Clemmons v Lowes Home Centers Inc Harbison A

Clemmons v. Lowe’s Home Centers, Inc. -Harbison A LESSON IN JUDICIAL FACT-FINDING?

Factual Background Claimant, who worked as a cashier for Lowe’s, slipped and fell on his back while loading pine straw. He received medical treatment, including a cervical fusion at C 5 -6, C 6 -7. He was released at MMI by Dr. Drye, assigned a 25% impairment rating to the whole person based on the cervical spine, and returned to work for Lowe’s in the same cashier position. For nearly 2 years, he worked 8 -hour days, 40 hours a week, without requesting accommodation, missing time or seeking additional medical treatment or any pain medication.

The Claim �Claimant sought TPD under both Sections 42 -9 -30(21) and, alternatively, 42 -9 -10 (arguing multiple body parts) �Framed the issue under Section 42 -9 -30(21) as “loss of the functional use of the worker’s back to do work requiring the use of the worker’s back…”

Impairment Evidence Submitted to the Commission Employer � Dr. Drye: Assigned to DRE cervical Cat 4 resulting in a 25% whole person impairment based on injury to cervical spine, AMA Guides 5 th Ed. � No conversion to whole back or region of the spine � Same rating when reexamined a year later Claimant (I. M. E’s) � Tracy Hill, P. T. = whole person 28% impairment, converted to 80% cervical spine impairment + whole person of 8% converted to 11% lumbar spine impairment � Dr. Forrest = loss of function of the back “would be over 50% loss of his functional capabilities” � Dr. Margalit = claimant “lost more than 50% of the functional capacity of his back to work with his back” � Dr. Mandell - neurological

Work Restrictions/Evaluations Employer Claimant �Dr. Drye: Permanent � Dr. Forrest: agreed with Dr. restrictions no standing/walking more than an hour w/o ability to sit, no repetitive overhead reaching, lift 30 lbs only occasionally Drye’s work restrictions, opining “customer service and/or cashier work … would be best” � Fowler, Voc. Rehab: loss of 99. 94% of access to sedentary to very heavy unskilled/semi-skilled jobs; but only loss of 76% of access if he performs light or sedentary jobs

The Hearing �Employer Rep testified that Claimant was a valued employee, never missed time, never asked for special accommodation �A chair was provided for Claimant to sit in but he never asked to use it �He could ask for lifting assistance from other employees – this same assistance is available to any other cashier/employee �Claimant testified that he thought he had lost 80% of the use of his back, and that he didn’t know of any other jobs he could do (even though he had worked as a cashier at a service station prior to Lowe’s)

Single Commissioner Decision (Williams) Ø Dr. Drye’s medical reports and conclusions are the most persuasive Ø Claimant sustained a 48% PPD to his back Ø Claimant is not TPD based on all the evidence, including working for 2 years with accommodations, no prescription pain meds, and Dr. Drye’s reports and opinions

Single Commissioner Decision (cont. ) Ø Claimant “returned to work full duty with the employer for almost two years” Ø “the employer has accommodated him if needed, ” but Ø “Claimant has not made any complaints to the employer nor asked for additional medical treatment. ”

Appeal to the Full Commission Claimant argued the Single Commissioner erred by: � Placing greater weight on Dr. Drye’s reports than his IME’s � Considering wage loss in the determination made under Section 42 -9 -30(21) � Relying on Dr. Drye’s rating because it “was performed under the AMA Guidelines which state that the impairments in the Guides are in reference to the ability to perform the activities of daily living (ADLs) and have nothing with the ability to do work or perform work activities, can an impairment estimate under those Guides constitute the basis for an Award for loss of use under SC Code 42 -9 -30 …? ” � Not relying on Claimant's experts, who were the only ones who opined the degree to which he had “lost the functional use of his back to do work requiring the use of his back”

Full Commission Decision (James, Barden, Beck) Affirmed the Single Commissioner Decision in its entirety

Claimant’s Brief to the Court of Appeals Repeated his argument that only his medical experts opined as to the degree of loss of use of the back: Ø “Two medical doctors that evaluated him stated the opinion in reference to the functional loss of use of the back that he has to do work requiring the use of his back that in their opinion he had lost 50% or greater of the use of his back to do work requiring the use of his back, ” and, therefore, substantial evidence supported only a finding that he lost 50% or greater loss of use of his back. Ø Again attacked the Commission’s finding that Dr. Drye’s medical reports are the most persuasive

Oral Argument Court of Appeals Claimant’s counsel opened his remarks by saying, “You know, this argument just occurred to me last night …” and for the first time argued Dr. Drye’s 25% whole person rating converted to a much higher rating.

Court of Appeals Decision Ø Noted that determining an impairment rating is more “art than science, ” and the Commission is not bound by medical experts Ø Held the Commission’s 48% PPD award is supported by Dr. Drye’s 25% whole person rating based on the cervical spine injury Ø Rejected Claimant's argument that only medical opinions expressed in terms of “loss of use” were probative. Ø Upheld the Commission’s determination that Claimant failed to show he was TPD under Section 42 -9 -10, as he had returned to work for 2 years.

Rehearing at the Court of Appeals Claimant argued: �The Commission and Court had improperly “infused” wage loss into a scheduled member determination �For the first time, noted “Dr. Drye’s rating was 25% to the ‘whole person’ [which] converts to a 71% rating to the cervical spine, ” BUT this was part of argument that Drye should have given Claimant a separate rating for his myelopathy and low back

Cert Petition �Continued to argue that only his experts opined as to the degree of “loss of use” and there is no contrary evidence on “loss of use” �Footnote: “Under the AMA Guides 5 th Edition, a whole person impairment of the cervical spine converts to 71% as a spinal rating. ” �Dismissed Dr. Drye’s impairment rating under the AMA Guides because it addresses ADLs, not the “loss of use of the back” and then says, “Also a 25% WP rating is 71% to the cervical spine”

Brief to the Supreme Court Claimant argued: �the sole issue before the Commission was “functional loss of use” �the loss of use award was “based on a cervical spine whole person AMA medical impairment rating of 25% (71% to the back)” �the presumption was rebutted solely on the fact that Claimant was working

Clemmons v. Lowe’s at the Supreme Court The Supreme court reversed the Commission and the Court of Appeals: Ø Framing the overall issue as , “Whether a claimant’s ability to work can affect his entitlement to disability benefits under the scheduled-member statute? ”

Supreme Court (Conversion) Ø Converted Dr. Drye’s 25% whole person rating based on the cervical spine injury to a regional spine rating of 71%, which the Court equated to a greater than 50% loss of use of the back Ø Ø Ø Non-Record Evidence Argument not preserved for appeal WCA awards are to the back not to a region of the spine Ø Held as a matter of law that Claimant lost more than 50% of the use of his back, triggering the presumption of TPD Ø There was a “consensus among all the medical experts” as to his loss of use

Supreme Court (Rebuttal under 42 -9 -30(21)) Ø Overturned Watson v. Xtra Mile: not only the ability to return to work but an actual return to work alone is insufficient to rebut the presumption Ø The claimant’s work duties “were significantly reduced in light of his condition” and he returned to a “less demanding position” Ø Dr. Drye’s medical records were the only other “relevant evidence” aside from his return to work Ø Refused to remand despite overturning Watson

S. C. Supreme Court Opinion No. 27708 Legal Issues/Conclusions �Conversions of whole person ratings to regional spine ratings = “loss of use” of the back �“The mere fact that a claimant continues to work” is insufficient to overcome the presumption of TPD �Whether the Court will consider only medical evidence (“aside from Clemmons’ return to work, the only other relevant evidence … was Dr. Drye’s reports …”)? �Engaged in judicial fact finding based on evidence not in the record and on arguments not preserved for appeal

Supreme Court (Justifications) LEGAL JUSTIFICATION “Separating wage loss from the analysis in establishing the presumption, only to allow earning capacity to come in after the fact and conclusively rebut it, renders the presumption meaningless. ” POLICY JUSTIFICATION “As a policy matter, to allow a claimant’s ability to work to rebut the presumption of total and permanent disability would have the undesirable effect of discouraging claimants from returning to the workforce. ”

Implications of the Clemmons ruling v. The Court feels justified in making its own medical conversion/findings of fact – even though: 1) the conversion speaks to a region of the spine and not the whole back, v 2) is based on an unpreserved argument, and v 3) is based on evidence not in the Record v v. The Court failed to articulate what evidence would be sufficient to rebut the presumption under Section 42 -9 -30(21)