B. Indemnity (or "wage Loss") Benefits

• Library: South Carolina Damages (SCBar) (2009 Ed.)

B. Indemnity (or "Wage Loss") Benefits

Under the Act, "[t]he term 'compensation' means the money allowance payable to an employee or to his dependents . and includes funeral benefits."⁸ Compensation is payable for "disability," which "means incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment."⁹ Because one of the Act's purposes is to compensate injured employees for their loss of earning capacity, disability compensation is a function of the employee's "average weekly wages."¹⁰ Accordingly, intangible damages such as pain and suffering are not a component of "disability" under the Act.¹¹

The Act classifies disability in two ways: (1) degree and (2) duration. With respect to degree, disability is either total or partial. With respect to duration, disability is either temporary or permanent. Cross-referenced, these classifications imply the following categories of disability:

1. Temporary total disability

The phrase "temporary total disability" is generally accepted to mean the periodic compensation payments that the employee receives until reaching maximum medical improvement:

When the incapacity for work resulting from an injury is total, the employer shall pay, or cause to be paid., to the injured employee during the total disability a weekly compensation equal to sixty-six and two-thirds percent of his average weekly wages. In no case may the period covered by the compensation exceed five hundred weeks except [in cases of paraplegia, quadriplegia, or physical brain damage].¹²

The plain language of this section, however, does not provide compensation for "temporary total disability," but only for "total disability."¹³ The absence of the word "temporary" in the statute appears to be intentional, given the allowance of lifetime compensation for certain types of injuries under section 42-9-10. Such compensation is certainly not "temporary" in any sense of the word. In South Carolina, the employee's entitlement to total disability compensation under section 42-9-10 ends once the employee reaches maximum medical improvement.

In other jurisdictions where the concept of maximum medical improvement is less significant as it is in South Carolina, the missing word "temporary" carries some import. In North Carolina, for example, maximum medical improvement marks only the first—but not necessarily the last—date on which the employee can elect to receive permanent partial disability benefits under that state's equivalent of South Carolina's section 42-9-30.¹⁴ In Whitley v. Columbia Lumber Manufacturing Co.,¹⁵ the North Carolina Supreme Court held that injured employee may elect to receive total disability compensation or scheduled injury compensation, whichever one is more favorable to the injured employee. Once an employee satisfies the initial burden of proving disability, the disability is presumed to continue until the employer shows that the employee is capable of returning to suitable employment.¹⁶Until this happens, however, the characterization of the employee's disability as "temporary" or "permanent" is premature.

Until the South Carolina appellate courts question the assumption that the entitlement to total disability compensation ends at maximum medical improvement,¹⁷ the date of maximum medical improvement marks the end of the employee's right to total disability compensation.¹⁸ Certainly, the courts allow an election between benefits under 42-9-30 for scheduled disability and 42-9-20 for general disability,¹⁹ and to extend this election between scheduled disability and general disability under section 42-9-10 only seems to promote the fundamental purpose of the Workers' Compensation Act to correlate the employee's disability compensation with his actual wage loss,²⁰ as opposed to merely presuming that the employee's wage loss will continue for a predetermined period. Indeed, Professor Larson calls this the "modern trend."²¹

DURATION

Degree	Temporary	Permanent
Partial	Temporary partial disability ("TPD")	Permanent partial disability ("PPD")
Total	Temporary Total disability ("TTD")	Permanent total disability ("PTD")

2. Temporary partial disability

Temporary partial disability is paid when employees return to work following a disabling injury, but at wages less than their pre-injury average weekly wages:

when the incapacity for work resulting is partial, the employer shall pay, or cause to be paid to the injured employee during such disability a weekly compensation equal to sixty-six and two-thirds percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter . . . . In no case shall the period covered by such compensation be greater than three hundred forty weeks from the date of injury. In case the partial disability begins after a period of total disability, the latter period shall not be deducted from a maximum period allowed in this section for partial disability.²²

An employee can elect to receive compensation under either this section or section 42-9-30, depending on which is more favorable.²³

3. Permanent partial disability compensation

"Permanent partial disability" compensation is another term for scheduled disability compensation under section 42-9-30. Under this schedule and the regulations implementing section 42-9-30,²⁴ different durations of compensation are assigned for the body parts listed. By multiplying (1) the number of weeks in the schedule by (2) the employee's compensation rate and then again by (3) the percentage of disability assigned by the Commission, one can derive the amount of scheduled disability compensation payable to the employee. This compensation represents presumptive disability and is therefore payable regardless of whether the employee can actually earn wages or not.²⁵

When an employee's injury is restricted to a single member in the scheduled injury statute and the employee reaches maximum medical improvement, the employee's right to total disability compensation under section 42-9-10 ordinarily terminates and the right to permanent partial disability compensation under section 42-9-30 accrues.²⁶ "Maximum medical improvement is a term used to indicate that a person has reached such a plateau that in the physician's opinion there is no further medical care or treatment which will lessen the degree of impairment."²⁷ On the other hand, when the impairment extends to more than one scheduled member, the employee can elect to receive general disability compensation under section 42-9-10.²⁸

"Impairment" is not synonymous with "disability" under the Act. Impairment is a medical issue regarding loss of use, whereas disability is a legal issue regarding loss of earning capacity.²⁹

4. Permanent total disability

There are two kinds of permanent total disability in South Carolina: (1) presumptive and (2) de facto. The Act presumes permanent total disability when there is "loss of both hands, arms, feet, legs, or vision in both eyes, or any two thereof . "³⁰ Permanent and total disability is also presumed when the employee suffers at least a 50% loss to the back.³¹ Permanent and total disability entitles the employee to 500 weeks of benefits under section 42-9-10, unless the employee has paraplegia, quadriplegia, or a physical brain damage, in which case the employee's compensation is not limited to the 500-week duration.

5. Death benefits

If an employee dies as the result of an injury by accident that arises out of and in the course of employment, the employee's dependents and next of kin are entitled to compensation during the 500 weeks following the date of injury plus burial expenses not exceeding $2,500.00.³² If the death results from non-injury related reasons, the dependents are entitled only to the unpaid compensation to which the employee was entitled to on the date of death.³³

Division of injury-related death benefits depends on the number and type of dependents. First, whole dependents divide the benefits equally to the exclusion of partial dependents,³⁴ with the exception that the surviving spouse is entitled to at least one-half of the compensation payable.³⁵ The surviving spouse and minor children of the employee are...