City of Greenville v. Second Injury Fund, 3115.

• Decision Date: 07 February 2000
• Docket Number: No. 3115.,3115.
• Citation: 528 S.E.2d 91,339 S.C. 141
• Court: South Carolina Court of Appeals
• Parties: CITY OF GREENVILLE, Appellant, v. SOUTH CAROLINA SECOND INJURY FUND, Respondent.

339 S.C. 141

528 S.E.2d 91

CITY OF GREENVILLE, Appellant, v. SOUTH CAROLINA SECOND INJURY FUND, Respondent.

No. 3115.

Court of Appeals of South Carolina.

Heard December 7, 1999.

Decided February 7, 2000.

Michael A. Farry and David A. Wilson, both of Horton, Drawdy, Ward & Black, of Greenville, for appellant.

Chief Counsel Brooks Shealy, of South Carolina Second Injury Fund, of Columbia, for respondent.

HUFF, Judge:

In this Worker's Compensation case, the City of Greenville (City) appeals from a circuit court order affirming the Full Commission's finding the City was not entitled to reimbursement from the Second Injury Fund for substantially increased medical or compensation expenses paid to John Gilstrap. We affirm.

FACTS

On September 27, 1991, John Gilstrap, a sergeant with the City of Greenville Police Department, fell thirty to forty feet while repelling during a department training exercise. As a result of the fall, Gilstrap sustained severe injuries including: a burst fracture at L1; a sacral fracture; a pelvic fracture; foot strain; symphysial diastasis with bladder herniating between the diastasis; and a neurogenic bladder. Gilstrap underwent emergency spinal surgery the day of the fall but the burst fracture nonetheless left him with significant paralysis from the waist down. After the fall, Gilstrap was also noted to have pre-existing arthritis of the knee and degenerative disc disease. Dr. Clark Jernigan gave Gilstrap an eightyone percent impairment rating. Because of his injuries, it is unlikely he will be able to work again. Gilstrap completed the twelfth grade and has never done any other type of work except police work. He worked for the Police Department for seventeen years prior to the accident.

PROCEDURAL HISTORY

The City of Greenville contended Gilstrap's preexisting degenerative disk disease combined with his injuries to cause substantially greater disability and medical costs than would have resulted from the injuries alone. To obtain reimbursement from the Second Injury Fund, the City filed a form 54 with the Workers' Compensation Commission. The Fund countered with a form 55 which denied the City's allegation Gilstrap's injuries and expenses were substantially increased by a preexisting impairment and simultaneously moved any hearing on the matter be delayed until Gilstrap received a Final Award or agreement for his disability.

On June 17, 1997, the Single Commissioner denied the Fund's motion to delay a determination. The Commissioner's Order concluded: 1) substantially all of Gilstrap's disability was caused by the fall rather than his preexisting condition; 2) Gilstrap is a paraplegic as a result of the fall and cannot suffer greater disability under S.C.Code Ann. Section 42-9-10 (1985) than that caused by the paraplegia; 3) the City did not meet the knowledge requirement of S.C.Code Ann. Section 42-9-400(c) (1985) regarding Gilstrap's left knee; and 4) there is no evidence Gilstrap incurred greater medical expenses due to his preexisting condition.

The Single Commissioner's findings and conclusions were affirmed in toto by the Full Appellate Panel on February 10, 1998. The circuit court also affirmed the Order of the Full Commission on July 27, 1998.

DISCUSSION

On appeal, the City argues it is entitled to reimbursement from the Second Injury Fund. The legislative purpose of the Second Injury Fund is to "encourage the employment of disabled or handicapped persons without penalizing an employer with greater liability if the employee is injured because of his preexisting condition." Liberty Mut. Ins. Co. v. South Carolina Second Injury Fund, 318 S.C. 516, 518, 458 S.E.2d 550, 551 (1995) (citing Springs Industries v. South Carolina Second Injury Fund, 296 S.C. 359, 372 S.E.2d 915 (Ct.App. 1988)).

Reimbursement from the Fund is controlled by S.C.Code Ann. Section 42-9-400 (1985) which provides in pertinent part:

(a) If an employee who has a permanent physical impairment... incurs a subsequent disability from injury by accident arising out of and in the course of his employment, resulting in compensation and medical payments liability or either, for disability that is substantially greater, by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment, than that which would have resulted from the subsequent injury alone, ... but such employer or his insurance carrier shall be reimbursed from the Second Injury Fund as created by 42-7-310 for compensation and medical benefits in the following manner:

(1) Reimbursement of all compensation benefit payments payable subsequent to those payable for the first seventy-eight weeks following the injury.

(2) Reimbursement of fifty percent of medical payments in excess of three thousand dollars during the first seventy-eight weeks following the injury and then reimbursement of all medical benefit payments payable subsequent to the first seventy-eight weeks following the injury; provided, however, in order to obtain reimbursement for medical expense during the first seventy-eight weeks following the subsequent injury, an employer or carrier must establish that his liability for medical payments is substantially greater, by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment, than that which would have resulted from the subsequent injury alone.

(Emphasis added). Additionally, section 42-9-400 contains a `knowledge' requirement which states:

(c) In order to qualify under this section for reimbursement from the Second Injury Fund, the employer must establish when claim is made for reimbursement thereunder, that the employer had knowledge of the permanent physical impairment at the time that the employee was hired, or at the time the

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