do the expert work that [Celanese] needed done, both in construction and maintenance.” The Court noted that there was no evidence that Celanese’s corporate purpose included equipment maintenance.

• Court also noted that Daniel had responsibility for payment of WC premiums for Ees.


Takeaway• Very hard to have a coherent body of law when almost all of the cases say “there is no test – each case turns on its own facts.”

Russell v. Wal‐Mart

• Claimant injured her back in 2009 while working at Wal‐Mart • A single commissioner determined she had a 7% impairment to her back and awarded her

21 weeks of TTD payments• In 2011, Claimant alleged a change of condition • A single commissioner held a hearing in February of 2013• In August 2013, the commissioner issued an order finding Claimant had proven a change of

condition, awarding her TTD from beyond the original 21‐week period and continuing, based on Claimant’s testimony and MRI’s taken before and after the award


• An appellate panel reversed, issuing an order on January 30, 2014• The panel concluded Claimant’s testimony was self‐serving and that both physicians

treating her ultimately testified there were no objective or significant differences in the MRI’s

• Accordingly, the panel held Claimant had not proven a change of condition by a preponderance of the evidence


• Claimant appealed to the Court of Appeals, which reversed, remitting the case “to the Commission” on May 3, 2016

• The Court of Appeals held the appellate panel reversibly erred by requiring a change of condition claim to be proven by objective evidence


• On March 20, 2017, a single commissioner issued an order detailing the existing evidence in the claim and finding Claimant established a change of condition

• On September 15, 2017, the appellate panel again vacated and remanded the single commissioner’s order, directing the commissioner on remand to conduct a new evidentiary hearing

• Claimant appealed to the Court of Appeals, which dismissed as not immediately appealable

• Claimant petitioned the Supreme Court for certiorari, which was granted


• Before the Supreme Court in 2019, Claimant argued the Commission’s repeated remands created an endless cycle depriving her of an adequate remedy

• The Court agreed, first noting that a “primary goal of the Workers’ Compensation Act is to provide quick and efficient resolution of work‐related injury claims so neither employers nor employees become bogged down in complicated and protracted litigation.”

• The Court also stated that, in most cases, a single commissioner should promptly conduct a hearing, and an appellate panel should “proceed promptly make a final decision without the necessity of any remand”


• As to the case at hand, the Court held that each of the remands that occurred in the claim was unnecessary

• The Court noted that, 8 years after a commissioner found she was entitled to benefits for her change of condition, she had received none

• The Court stated that, if she was entitled to benefits, she should have received them long ago, and if not, Wal‐Mart deserved to have her claim denied long ago

• Accordingly, the Court held the unreasonable delay in a final decision left Claimant without an adequate remedy on appeal, pursuant to Section 1‐23‐380

Takeaway

• Appellate courts will not look favorably upon long‐tenured claims • Remands may be unnecessary where an appellate panel can make a final decision

based upon existing evidence

Ashford v. Prysmian Power Cables, 427 S.C. 361 (Ct. App. 2019)

• On October 30, 2013, Ashford sustained an injury to his right wrist when his right hand and wrist were caught and crushed in a machine while working for Prysmian. Ashford’s injuries resulted in a crush injury, right dorsal wound, right ulnar styloid fracture, right triangular fibrocartilage complex tear, and carpal tunnel syndrome.

• On February 16, 2015, Ashford filed a Form 50 with the WCC alleging injury to his right upper extremity, right lower extremity, right side, and a resultant psychological injury. In addition, Ashford alleged the injury resulted in a permanent disability and requested mandatory mediation

• Prysmian filed a Form 51 on March 12, 2015 admitting a compensable injury to Ashford's right wrist, but denying injuries to Ashford's right lower extremity, right side and/or psyche. Prysmian asserted mediation was not appropriate in the matter “until there is a finding regarding the compensability of the alleged body parts. If the claim is limited to a single scheduled member, mediation cannot be ordered.”

• Prysmian filed a Form 21 on April 30, 2015, requesting a hearing to stop compensation. In its Form 21, Prysmian asserted Ashford reached maximum medical improvement (MMI), requested compensation be terminated, and requested a credit for overpayment of temporary compensation.


• At the Form 21 Hearing on June 23, 2015, Prysmian objected to records from Ashford’s therapist being submitted into evidence b/c they were not timely and the therapist was not qualified as an expert on psych issues.

• Commissioner admitted the records and left the record open so the therapist could be deposed.

• Commissioner’s May 4, 2016, order found Ashford was not at MMI for the wrist injury and entitled to add’l med treatment for the wrist and continuing TTD.

• Commissioner also ordered mandatory mediation on the additional body parts and P and T allegation and said those issues not properly before the Commissioner.


• Appellate Panel issued an order on November 1, 2016, and affirmed that Ashford not at MMI for the wrist and ordered add’l treatment.

• Appellate Panel reversed the finding of continuing TTD and gave Prysmian a credit going back to May 4, 2015.

• Appellate Panel affirmed that the other issues raised in the Form 50 were not properly before the Commission


• Court of Appeals issued an opinion on June 19, 2019, and concluded that WCC must issue a final address the issue of Ashford’s other injuries and his claim for permanent disability to resolve the entire action before an appeal is appropriate.

• Prysmian’s appeal was dismissed as being interlocutory.• Regulation 67‐1804, which provides that P and T claims must be mediated prior to a hearing, states, “If the mediation is not completed within the sixty‐day timeframe, the case may be set in the normal course of the docket scheduling.” Once the sixty‐day mediation period passed, the Commission has the ability to set the case in the normal course of docket scheduling.


TakeawayDecision does not conflict with the Supreme Court's holding in Russell. In Russell, the supreme court found a remand order was immediately appealable because of the unnecessary delays and repeated remands over the eight‐year period the claimant's claim was pending. Prysmian's appeal involved issues the parties had yet to litigate, rather than repeated remands of issues litigated by the parties. The parties in this case have an adequate remedy through the review of the Commission’s decision.

Nero v. SCDOT

• As the Claimant was pulling a squeegee board to smooth concrete, a supervisor pulled him off the job because he looked like he was overheating.

• Later, in the presence of both supervisors, the Claimant passed out.• Both supervisors visited him while he was in the hospital.• Claimant later alleged injuries to his neck and shoulder.

Nero v. SCDOT

• The Claimant never formally reported his injury to SCDOT, which denied the claim for lack of notice.

• The Single Commissioner awarded benefits. Appellate Panel reversed.

Nero v. SCDOT

• Court of Appeals reversed. The fact that two supervisors witnessed the Claimant passing out and later visited him in the hospital constituted “some knowledge of accompanying facts connecting the injury or illness with the employment.”

• Because his supervisors were there when he passed out, the Claimant’s reason for not formally reporting the injury was deemed reasonable.

• Finally, the Court of Appeals held that, because SCDOT knew the Claimant did not return to work after the incident, “no prejudice can be established.”

Nero v. SCDOT

• Supreme Court reversed and remanded.• Court of Appeals used de novo standard of review when it should have used substantial evidence standard of review.

Nero v. SCDOT

• The Court of Appeals then reversed again, holding that the substantial evidence in the record did not support the appellate panel’s findings that Claimant failed to provide SCDOT with adequate notice of his workplace injury, or that SCDOT was prejudiced by the late formal notice • Although Nero never formally reported the mechanics of his injury to his employer, SCDOT had adequate notice within the statutory period

• As early as July 13, 2012 (D/A June 20, 2012), SCDOT had notice that Claimant needed neck surgery

• Nero provided a reasonable excuse for not giving formal notice because his supervisors were both present at the time of his injury and were aware of his treatment

Takeaway

• Continued trend of difficulty in proving a notice defense.• Looking at the facts of this case as the Court of Appeals saw

them, the rule is if an employer knows an injury happens on the job, notice has been given.

Tucker v. SC DOT, 427 S.C. 299 (2019)

• Case concerns the timing requirement in a claim based on a change of condition.

• 42‐17‐90(A) provides that when a party makes a claim based on a change of condition, “the review must not be made after twelve months from the date of the last payment of compensation pursuant to an award.”

• SC DOT argued that the timing requirement is dependent on a claimant requesting a hearing within the time period set forth in the subsection.

• Tucker argued that the timing requirement is satisfied upon the filing of a Form 50 to initiate the claim.

Tucker v. SC DOT, 427 S.C. 299 (2019)

• Tucker filed a Form 50 claim only within one year of last payment of compensation but didn’t request a hearing until after the one year period.

• Commission agreed w/ SC DOT and denied the claim. • Court of Appeals reversed in an unpublished opinion.• Supreme Court granted Cert and reversed and found the claim was timely.

Tucker v. SC DOT, 427 S.C. 299 (2019)

• The Court noted the possibility that “a claimant may file a Form 50 within twelve months, and then intentionally delay a hearing in the hope that evidence will later develop to support a change of condition claim. Such an improper effort should have no chance of success. However, if an employer suspects this, and the commission does nothing to move the claim toward resolution, the employer may request a hearing or in some other fashion seek to protect its interests.”

• “We recognize that our decisions in Russell and this case will change the practice of allowing claims to sit until a hearing is requested, and will require the commission to consider amending certain regulations, including 67‐207.”

Tucker v. SC DOT, 427 S.C. 299 (2019)

Takeaway• The Supreme Court wants claims to move efficiently and timely with prompt hearings on the merits.

Lemon v. Mt. Pleasant Waterworks

• Claimant injured his low back in 2012, which affected both legs, while pulling a device designed to provide leverage on a sewer line

• Claimant had previously sustained four separate workplace injuries for which he had filed claims against the defendants

• As a result of the four prior claims, he had already received 199 weeks of TTD and PTD before his 2012 injury

• He then received 122 weeks of TTD benefits for his 2012 claim


• Claimant was assigned 24% impairment to his back by one treating physician, and a 24% impairment to his lumbar spine and 7% impairments to both legs by another

• After a hearing, a commissioner determined Claimant was entitled to an award for permanent and total disability

• However, the commissioner also found defendants were entitled to a credit for 321 weeks of benefits against the maximum 500‐week award

• On appeal, the appellate panel remanded for a determination of which subsection of section 42‐9‐10 was applied in making the award; which statutes were utilized in making the prior awards; and any other necessary findings of fact and legal conclusions


• On remand, the single commissioner found Claimant was permanently and totally disabled under section 42‐9‐10(A); the prior awards were issued under section 42‐9‐30; section 42‐9‐170(B)’s provision regarding a permanent injury applied to the claim; and “another permanent injury in the same employment” referred to Claimant’s prior injuries

• The appellate panel affirmed following oral argument


• The court of appeals affirmed as to the 122‐week credit, but reversed as to the 199‐week credit• The court held section 42‐9‐170(B) addresses benefits under 42‐9‐10(B), rather than subsection (A),

by its plain language: “If an employee receives a permanent injury as specified in section 42‐9‐30 or section 42‐9‐10(B) . . . “

• The court also noted the single commissioner expressly found the award was made under section 42‐9‐10(A), and as a result, the single commissioner and appellate panel erred in applying 42‐9‐170 to award the 199‐week credit

• The court finally noted that neither the single commissioner nor the appellate panel had analyzed whether any of the four prior injuries to determine whether they were related to the 2012 injury, as well as that several of the payments credited were TTD benefits, which section 42‐9‐170(B) does not address

State of the Commission

Commissioner T. Scott Beck




Roundtable Discussion with Commissioners

Commissioner T. Scott Beck Commissioner Susan S. Barden

Commissioner R. Michael Campbell II Commissioner Melody James

Commissioner Gene McCaskill Commissioner Aisha Taylor

Commissioner Avery B. Wilkerson, Jr.




saturday, january 25

Documents