An injured crane operator who expressed his aspiration to start a restaurant business got into a pickle during workers’ compensation proceedings — almost getting denied his wage loss claim, until the state’s highest court stepped in.
The case involves South Carolina resident Franklin Hutson who was working as a crane operator for the State Ports Authority. While on the job, he suffered an injury to his lower back and legs while attempting to remove a container from a ship.
Although Hutson initially thought he just pulled a muscle, he was diagnosed with a disc bulge at L2-3 and spondylosis at L5-S1. His treatment included steroid injections, physical therapy, and use of a back brace.
After reaching maximum medical improvement, he filed a Form 50 with the workers’ compensation commission for continued benefits alleging permanent and total disability. He also asked to receive the award in a lump sum.
Although the Ports Authority and its insurance carrier, the State Accident Fund, admitted the accident and the back injury, they disputed the claims to his legs and argued he should receive only permanent partial disability benefits. They also objected to Hutson’s request that his benefits be paid in a lump sum.
The case proceeded to a hearing before the single commissioner, where Hutson presented an employability evaluation report of a vocational specialist.
The specialist’s report stated that Hutson will require vocational rehabilitation plans and career counseling. The report suggested that Hutson’s earning ability post-injury was less than $14,000 per year, compared to roughly $90,000 per year he earned as a crane operator.
Hutson also testified at the hearing on his plans for future employment, stating that he was interested in opening a restaurant, which is why he requested the award in a lump sum.
Hutson admitted he had never previously run a restaurant and acknowledged that doing so would require him to stand at the register and in the kitchen as well as sit for periods of time writing menus and paying bills.
Nevertheless, Hutson stated he believed he could run a restaurant and although he could not respond with any specificity when asked how much money he expected to make, he informed the commissioner, “It depends on how many people I get coming in there. My food’s good.”
The commissioner found Hutson sustained a 30 percent loss of use to his back. He also noted that Hutson suffered radicular symptoms which affected the function of his right leg, but did not award any benefits.
With regard to the wage loss claim, the commissioner denied recovery, finding “that claimant understands what it entails to run a restaurant and he believes he can do this type of work.”
The commissioner concluded that because Hutson could not testify as to how much he would make as a restaurateur, there was no way to determine if he would suffer any loss of earning capacity — even though the commissioner went on to express some doubt about the viability of Hutson’s plan.
The commissioner further noted that had Hutson not made these statements about his desire to open a restaurant, the commissioner “would have found him to be permanently and totally disabled” under the South Carolina statute. The full commission and circuit court affirmed.
Hutson then appealed to the court of appeals. He said the finding that he was capable of running a restaurant was not supported by substantial evidence. He also argued the recovery should not have been limited to an award for his back because the commissioner found his back injury affected his legs, and that the case should have been remanded for further fact findings on the wage loss and loss of use of his back, leg, or whole person.
The court of appeals agreed that the full commission should have considered whether his back injury combined with the damage to his leg entitled him to greater benefits and remanded for reconsideration of this issue. However, it found substantial evidence to support the full commission’s finding that Hutson did not prove a wage loss.
When the case reached the state Supreme Court, the highest court agreed with Hutson that no substantial evidence exists to support the commissioner’s conclusion that he is not entitled to wage loss benefits. “Because we find the only evidence supporting the full commission’s decision is pure speculation and conjecture, we agree (with Hutson)” the high court ruled.
When a worker covered by the Workers’ Compensation Act is injured, he can recover under the “general disability” statutes or the “scheduled loss” statutes, the state Supreme Court observed.
“It is undisputed that Hutson’s admitted injury prevents him from continuing in his life’s occupation as a crane operator,” the high court stated. “The sole question before us therefore is whether his injury will also prevent him from earning the same wages in another job. In concluding that it will not, the single commissioner, as affirmed by the full commission, focused entirely on Hutson’s own wholly speculative testimony regarding the restaurant.”
The Supreme Court observed that when Hutson’s counsel asked him about his future plans, Hutson responded simply that he was “looking into maybe a restaurant business.” However, the sole purpose for this testimony was to support Hutson’s request that his award be paid to him in a lump sum.
Despite Hutson’s confidence in his own abilities, the Supreme Court also stated, the record is clear that Hutson had no experience running a restaurant or an understanding of what doing so entails.
The high court also observed that the commissioner, and the full commission, held Hutson’s inability to testify as to what he could earn from this proposed venture meant Hutson could not show a loss of earning capacity.
To use such unsupported and wildly optimistic goals which are in direct conflict with the only concrete evidence in the record would “turn the Workers’ Compensation Act on its head and violate the stated policy behind it,” according to the Supreme Court.
The high court added that the court of appeals and the circuit court then “compounded the commission’s error” by holding Hutson’s testimony constituted not just evidence, but substantial evidence, that he had not suffered a wage loss.
“We reverse the court of appeals’ decision that Hutson did not show a wage loss within the meaning of section 42-9-20, and therefore remand this matter to the commission,” the high court ruled.
The only evidence in the record bearing on Hutson’s future earning capabilities is from the vocational expert who offered uncontradicted testimony that Hutson’s present earning potential is approximately $14,000 per year. However, this figure is what Hutson could expect to earn without successful completion of a vocational rehabilitation plan, the high court stated.
“Because the record does not reveal what Hutson might earn if he were to complete this plan, we remand for the commission to determine his earning capabilities upon successful completion, if possible. The commission will then enter an award as necessary.”
The case is Franklin Hutson, Petitioner v. South Carolina State Ports Authority, Employer, and State Accident Fund, Carrier, Respondents, Appellate Case No. 2010-178226, the State of South Carolina in the Supreme Court, Filed Sept. 19, 2012. The state Supreme Court’s decision can be found on the South Carolina Judicial Department’s website (a PDF file).
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