Medlin v. Greenville County , 301 S.C. 411 ( 1990 )

Cureton, Judge:

This is a workers’ compensation case. It involves successive injuries to the back by an employee while working for the same employer. The question is whether the employee is entitled to recover compensation for the second accidental injury since the first injury resulted in a recovery for total and permanent disability under S.C. Code Ann. Sections 42-9-10 and 42-9-30(19) (1976).

In 1983 James Medlin sustained an injury to his back while employed by Greenville County. He was found to have sustained more than fifty percent loss of use of his back and was awarded compensation for total and permanent disability under Sections 42-9-10 and 42-9-30(19). The parties settled the claim while on appeal for a lump sum payment of $60,000 as full satisfaction of the employer’s liability arising from the 1983 accident.

Mr. Medlin returned to work for Greenville County. He sustained a second injury to his back in 1985 while working for the County. He filed a claim for compensation seeking permanent and total disability due to the second accident. The County admitted the second accident occurred but denied Mr. Medlin was entitled to receive an award for permanent disability because of the prior award from the 1983 accident. The single commissioner agreed with the County and denied the claim for total and permanent disability. The full commission reversed the decision of the single commissioner by a 2-1 vote and held Mr. Medlin was entitled to receive an award of five hundred weeks compensation for permanent and total disability. The full commission reasoned Section 42-9-170 should be interpreted so that an employee does not receive more than five hundred weeks from any single accident. The circuit court affirmed the full commission and held the five hundred week limitation was a per accident limitation.

Under Section 42-9-30(19) an employee who sustains more than a fifty percent loss of use of the back does not have to show a loss of earning capacity under 42-9-10 to recover permanent total disability. Bateman v. Town & Country Furniture Co., 287 S.C. 158, 336 S.E. (2d) 890 (Ct. App. 1985). Once the employee has established the loss of more than fifty percent use of the back he is entitled to the award of five hundred weeks of compensation. Under Section 42-9-10 five hundred weeks is the maximum compensation period allowed unless an individual is a paraplegic, a quadraplegic, or has sustained physical brain damage.

This court has previously held the five hundred week limit does not apply to successive injuries incurred while the employee worked for different employers. Wyndham v. R.A. & E.M. Thornley and Co., 291 S.C. 496, 354 S.E. (2d) 399 (Ct. App. 1987). In Wyndham this court construed the language of Section 42-9-10 and found its ordinary meaning referred to a single injury and a single disability. However, this court also noted the distinction in Section 42-9-170 where the statute specifically limited the total compensation to five hundred weeks for successive permanent injuries sustained in the same employment. Id. at 500, 354 S.E. (2d) at 402.

The facts of Wyndham distinguish it from this case. There, the employee was only partially disabled by the first accident, which happened while he worked for a different employer. Thus, the injury in Wyndham was covered by a different statute from the one involved here. The distinction between employees who incur a partial disability followed by a permanent total disability versus those who incur successive permanent total disabilities is a distinction put there by our Legislature. It is not our prerogative to remove that distinction. See Burns v. State Farm Mut. Auto. Ins. Co., 297 S.C. 520, 377 S.E. (2d) 569 (1989) (courts should ascertain and effectuate intent of the legislature). Mr. Medlin received an award of five hundred weeks compensation from his first injury. This is the maximum award he could receive for loss of use of his back under Section 42-9-10 and Section 42-9-30(19). Under Section 42-9-170 he is limited to a recovery for successive injuries to five hundred weeks. Having received that recovery from the first injury he has no basis to recover in the second accident.

The decision of the circuit court is reversed and the case is remanded for entry of an appropriate order.

Reversed and remanded.

Gardner, J., dissents with separate opinion.