Smith v. South Carolina Dept. of Mental Health

• Decision Date: 08 October 1997
• Docket Number: No. 2755,2755
• Parties: Alphonso SMITH, Claimant, Appellant, v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH, Employer, and State Workers' Compensation Fund, Insurer, Respondents. . Heard
• Court: South Carolina Court of Appeals

Page 630

494 S.E.2d 630

329 S.C. 485

Alphonso SMITH, Claimant, Appellant, v. SOUTH CAROLINA DEPARTMENT OF MENTAL HEALTH, Employer, and State Workers' Compensation Fund, Insurer, Respondents.

No. 2755.

Court of Appeals of South Carolina.

Heard Oct. 8, 1997

Decided Nov. 24, 1997.

Rehearing Denied Jan. 22, 1998.

Certiorari Granted Oct. 10, 1998.

Preston F. McDaniel, Columbia, for appellant.

Ajerenal Danley, and Rose Mary McGregor, Columbia, for respondents.

HOWELL, Chief Judge:

Alphonso Smith appeals from the circuit court's affirmance of the decision of the Workers' Compensation Commission finding that he suffered a 12% permanent disability to his spine and allowing his employer, the South Carolina Department of Mental Health (DMH), to stop payment of his temporary benefits. We affirm in part, reverse in part, and remand.

I.

In 1975, when he was still in high school, Smith was categorized as "educable retarded," with a full scale I.Q. of 64. The record, however, reveals that Smith giggled and flirted with the examiner during the tests, and that Smith seemed to think that taking tests was a game. Accordingly, the examiner believed that "[t]he results of the tests are probably a minimal estimate of the boy's abilities, but at the same time reflect how he functions in the classroom." The testing indicated that Smith read at a third-grade level, and that he recognized only a few simple words.

Smith, who was 35 years old at the time of the hearing before the single commissioner, began working for DMH in 1977. Smith initially was a "trades worker" for DMH, which involved manual labor, primarily heavy construction work.

Smith injured his back at work in May and July of 1989. From the date of these injuries through early 1992, ¹ Smith was in and out of work, and was released by various doctors at various times as being capable of performing his regular work duties or as being capable of performing only light-duty work.

Smith was treated by Dr. Bell in the summer of 1989. In July, Dr. Bell concluded that Smith was physically able to return to work. In August 1989, Smith was examined by Dr. Bethea, who released him for work, finding that he suffered no impairment of his spine and that he could return to full duty. Both Dr. Bethea and Dr. Bell believed that Smith's subjective complaints were out of line with the objective findings.

In 1990, the South Carolina Vocational Rehabilitation Department (VRD) performed a functional vocational evaluation of Smith. In the evaluation, VRD recommended that, because of his back injuries, Smith should avoid, inter alia, excessive climbing, stooping, bending, carrying, and lifting. On a scale of one to six, VRD rated Smith's general education development levels as very low, giving him a score of two in reasoning and math, and a score of one in language. VRD reported that Smith had "limited reasoning, academic, and intellectual skills," and that his inability to read "may hinder employability." VRD also noted that Smith had no work experience other than construction and building maintenance. Nonetheless, VRD found Smith's vocational prognosis to be favorable, given his good mechanical and maintenance skills.

In January 1991, Dr. Weston reported that Smith had reached maximum medical improvement and that he suffered a 3% impairment to his spine. Dr. Weston performed a functional capacities evaluation of Smith, and concluded that Smith should have assistance lifting more than 25 pounds, but that he could occasionally lift 25 to 60 pounds. Dr. Weston also found that, in a given work day, Smith was limited in the length of time he could sit, stand or walk continuously, and that Smith could only occasionally bend, squat, climb or reach.

In October 1991, Dr. Oliver found that Smith had reached maximum medical improvement and that he suffered a 5% permanent partial impairment to his spine.

In April 1992, Smith began working four hours a day as a "trades helper." DMH created the trades helper position for Smith as part of an agreement Smith and DMH entered into in settlement of DMH's 1991 application to stop payment of the temporary benefits it had been paying Smith as a result of his 1989 injuries.

On August 25, 1992, while working as a trades helper, Smith injured his back a third time when his leg gave way and he fell into a ditch. After Smith's 1992 injury, Dr. Pakalnis found that Smith had reached maximum medical improvement and sustained a 4% permanent impairment to his spine. Based on the impairment to his spine, she restricted Smith to carrying no more than 28 pounds, pushing no more than 21 pounds, and pulling no more than 15 pounds.

Smith never returned to work after the 1992 injury. There is some dispute as to whether there is a position for Smith at DMH that he is qualified to perform, given his medical restrictions and physical limitations.

At a hearing held in March 1993, DMH sought to terminate its payment to Smith of temporary partial disability benefits on the ground that Smith had reached maximum medical improvement. Smith argued that DMH was not entitled to stop payment of his benefits because it had not shown that a suitable job was available for Smith. He also argued that he had not reached maximum medical improvement, or, alternatively, that in light of his work history and his mental and physical limitations, his back injury rendered him totally and permanently disabled.

On August 19, 1993, the single commissioner issued an order finding that Smith had reached maximum medical improvement and that DMH was entitled to stop payment of Smith's temporary partial disability payments. The single commissioner determined that Smith had suffered a 35% permanent disability to his back. Smith appealed to the full Workers' Compensation Commission. The Commission reduced the percentage of disability to Smith's back from 35% to 12%, but otherwise affirmed the findings of the single commissioner. The circuit court affirmed the Commission's order.

II.

On appeal, Smith argues that DMH should not have been allowed to proceed on its stop-payment application because DMH had not complied with the statutory and regulatory requirements of the Workers' Compensation Act (the Act). We disagree.

In accordance with the mandate of S.C.Code Ann. § 42-9-260, ² regulations 67-504 and 67-507 set forth the procedure for suspending or terminating workers' compensation benefits. Regulation 67-504 provides, in part:

A. An employer's representative shall neither reduce, suspend, nor terminate temporary total or temporary partial compensation benefits except as provided in this regulation or R. 67-507.

B. Disability is presumed to continue until the employee is able to return to work without restriction for fifteen calendar days or fifteen calendar days from the date the claimant agrees he or she was able to return to work.

C. When the claimant reaches maximum medical improvement and the authorized health care provider reports the claimant is able to return to work without restriction to the same job or other suitable job, and such a job is provided by the employer, or the claimant agrees he or she is able to return to work without restriction, the employer's representative may suspend compensation benefits by complying with section D below.

D. Prepare a Form 17, Receipt for Compensation, and, if all compensation payments are current, the employer's representative may:

(1) Suspend temporary compensation benefits during the fifteen day period in subsection D(2) below; and

(2) Submit the Form 17 to the claimant for his or her signature after the claimant has returned to work without restriction for fifteen calendar days or fifteen calendar days from the date the claimant agreed he or she was able to return to work without restriction.

(3) When the claimant signs the Form 17, compensation benefits may be terminated by filing with the Commission's Claims Department the signed Form 17 no later than thirty-one days from the date the claimant returned to work or agreed he or she was able to return to work. Failure to file a Form 17 within thirty-one days from the date the claimant returned to work or agreed he or she was able to return to work may result in an assessment of a fine against the employer's representative.

E. If the claimant completes fifteen calendar days of work but refuses to sign a Form 17, the employer's representative may file a Form 21 according to R. 67-507E.

. . . . .

25A S.C.Code Ann.Regs. 67-504 (1990 & Supp.1996).

Focusing on the language of 67-504(C), Smith argues that temporary benefits cannot be terminated unless the employee is able to return to work without restriction and the employer provides a suitable job for the employee. Accordingly, because Smith had not been released to return to work without restriction and because DMH did not provide him with a suitable job, Smith contends DMH should not have been allowed to terminate his temporary benefits. We disagree.

A review of Regulation 67-504 in its entirety makes clear that the regulation governs the voluntary suspension and termination of benefits in situations where the employee returns to work without restriction or agrees that he is capable of returning to work without restriction. 25A S.C.Code Ann.Regs. 67-504(C) & (D)(3); see also Sarah Ellis McKay, Note, The Proper Procedure for Suspending and Terminating Temporary Total Benefits, 48 S.C.L.Rev. 235 (1996). Smith, however, was never capable of returning to work without restriction, nor did he ever agree he could return to work without restriction; thus, Regulation 67-504 simply is not applicable to this case.

Instead, the termination of Smith's benefits must be governed by Regulation 67-507 which sets forth the procedure for involuntary termination of workers' compensation benefits. Regulation 67-507 provides, in pertinent part:

A. The employer's representative shall neither reduce, suspend, nor terminate temporary total or temporary...