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Bass v. Kenco Group11/21/2005
. Accordingly, we decline to dismiss this appeal based on Kenco's assignments of error.
II. Award of Benefits
A. The Award Under Section 42-9-20
Kenco maintains the court erred in affirming the commission's award of benefits under S.C. Code Ann. § 42-9-20 (1985) because "the facts of this case do not support a loss of earning capacity, since the claimant never was physically fit to drive a truck."
Section 42-9-20 provides:
Except as otherwise provided in § 42-9-30, when the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as provided in this chapter, to the injured employee during such disability a weekly compensation equal to sixty-six and two-thirds percent of the difference between his average weekly wages before the injury and the average weekly wages which he is able to earn thereafter, but not more than the average weekly wage in this State for the preceding fiscal year. In no case shall the period covered by such compensation be greater than three hundred forty weeks from the date of injury. In case the partial disability begins after a period of total disability, the latter period shall not be deducted from a maximum period allowed in this section for partial disability.
S.C. Code Ann. § 42-9-20 (1985).
"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." Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555, 393 S.E.2d 172, 173 (1990) (footnote omitted). " n 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." Id. (citing Roper v. Kimbrell's of Greenville, Inc., 231 S.C. 453, 99 S.E.2d 52 (1957)). "A claimant may obtain partial permanent disability under S.C. Code Ann. § 42-9-20 (1976). To do so a claimant must show an injury and a loss of earning capacity." Wigfall v. Tideland Utilities, Inc., 354 S.C. 100, 105 n.3, 580 S.E.2d 100, 102 n.3 (2003) (citing Roper, 231 S.C. 453, 99 S.E.2d 52).
Kenco asserts that Bass was insulin dependent while employed as a truck driver, and therefore, he was driving a truck in violation of federal law. Under its theory, if Bass could not legally drive a truck while working for Kenco, he should not be given credit for the salary he enjoyed while doing so.
There is no evidence in the record suggesting Bass drove a truck while insulin dependent. Approximately one month before starting his job with Kenco, a doctor gave Bass insulin shots. Bass testified "the blood sugars kept dropping with the insulin, so I discontinued the insulin and went back to diet and exercise." On a Kenco medical history questionnaire filled out prior to being hired, Bass indicated that he did not have diabetes. At the hearing, Bass explained he checked "No" " ecause it wasn't a major problem, it wasn't a problem at that time." Further, Bass discussed his diabetic incident with Kenco manager Steve McIntire and with the Kenco doctor who performed a physical on him:
I told [McIntire] that I had problems with sugar diabetes before. That recently I had had it back in June, a flare up, my wife got sick. When I took the physical I spoke with that doctor and told them the same thing. . . . .
Q: So what did Mr. McIntire tell you about that?
A: As long as I passed the physical he did not have a problem with that.
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