Having worked as a South Carolina workers compensation attorney for nearly twenty years, one of the questions that I’m asked most by my clients is what is the difference between “impairment” and “disability.” Many times these two terms of art are used interchangeably but I can assure you that both these words have a very different meaning and there is a distinction between these two words meaning that can really make a difference in your case. The South Carolina’s Workers Compensation commission is bound by the Workers Compensation Act which is found in Title 42 of the South Carolina Code of Laws. Specifically, S.C. Code Ann. §42-1-120 defines what “Disability” means. It reads in part that “[t]he term “disability” means incapacity because of injury to earn the wages which the employee was receiving at the time of injury and the same or any other employment.” So with this straight forward definition of disability the next logical question is what in the world does “impairment” mean and why and how does this matter to my case?
“Impairment” is a medical term of art which is defined by Mosby Medical Encyclopedia to mean “any disorder in structure or function resulting from abnormalities that interfere with normal activities.” So to simplify things, this simply means that your doctor will assign what your impairment is for whatever injured body part or body parts you have as a result of your work accident. And the basis of this impairment rating will be directly linked to whatever disorder in the structure or function you have to the injured body parts. So then the next logical question from here is how does your doctor determine what impairment, if any, you have as a result of your South Carolina work related accident. Your doctor will typically use a publication known as the American Medical Association Guides to Permanent Impairment. While the “Guides” are not mandatory, meaning they do not have to be used by the South Carolina Workers’ Compensation Commissioner deciding your case, the Guides are currently the preferred book used to determine impairment in South Carolina by physicians and by the South Carolina Workers Compensation Commission. There are several editions to the guides ranging from the first edition all the way up to the sixth edition, however, it is important that you try to get your doctor to use the AMA guides fifth edition because it is built upon the same methodology for determining impairment that was used in the first four editions whereas the sixth edition makes a major departure from this methodology, was not peer reviewed and gave no justification for its break from the prior method used to determine impairment. Given the above, the sixth edition has been discredited and many jurisdictions will not use that edition to determine impairment.
So when you’ve suffered any type of injury to a body part or an organ or a psychological injury the impairment assigned to you by your doctors will be the building block and the first step in determining what the extent of your disability is under the South Carolina Workers Compensation Act. It is very important to note that the impairment that will be assigned to you for your injuries will not be given to you until you reach “maximum medical improvement”. This is also known as “MMI” which is the point in your case where you have reached a plateau after recovering from you injuries. That is not to say that you are all better or that you have made a 100% recovery from your accident. It is simply to say that after a period of time (usually 6-12 months) your doctors will assess whether or not you’ve reached that plateau where you likely will not get worse and you likely will not get better. This of course is just a snapshot in time and conditions sometimes improve from this milestone or get worse and so it is just a stepping off point where the physician believes they have a reasonable opportunity to evaluate you and determine what is the likelihood of your long-term dysfunction, if any, from your work accident.
Once you have your impairment rating from your physicians, the next step will be determine what is your extent of disability under the Act. Please feel free to search for the additional blog that I have written that addresses the three statutes that address how you make a recovery for a disability in a South Carolina workers compensation case. In that blog I have given an in depth analysis on how to calculate what a likely result would be given the extent of your impairment. However, the subject matter is quite lengthy and goes beyond the scope of this blog that you are reading today.
Importantly, often times my clients ask me if they are going to be able to recover fro “pain and suffering” or for “loss of enjoyment of life” and other types of damages that they typically would be able to recover in a personal injury or Tort claims cause of action. Workers compensation is social legislation that provides remedial benefits to injured workers in South Carolina. The good news is that it is a no fault system meaning that you are likely covered whether it is your fault or your employers fault or somewhere in-between. The bad news is that there is a cap on damages. This cap on damages means that you are able to get the medical treatment as a result of your accident, you are able to get weekly checks, what is known as Temporary Total Disability or Temporary Partial Disability to pay you while you are out of work recovering for your injuries under doctors orders and at the end of your case you are able to make a recovery based on your “disability” or what they sometimes call “loss of use”. Simply put this means that you are not able to recover for pain and suffering or loss of enjoyment of life, or any of the other host of damages that you are typically able to recover in a personal injury action. However to be clear, you are able to recover for the “disability” or “loss of use” that you suffered as a result of your work accident.
The Supreme Court in South Carolina held very early on in 1955 that disability is to be measured by the employees capacity or incapacity to earn the wages which he was receiving at the time of his injury. Colvin v. E I Du Pont De Nemours Co.,227 SC 465 (1955). Furthermore in Ritter v. Allied Chemical Corp., the District Court of South Carolina held in 1968 that the statutory compensation which is to be awarded for “disability” as defined by the legislature, is measured by the employee’s capacity, or incapacity, to earn the wages which he was receiving at the time of his injury. It is otherwise stated as the compensation for, or to relieve from, the loss or impairment of an employee’s capacity to earn, or from the deprivation of support from his earnings.
Importantly after receiving your impairment ratings from your doctor you can then move before the Commission to prove your disability either through the “economic theory” or the “medical theory”. The economic theory is argued when the Claimant is taking the position that he or she has a reduction in your earning capacity, whether or not that is a partial reduction in their earnings or a total loss of earnings. In contrast, under the medical theory the injured worker is using his medical impairment directly as given by his doctor to try to show some type of disability or loss of use that he sustained even though he has been able to return to work earning the same or better wages as he did before the work accident. Whether you are using either of these theories, you the claimant have the burden of proof by showing that your impairment translates to a disability that would entitle you to benefits. The way to prove this of course is to have expert medical opinion from your doctor that clearly states that you have impairment as a result of your work related accident. Your doctor will want to give this opinion “most probable and to a reasonable degree of medical certainty” as this is the medical legal standard that is required in the state of South Carolina when proving this medical issue in this workers compensation case.
Working your way through the South Carolina Workers Compensation Act can be intimidating to say the least. It is best to get an experienced South Carolina workers compensation attorney that has experience with the Act and can help shepherd you through the many legal issues and roadblocks that will certainly appear along the way of your case. If you have questions about your workers compensation case, call us now to get the answers to all your questions and to learn your legal rights. We are available 24/7 to help you with all of your legal needs.