SC High Court Strikes ‘Troubling’ Denial of Comp Claim, Says Can’t Be Based on Stats

An employer cannot use an ergonomics report, showing that a work injury is statistically unlikely, to deny a workers’ compensation claim, the South Carolina Supreme Court said in an opinion that sharply questioned an appellate panel’s decision making.

“Individual cases must be decided by the facts of the case and applicable law, not statistical probabilities,” the court wrote in its April 10 opinion. “Using statistical probabilities to determine if an individual worker sustained a work-related injury would eviscerate the Grand Bargain” that the workers’ compensation system is built on.

Moreover, the justices wrote, much of order from the state Workers’ Compensation Commission’s appellate panel, which had ruled against the injured worker, “is both perplexing and troubling,” Chief Justice Donald Beatty wrote for the court.

The case involved a worker for Benore Logistics Systems, which routed shipping containers at the BMW automobile manufacturing plant in Greer, South Carolina. Great American Alliance Insurance Co., an American Financial Group company, was the comp insurance carrier for Benore.

Dale Brooks was considered an efficient driver for Benore, switching shipping ocean-going shipping containers and semi-truck containers around the yard all day long. Switchers were expected to move at least 30 containers per 12-hour shift, the court explained. Brooks was so efficient at his job that he was able to switch 45 to 60 per shift, or about once every 15 minutes or so.

The job requires switchers to move up and down stairs and move in and out of a switcher truck all day long. In 2017, Brooks said he began feeling tingling and pain in his back and legs. An emergency room doctor found degenerative disc disease and noted the repetitive nature of Brooks’ work. The employer’s approved doctor also said he believed the strain was work-related.

Just moments after the employer’s chosen physician had ordered an MRI, Benore Logistics announced that it had denied Brooks’ comp claim, the court opinion explained. Brooks then sought treatment from another doctor, who ordered an MRI, which found a disc protrusion in his vertebrae.

A workers’ compensation commissioner found in favor of Brooks. But an appellate panel, made up of the full comp commission, overturned that decision. The appellate panel/commission relied heavily on an ergonomics report that the employer had commissioned, based largely on observations of other switchers, not Brooks.

Brooks appealed to the South Carolina Court of Appeals, which reversed the comp panel’s decision in 2022. The Supreme Court this week upheld the appeals court and questioned the comp panel’s reasoning.

“For reasons we do not understand, the appellate panel concluded the single commissioner failed to make a factual finding that Brooks’ job was repetitive,” the justices wrote. Then, “the appellate panel determined the job was not repetitive, relying on what the appellate panel deemed the ‘unbiased’ ergonomics report.”

Agreeing with the appeals court ruling, the Supreme Court opinion said the ergonomics report was inadmissible in court and that the workers’ comp statute does not limit recovery to work injuries deemed “statistically likely.”

The high court and the appeals court noted that the comp panel’s line of thought required the claimant to show that his job was repetitive, despite already offering medical testimony that he had suffered a repetitive trauma injury. Brooks had actually shown that repetitiveness through his own testimony and that of treating doctors, the high court explained.

Claimants merely need to show, through lay testimony or otherwise, that their jobs involve a “series of events . . . occurring regularly, continuously, or at frequent intervals … over extended periods of time,” the law reads.

“It should be a rare case in which a claimant struggles to satisfy his burden to prove his job was repetitive; frankly, many jobs are,” the justices wrote.

The case now goes back to the appellate panel to calculate the benefits due to the worker. As of 2022, South Carolina law allows injured workers two-thirds of their average weekly wage, up to $963 for temporary total disability, for a maximum of 500 weeks, according to the Workers’ Compensation Research Institute.

That maximum is significantly more than what Georgia law provides, but less than North Carolina’s.

South Carolina workers’ comp attorney Katharine Phipps blogged after the appeals court decision in 2022 that the ruling will clear up some questions on when a claimant needs to obtain his or her own often-expensive ergonomics report, and will make it a little easier for claimants to show repetitive injuries.

“There will be no need for claimants to obtain an ergonomics report, as long as they can accurately explain their duties to a doctor who is willing to give a causation opinion,” wrote Phipps, a former comp defense lawyer. “If the defense does obtain an evaluation, claimants can simply show it to their own medical provider for the supporting opinion they will need, as Brooks did here.”

This is not the first time that the South Carolina high court has criticized actions by a Workers’ Compensation Commission member. In 2019, the justices said they were deeply concerned by the conduct of then-Commissioner Susan Barden. Barden had filed false information in court proceedings, threatened a claimant with prosecution if he didn’t settle, then refused to recuse herself from the case, the court noted in Ledford vs. Department of Public Safety.

Barden left the commission in 2022.