Wigfall v. Tideland Utilities, Inc.

Decision Date14 April 2003
Docket NumberNo. 25628.,25628.
Citation580 S.E.2d 100,354 S.C. 100
CourtSouth Carolina Supreme Court
PartiesAlfred Lee WIGFALL, Employee, Claimant, Appellant, v. TIDELAND UTILITIES, INC., Employer, and Northern Insurance Company of New York, Respondents.

David T. Pearlman and James K. Holmes, both of The Steinberg Law Firm, LLP, of Charleston; for Appellant.

C. Jo Anne Wessinger and Steven W. Hamm, both of Richardson, Plowden, Carpenter & Robinson, PA, of Columbia; for Respondents.

Justice BURNETT.

Alfred Lee Wigfall ("Wigfall") appeals the decision of the Workers' Compensation Commission ("Commission") limiting his disability to a scheduled member in lieu of awarding him permanent, total disability. The Court of Appeals transferred Wigfall's direct appeal to this Court because he seeks to overturn Singleton v. Young Lumber Company, 236 S.C. 454, 114 S.E.2d 837 (1960). We decline to overturn Singleton and affirm the Commission's order.

FACTS

Wigfall sustained a broken left femur in a work related accident. Commission concluded Wigfall suffered a 90% permanent partial disability to his leg. Wigfall's sole physical injury is to that leg. The single commissioner concluded Wigfall's injury, employment history, age and educational attainment rendered him totally disabled. However, the single commissioner denied Wigfall benefits of total disability, relying on Singleton, supra.

The single commissioner ordered Wigfall be compensated for a single, scheduled injury pursuant to S.C.Code Ann. § 42-9-30(15) (1976). The full Commission and circuit court affirmed the Order.

ISSUES
I. Does the exclusive remedy rule violate the Equal Protection Clause of the Constitution?
II. Does the term "impairment," as used in Singleton, include both wage loss and medical considerations?
III. Should Singleton's exclusive remedy rule be overruled?
I

Equal Protection Clause

Initially, Wigfall argues the exclusive remedy rule violates the Equal Protection Clause.1 Wigfall raised the issue for the first time before the circuit court. The circuit court did not rule on the issue and Wigfall failed to seek consideration of the issue pursuant to Rule 59, SCRCP. Therefore the issue is not preserved for appellate review. Talley v. South Carolina Higher Educ. Tuition Grants Comm., 289 S.C. 483, 347 S.E.2d 99 (1986); see also Schurlknight v. City of North Charleston, 345 S.C. 45, 545 S.E.2d 833 (Ct.App.2001)

(workers' compensation case).

II

"Impairment"

Wigfall asserts we should interpret the term "impairment" as used in Singleton to include both medical and wage loss considerations. Therefore, Wigfall asserts he would be totally disabled under the Singleton standard if he demonstrates his scheduled loss was accompanied by a loss in earning capacity. We disagree.

The Singleton Court held:

Where the injury is confined to the scheduled member, and there is no impairment of any other part of the body because of such injury, the employee is limited to the scheduled compensation, even though other considerations such as age, lack of training, or other conditions peculiar to the individual, effect a total or partial industrial incapacity. To obtain compensation in addition to that scheduled for the injured member, claimant must show that some other part of his body is affected.

Singleton, 236 S.C. at 471, 114 S.E.2d at 845 (emphasis added).

The Singleton Court did not intend for the additional "impairment" to be a loss of earning capacity, age, lack of training or any other economic factor. The Singleton Court intended "impairment" to encompass a physical deficiency. Wigfall's argument is without merit.

III Singleton

Two competing models of workers' compensation are of concern in resolving this matter. The first, the economic model, defines disability and incapacity in terms of the claimant's loss of earning capacity as a result of the injury. The second, the medical model, provides awards for disability based upon degrees of medical impairment to specified body parts. Stephenson v. Rice Serv.'s, Inc., 323 S.C. 113, 473 S.E.2d 699 (1996); Dunmore v. Brooks Veneer Co., 248 S.C. 326, 149 S.E.2d 766 (1966) (in cases of scheduled losses the compensation depends on the character of the injury (the medical model), and not the loss of earning capacity (the economic model)); Jewell v. R.B. Pond Co., 198 S.C. 86, 15 S.E.2d 684 (1941) (Act has two purposes: 1) to compensate for loss of injured employee's earning capacity; 2) to indemnify for physical ailments in a class of cases legislatively specified).2 The two models are distinct in parts of the S.C. Workers' Compensation Act and intertwined in other parts. South Carolina provides three methods to obtain disability compensation: 1) total disability under S.C.Code Ann. § 42-9-10; 2) partial disability under S.C.Code Ann. § 42-9-20;3and 3) scheduled disability under S.C.Code Ann. § 42-9-30. The first two methods are premised on the economic model, in most instances, while the third method conclusively relies upon the medical model with its presumption of lost earning capacity.

A. S.C.Code Ann. § 42-9-10.

A claimant may obtain total disability in one of three ways under § 42-9-10.

First, a claimant may be presumptively totally disabled. As such, a claimant must show a physical injury enumerated in § 42-9-10.4 However, because the Legislature has categorized certain types of injuries as per se totally disabling, the claimant need not show a loss of earning capacity. The loss of earning capacity is, like a scheduled loss in § 42-9-30, conclusively presumed. Therefore, even in a category in which the earning capacity serves as a benchmark for disability, the Legislature has determined that certain injuries equal a permanent disability without the need to consider earning capacity. See Larson's Workers' Compensation Law, § 83.08 at 83-20.

Second, a claimant may establish total disability under § 42-9-10 by showing an injury, which is not a § 42-9-30 scheduled injury, caused sufficient loss of earning capacity to render him totally disabled. An example of such a claim occurred in Coleman v. Quality Concrete Prod.'s, Inc., 245 S.C. 625, 142 S.E.2d 43 (1965), where a claimant experienced a double hernia after being injured while at work. The claimant established the double hernia, coupled with a lack of education or adequate job training, made him unable to find comparable, stable employment. The injury, combined with those other factors, diminished his earning capacity to such an extent as to entitle him to total disability.

Third, a claimant may establish total disability through multiple physical injuries. Under this scenario a claimant who has a § 42-9-30 scheduled injury must show an additional injury. Singleton, supra; see also McCollum v. Singer Co.,

300 S.C. 103, 386 S.E.2d 471 (Ct.App.1989) (Court found claimant totally disabled due to combined partial impairments to the back, stomach and leg).

In Singleton, claimant's recovery was premised on the theory that an injury to a scheduled body part combined with a loss of earning capacity equaled total disability. Neither party disputed that Singleton's lone physical injury was to his leg. However, a physician testified Singleton's injury prevented him from working in the job for which he was trained. This Court disagreed with Singleton's theory finding a claimant with a scheduled loss unaccompanied by any other physical injury was entitled only to the benefits of the scheduled loss in § 42-9-30 and not total disability under § 42-9-10.5

Singleton stands for the exclusive rule that a claimant with one scheduled injury is limited to the recovery under § 42-9-30 alone. The case also stands for the rule that an individual is not limited to scheduled benefits under § 42-9-30 if he can show additional injuries beyond a lone scheduled injury. This principle recognizes "the common-sense fact that, when two or more scheduled injuries [or a scheduled and non-scheduled injury] occur together, the disabling effect may be far greater than the arithmetical total of the schedule allowances added together." Larson's Workers' Compensation Law, 87.05 at 87-8; see, e.g., Cunnyngham v. Donovan, 271 F.Supp. 508 (E.D.La.1967)

; Williams v. Industrial Comm'n, 73 Ariz. 57, 237 P.2d 471 (1951).

B. S.C.Code Ann. § 42-9-30

A claimant may obtain disability for a scheduled physical injury included in S.C.Code Ann. § 42-9-30 (1976). The claimant is not required to show lost earning capacity because the compensation is based on the character of the injury and lost earning capacity is conclusively presumed. Fields v. Owens Corning Fiberglas, 301 S.C. 554, 393 S.E.2d 172 (1990); Larson's Workers' Compensation Law, § 86.02 at 86-5 (1999). As discussed previously, under Singleton a claimant with a single scheduled injury may only obtain a scheduled recovery.

Wigfall seeks to limit Singleton by establishing a fourth way to obtain total disability by allowing a claimant to be totally disabled if he can prove a scheduled injury caused sufficient lost earning capacity. Under this theory Wigfall must show a physical injury within the scheduled injuries of § 42-9-30. He must also show the physical injury has caused him to lose his earning capacity, thereby rendering him totally disabled.

Wigfall asserts developments since Singleton buttress his argument. For example, Wigfall points to the Singleton court's citation to 2 Schneider's Workmen's Compensation, § 2322 at 567 for the proposition that:

[A] workman sustaining one of the minor injuries for which specific compensation is provided under the statute might, because of such injury, be unable to resume his employment and, because of his lack of education or experience or physical strength or ability, might be unable to obtain other employment, does not entitle him to be classed as totally and permanently disabled.

Singleton, 236 S.C. at 470, 114 S.E.2d at 845.

Wigfall...

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