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Simmons v. City of Charleston2/19/2002
with a sixth grade education to recover relying solely on the claimant's testimony offered to support his lack of earning capacity. Also, in McCollum v. Singer Co., 300 S.C. 103, 386 S.E.2d 471 (Ct. App. 1989), the court affirmed the full commission's finding that a fifty-year-old machine operator was totally disabled based on a vocational consultant's averment that the employee was totally disabled.
Hutchinson, the vocational consultant, testified that Simmons suffered a substantial impairment to his earning capacity and is now unable to compete in the job market. We find the testimony is sufficient under the Coleman and McCollum cases and conclude Simmons was not required to provide medical evidence of total disability.
IV.
The City argues also that Simmons cannot recover total disability when his injuries occurred only to a scheduled member of the body. Under the facts of this case, we disagree.
Simmons suffered an amputation of his left leg which led to an assignment of 100 percent impairment of that leg. Testimony was adduced during the hearing showing the right leg, which was the leg bitten by the spider, also continued to suffer injury . This testimony led the Commissioner to find that Simmons suffered swelling and impairment in his right leg.
The City cites Brown v. Owen Steel Co., 316 S.C. 278, 450 S.E.2d 57 (Ct. App. 1994) to support its argument that the injury to the scheduled member must also cause injury to an unscheduled member to recover under the economic model. Brown suffered a thirty-five percent permanent partial disability to the back. The commission awarded Brown disability to the back under the scheduled member Section 42-9-30 of the South Carolina Code. See S.C. Code Ann. § 42-9-30 (1985 & Supp. 2000). Brown argued he should have been permitted to seek benefits under the general disability statute § 42-9-20 instead of under § 42-9-30. The Commission and the circuit court both held that if a specific member included in the schedule set forth in § 42-9-30 is implicated, the award must be made pursuant to that section. This court concluded the commission misstated the law:
Under our Worker's Compensation Act, a claimant may proceed under § 42-9-10 or § 42-9-20 to prove a general disability; alternatively, he or she may proceed under § 42-9-30 to prove a loss, or loss of use of, a member, organ, or part of the body for which specific awards are listed in the statute. It is well-settled that an award under the general disability statutes must be predicated upon a showing of a loss of earning capacity, whereas an award under the scheduled loss statute does not require such a showing. Brown, 316 S.C. at 279, 450 S.E.2d at 58 (quoting Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555, 393 S.E.2d 172, 173 (1990)). See also Green v. City of Columbia, 311 S.C. 78, 80 n.2, 427 S.E.2d 685, 687 n.2 (Ct. App. 1993) (citing Fields as holding claimant may proceed under § 42-9-10 or 42-9-20 (general disability) or under § 42-9-30 (scheduled disability) to prove a general disability).
Brown, however, did not argue that his back injury affected other parts of his body or that it had contributed to an impairment beyond the scheduled member. Accordingly, this court, finding Brown showed no prejudice resulting from the commission requiring him to proceed under the scheduled member section, affirmed.
"The policy behind allowing a claimant to proceed under the general disability § 42-9-10 and § 42-9-20 allows for a claimant whose injury, while falling under the scheduled member section, nevertheless affects other parts of the body and warrants providing the claimant with the opportunity to establish a disab
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