DECISION & ORDER BY: BEFORE THE SOUTH CAROLINA WORKERS' COMPENSATION COMMISSION WCC FILE NUMBER Claimant,

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1 DECISION & ORDER BEFORE THE SOUTH CAROLINA WORKERS' COMPENSATION COMMISSION WCC FILE NUMBER XXXXXXXXX, Claimant, vs. BIG LOTS STORES, INC., Employer, ARCH INSURANCE COMPANY, Carrier, Defendants. HEARING: Hearing held in Myrtle Beach, South Carolina, on April 4, APPEARANCES: E. Courtney Gruber, Esquire, on behalf of the Employer/Carrier. D. Andrew Turman, Esquire, on behalf of the Employee/Claimant. PURPOSE OF HEARING: To determine issues set forth in the Forms 50 and 51. DECISION & ORDER BY: Andrea C. Roche, Commissioner. DATE FILED:

2 STIPULATIONS At the call of the case, the parties stipulated as follows: 1. That both the Claimant and the Defendants were subject to and bound by the terms and provisions of the South Carolina Workers Compensation Act. 2. That jurisdiction and sufficiency of the notice of the hearing were admitted. 3. That, at the time of the injury, the average weekly wage being earned by the Claimant was the sum of $480.13, resulting in a compensation rate of $ That the Claimant sustained a compensable injury on April 14, That venue for this hearing was proper in Horry County, South Carolina, pursuant to stipulation by the parties. APA SUBMISSIONS The following APAs were submitted on behalf of the Employee/Claimant: Date of No. APA Name of Provider Report Pages (1) Gary L. Smoot, M.D. 9/22/ (2) Cary Orthopaedic Spine Specialists 11/16/2010-7/18/ (3) Long Bay Diagnostic Imaging 5/7/ (4) InMed Diagnostic Services of SC 4/14/ (5) Cary Orthopaedic Spine Specialists 1/20/ (6) Claimant-Employee Earnings 5 Summary from Big Lots Stores (7) Claimant-Employee Wage Slips 1 From The Pantry None. The following Exhibits were submitted on behalf of the Employee/Claimant: The following APAs were submitted on behalf of the Employer/Carrier: 2

3 Date of No. APA Name of Provider Report Pages (8) Cary Orthopaedic 11/16/2010-9/22/ (9) Grand Strand Surgical Specialists 5/17/ /4/ (10) Long Bay Diagnostic Imaging 5/7/ The following Exhibits were submitted on behalf of the Employer/Carrier: (11) Claimant's personnel file 3 (12) Payroll records from The Pantry 3 Claimant's deposition STATEMENT OF THE CASE The Claimant took the position that he was entitled to temporary total compensation as his employment was terminated while he was still under light-duty restrictions. H e was seeking temporary total compensation from October 30, 2010, to December 3, He was also seeking a finding of permanency to the back in excess of the 5% impairment rating given by the treating doctor on September 22, The Defendants took the position that the Claimant had refused light-duty work and, therefore, was entitled to no temporary total compensation. They conceded that the Claimant had minimal permanency pursuant to the impairment rating rendered by the authorized doctor. The Claimant testified as the only witness. He testified that, at the time of the hearing, he was 53 years old. He testified that he had completed a four-year college program in Jordan. He also testified that he was currently employed as a taxicab driver and that he owned his own cab. He worked for a company called Durham Best Cab Company located in Durham, North Carolina. The Claimant testified that he made the decision on 3

4 how many days a week he drive but insisted that he was unable to drive as much as he wanted because his back hurt him. The Claimant testified that, at the time of the accident, he had concurrent employment working at The Pantry in Little River, South Carolina. Prior to that, he owned a liquor store in Little River for two years. P rior to that, he owned several convenience stores in Durham, North Carolina, for 18 years. The Claimant was injured while employed for Big Lots on April 14, He described this accident as having occurred when he was unloading some chairs. The Claimant received conservative treatment first at Doctor s Care and then with Grand Strand Surgical Specialists. In October of 2010, the Claimant chose to relocate to Durham, North Carolina. Prior to that, Big Lots had been able to provide light-duty for him. Additionally, the Claimant was able to work full time at his regular pre-accident job at The Pantry for the entire time he lived in South Carolina until the end of October, The Claimant admitted that Big Lots had found two jobs for him in North Carolina for nonprofit groups. The first nonprofit was the Salvation Army. The Claimant admitted that he did not want to work there because he didn t like the work and he believed that the building smelled bad. He was then sent to Habitat For Humanity. At that time, during his initial interview, he made disparaging comments to the human resources person with whom he was interviewing as to his opinion concerning the business practices of that establishment. He did not get that job as well. The Claimant testified that his back hurt him all of the time and prevented him from doing various activities that he had previously enjoyed. 4

5 Based upon t he stipulations of the parties, the testimony and evidence received and produced at the hearing, as well as my personal observation of the witnesses, the undersigned Commissioner finds the following facts based upon the preponderance of the evidence: FINDINGS OF FACT IT IS FOUND AS A FACT: 1. That all parties to this proceeding are subject to and bound by the terms and provisions of the South Carolina Workers' Compensation Act. 2. That the compensation rate is $XXX.XX based on an average weekly wage of $XXX.XX. 3. That the Claimant sustained an injury to his back in an injury by accident which occurred April 14, That the Claimant reached maximum medical improvement on February 17, That no additional medical treatment was recommended as likely to reduce the Claimant s disability after February 17, That light duty within the Claimant s restrictions was offered and refused by the Claimant. 7. That the Claimant voluntarily relocated from Myrtle Beach, South Carolina, to Durham, North Carolina, on or about October 30, That the Claimant is entitled to no temporary total compensation as light-duty work was provided by the Employer and refused by the Claimant. 5

6 9. That the preponderance of the evidence did not support the Claimant s contention that he was entitled to any temporary total compensation as a result of this accident. 10. That the authorized treating doctor released the Claimant at MMI on February 17, That the Claimant received no medical treatment after February 17, That there was no medical evidence that any additional medical treatment after February 17, 2011, would be likely to reduce the Claimant s disability. 13. That a Form 14B completed September 22, 20 11, stated that the Claimant had a 5% permanent impairment to the lumbar spine with permanent restrictions of no lifting over 40 pounds. 14. That there is no medical evidence to support any limitations other than the 40-pound lifting restriction. 15. That no additional medical treatment was recommended as likely to reduce the Claimant s disability from the treating doctor. 16. That the Claimant has sustained a p ermanent partial disability of 10% to his back based upon a preponderance of the evidence. 17. That the Claimant is entitled to no further medical treatment. 18. That the Claimant is entitled to no additional temporary total compensation. Based upon the above Statement of the Case and the Findings of Fact, the following Conclusions of Law are made: 6

7 CONCLUSIONS OF LAW The following sections of the South Carolina Code of Laws give the appropriate definitions and provisions of the South Carolina Workers' Compensation Act as applicable to this case: 1. S.C. Code Ann defines injury by accident; Based upon the above Statement of Case, Findings of Fact, and Conclusions of Law, the following Order is made: ORDER Based on the foregoing, it is hereby: ORDERED, ADJUDGED, AND DECREED that the Claimant is entitled to an award in lump sum representing 10% permanent partial disability to the back (30 x $XXX.XX = $X,XXX.XX); it is further ORDERED, ADJUDGED, AND DECREED that the Claimant is entitled to no additional medical treatment or any other benefits under the Act; it is further No hearing costs or penalties are assessed in this matter. SOUTH CAROLINA WORKERS' COMPENSATION COMMISSION Columbia, South Carolina Andrea C. Roche Commissioner 7

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