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SMITH v. S.C. DEPT. OF MENTAL HEALTH11/24/1997
has reached maximum medical
In this case, DMH attached to its request for a hearing a medical certificate establishing that Smith had reached maximum
Smith, however, contends that a claimant with an impairment rating and restrictions on the work the claimant is able to perform can never be said to have reached maximum medical improvement; thus, DMH could not properly terminate his payments under Regulation 67-507 (C)(3)(a). Because DMH did not comply with the requirements of subsections (C)(3)(b) or (c), Smith argues that DMH was not entitled to terminate his compensation payments. We find this argument to be without merit.
"Maximum medical improvement is a term used to indicate that a person has reached such a plateau that in the physician's opinion there is no further medical care or treatment which will lessen the degree of impairment." O'Banner, 319 S.C. at 28, 459 S.E.2d at 327. Thus, the fact that a claimant may have some degree of permanent impairment does not prevent the claimant from ever reaching maximum medical improvement. See Swinton v. South Carolina Dep't of Mental Health, 314 S.C. 202, 442 S.E.2d 215 (Ct. App. 1994) (conclusion that claimant has reached maximum medical improvement does not amount to a conclusion that claimant's disability has ended). In this case, because DMH produced a medical certificate establishing that Smith had reached maximum medical improvement, DMH, pursuant to Regulation 67-507 (C)(3)(a), was entitled to a hearing on its request to terminate its payments to Smith.
Finally, Smith argues that, without regard to the regulatory requirements, the Act itself provides that compensation benefits may be stopped only if the employer offers or procures suitable employment for the employee. See U.S. Outdoor Advertising, Inc. v. South Carolina Dep't of Transp.,
324 S.C. 481, 481 S.E.2d 112 (1997) (While regulations have the force of law, they may not alter or add to the terms of a statute.). Again we disagree.
As noted above, S.C. Code Ann. § 42-9-260 authorizes the Commission to adopt regulations setting forth the procedures for terminating benefit payments, and Regulations 67-504 and 67-507 comply with this directive. Smith, however, contends the regulations conflict with section 42-9-190 of the Act, which provides that " f an injured employee refuses employment procured for him suitable to his capacity and approved by the Commission[,] he shall not be entitled to any compensation at any time during the continuance of such refusal." S.C. Code Ann. § 42-9-190 (1985). According to Smith, section 42-9-190 requires an employer to find suitable employment before it can terminate an employee's payments. We disagree. As we read the statute, it imposes no requirement on an employer to offer suitable employment, but instead simply provides that if the employer does offer the employee a position consistent with the employee's physical capacity, the employee is not entitled to benefits for any period during which he refuses the employment. Accordingly, the provisions of Regulation 67-507 are not inconsistent with section 42-9-190.
Coleman v. Quality Concrete Products, Inc., 245 S.C. 625, 142 S.E.2d 43 (1965), which Smith contends supports his argument, does not change our analysis. In Coleman, the claimant was a 58 year-old man with a sixth grade education whose entire work history consisted of relatively low-skilled jobs. Although the claimant conceded he was not totally disabled from a medical or physical standpoint, he argued he was totally disabled because his injury prevented him from obtaining any job for which he was qualified. 245 S.C. at 628-29, 142 S.E.2d at 44. The Supreme Court, finding that the claimant had s
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