THE STATE OF SOUTH CAROLINA
In The Supreme Court
Alphonso Smith, Petitioner,
SC Department of
Employer, and State
Fund, Carrier, Respondent.
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Richland County
Larry R. Patterson, Circuit Court Judge
Opinion No. 24959
Heard May 27, 1999 - Filed June 28, 1999
Preston F. McDaniel, of Columbia, for petitioner.
Ajerenal Danley, of Columbia, and Rose Mary
McGregor, of the State Accident Fund, of Columbia,
WALLER, A.J.: We granted a writ of certiorari to review the Court of
Appeals' decision in Smith v. SC Dept. of Mental Health, 329 S.C. 485, 494
S.E.2d 630 (Ct. App. 1997). We affirm.
Petitioner, Alphonso Smith, was injured in a work related. accident in
May, 1989, while employed as a "trades worker"1 for the Department of Mental
Health (DMH). He received workers' compensation benefits and was in and out
of work from July, 1989 until April, 1992. Pursuant to a settlement agreement
with DMH, Smith began part-time work as a trades helper in April, 1992, and
DMH ceased payment of benefits. In August, 1992, Smith was again injured
while working and DMH again began paying temporary benefits.
In Dec. 1992, DMH filed an application to stop payment of compensation
based on a physician's report that Smith had reached maximum medical
improvement (MMI) on Nov. 11, 1992. The single commissioner found Smith had
reached MMI and held DMH was entitled to stop payment of temporary
benefits. The single commissioner awarded compensation for a 35% permanent
disability to his back. The Full Commission affirmed, with the exception that
it found only a 12% permanent disability to Smith's back. The Circuit Court
affirmed the Full Commission. The Court of Appeals affirmed the ruling that
DMH was entitled to cease payment of temporary benefits upon a finding Smith
had reached MML but held Smith was deprived of his due process rights when
the Single Commissioner ceased taking testimony at his hearing. Accordingly,
the Court of Appeals remanded to Commission for receipt of further evidence
regarding the degree of Smith's impairment and disability, The Court of
Appeals noted that since DMH had not appealed the Single Commissioner's
ruling that Smith had a 35% impairment to his back, the Full Commission
should not have reduced it to 12%. There is no issue on certiorari concerning
Did the Court of Appeals properly hold DMH was entitled to cease
payment of temporary benefits upon a finding of MMI?
heavy construction work. Smith had been employed by DMH in this capacity
1. REG. 67-5072
Smith claims an employer may not cease payment of temporary benefits
while an employee is under any disability.3 We find this
The rationale for ceasing temporary benefits upon a finding of MMI is
to permit entry of a permanent award. See Hines v. Hendricks Canning Co.,
263 S.C. 399) 211 S.E.2d 220 (1975)(noting that degree of permanent disability
cannot be determined prior to MMI). Clearly, if an employee has reached MMI
and remains disabled, then his injury is permanent. This is precisely the
reason to terminate temporary benefits in favor of permanent benefits upon
a finding of MMI.
Part 2, eff June 27, 1997. It provided, in pertinent part:
B. Disability is presumed to continue until the employee returns to work.
C. The employer's representative may request a hearing for
permission to terminate compensation benefits by:
(3) Attaching the following to the Form 21:
(a) A medical certificate of the authorized health care provider
stating the claimant has reached maximum medical improvement; or
(b) A medical certificate of the authorized health care provider stating the
claimant is able to return to the same or other suitable job, an impairment
rating, if any, and an affidavit of the employer that the same or other suitable
job has been provided to the claimant; or
(c) A medical certificate of the authorized health care provider stating the
claimant is unable to return to the same or other suitable job and an
impairment rating; or
(d) A medical certificate of the authorized health care provider stating the
claimant refuses medical treatment.
Reg. 67-507 has been rewritten and replaced by Reg. 67-506.
3 Since DMH filed to stop payments under Reg. 67-507(c)(3)(a)(regarding
maximum medical improvement), while simultaneously indicating Smith still
had an impairment rating of 4% to his spine, and was limited in his ability to
lift, carry and pull heavy objects, Smith claims he was still under a disability
such that temporary benefits should not have been stopped.
Although this Court has not specifically addressed the issue, the Court of
Appeals had repeatedly held once the Commission affirms a finding of MMI, it
is appropriate to terminate temporary benefits in favor of permanent disability
benefits, if warranted by the evidence. Morgan v. JPS Automotives, 321 S.C.
2012, 467 S.E.2d 457 Ct. App. 1996)(benefits properly terminated on showing
employee reached MMI; employer not required to show employee had returned
to work, or was able to work), cert. dismissed as improvidently granted, 326 S.C.
2612 486 S.E.2d 263 (1997); O'Banner v. Westinghouse, 319 S.C. 24,459 S.E.324
(Ct. App. 1995)(regulation unambiguously allows employer to attach only a
medical certificate stating claimant has reached MMI to support stop payment
application); Brown v. Owen Steel Co., 316 S.C. 278, 450 S.E.2d 57
(Ct.App. 1994)(temporary total disability is properly terminated when employer
provides one of the four certificates required in Regulation 67-507(C)(3) without
regard to employee's work status), cert. denied 95-.OR-590 (S.C. Sup. Ct. May 18,
1999). Further, this Court has implicitly recognized, without discussion, that
temporary benefits may be terminated upon a showing of MMI. Gilliam v.
Woodside Mills, 319 S.C. 3852 461 S.E.2d 818 (1995)(recognizing termination
of temporary benefits and replacement with permanent benefits is proper upon
finding of MMI).
Contrary to Smith's contention, Reg. 67-507 does not alter the burden of
proof. S.C. Code Ann. § 42-9-260 (1985) specifically provides that "[t]he
Commission shall provide by rule the method and procedure by which benefits
may be suspended or terminated for any cause, but such rule shall provide for
an evidentiary hearing and Commission approval prior to termination..."4 In
enacting Reg. 67-507, the Commission set forth the procedure for which benefits
could be terminated. The Regulation merely sets four alternative criterion 5
which may be attached to a medical certificate in support of an employer's
application to terminate benefits. We find no altered burden of proof.
Finally, Smith contends this Court's opinion in Coleman v. Quality
1996. The quoted provision is now contained in Section 42-9-260(F).
5 The medical certificate may state either that a) the claimant has
reached MMI, b) the claimant is able to return to a suitable job and setting forth
an impairment rating, c) the claimant is unable to return to a suitable job and
setting forth an impairment rating, or, d) the claimant refuses medical
Concrete Products, Inc., 245 S.C. 625, 142 S.E.2d 43 (1965) indicates that
benefits may not be terminated until an employee's disability has ceased. We
disagree. In Coleman, this Court merely held, citing the predecessor to
S.C.Code Ann. § 42-9-190, that an employer could be relieved of the obligation
of paying temporary total benefits if it offered or procured a suitable job for the
employee. Id. at 632, 142 S.E.2d at 46. The primary issue in Coleman however,
was whether or not the employee was totally disabled due, in large part, by
reason of his limited education, experience, and inability to obtain other
employment.6 Even if, as Smith contends, he is totally disabled, if he has in fact
reached MMI, then the proper remedy is to cease temporary benefits, and
award permanent compensation. Moreover, Coleman did not arise under the
current regulations which permit employers to file for a termination of
temporary benefits upon demonstrating the employee has reached MMI.
Coleman is simply inapplicable here.
We find the Court of Appeals properly held DMH was entitled to stop
payment of temporary total benefits under Reg. 67-507(C)(3)(a) upon
establishing Smith had reached MMI. The Court of Appeals' opinion is
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.
that the Commission should have found him totally disabled by reason of his
lack of education and experience. That Court specifically remanded for a
determination anew as to the extent of Smith's disability. 494 S.E.2d at 639,
n. 7. Accordingly, the extent of his disability is not before this Court.
7 Smith's remaining issue is affirmed pursuant to Rule 220(b), SCACR:
Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 476 S.E.2d
477(1996)(equal protection analysis).