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Appeals court rules injured worker permanently disabled by back injury

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Appeals court rules injured worker permanently disabled by back injury

The South Carolina Court of Appeals overturned a finding that an injured worker was not totally and permanently disabled and that his disability was primarily the result of his lung cancer and not his work-related back injury by in a 2-1 ruling.

James Dent was employed by the East Richland County Public Service District as a sewer line maintenance foreman and sustained a lower back injury in the course of his employment while attempting to move a manhole cover in May 2012, according to the decision in James Dent v. East Richland County Public Service District and State Accident Fund published Wednesday.

In September 2013, Mr. Dent filed paperwork alleging he was permanently and totally disabled as a result of his work accident after suffering compensable injuries to his back, right leg and left leg, according to court documents. The district and the State Accident Fund filed a response that admitted to an injury to Mr. Dent’s back but denied any injury to his legs, according to court documents.

Mr. Dent argued he was entitled to permanent total disability due to either loss of earning capacity or a 50% or more loss of use of the back. He testified his lower back pain rates as an 8 out of 10 and radiates down his right — and sometimes, left — leg and that he had numbness and weakness in his right leg and difficulty sitting and standing for long periods of time. According to Mr. Dent, the physical therapy and steroid injections he was prescribed did not provide him with any lasting pain relief. He also said he has been employed as a heavy laborer his entire working career and did not believe he could return to the type of work he previously performed, according to court documents.

But the district and the State Accident Fund argued that Mr. Dent only sustained an injury to his back as a result of his work accident and was not totally and permanently disabled and that he could perform work within restrictions placed by his medical treatment providers. They also argued that Mr. Dent’s lung cancer was a disabling factor that eclipsed his back injury.

A commissioner of the South Carolina Workers’ Compensation Commission determined that Mr. Dent was not totally and permanently disabled as a result of his back injury — a decision affirmed by the commission’s appellate panel in July 2015.

But two appeals court judges on a three-judge panel agreed that the appellate panel erred in failing to find permanent total disability after determining that Mr. Dent presented sufficient evidence to support his claims that his back injury caused additional injury or impairment to his leg. The appeals court also found substantial evidence that Mr. Dent is permanently and totally disabled due to an incapacity for work.

“Dent’s entire work history consists of heavy labor including sewer line maintenance, furniture delivery and glass and vending machine installation,” the judges said. “All of the experts in the record agree Dent cannot return to his previous employment or any heavy labor job.”

The two appeals court judges also rejected the appellate panel’s finding that Mr. Dent’s disability was primarily the result of his lung cancer.

“Specifically, Dent contends the appellate panel’s finding is based on speculation and not supported by substantial evidence in the record,” the judges said. “We agree.”

But one appellate judge dissented after finding that the appeals court was constrained by its standard of review to affirm the appellate panel’s finding that Mr. Dent was not permanently and totally disabled after it based its decision on a treating physician’s recommendation that Mr. Dent could perform medium-duty work and assignment of a 10% impairment rating to Mr. Dent’s back. The appellate panel considered a vocational report and a report from another physician that both suggested Mr. Dent could not perform medium-duty work but gave greater weight to the physician who recommended medium-duty work, according to the judge’s dissent.

“Under the circumstances of this case, we are constrained to affirm because our standard of review requires us to determine only whether substantial evidence supports the appellate panel’s decision,” the judge said.

An attorney for Mr. Dent could not be immediately reached for comment, while an attorney for the State Accident Fund declined to comment due to the ongoing legal matter.

 

 

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