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Bass v. Kenco Group11/21/2005
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Q: What was the problem that they had with diabetes in general, according to Mr. McIntire, what was the problem with them?
A: Only if I had to go back on insulin would I not be able or be allowed to drive tractor-trailers.
Tests conducted as a part of Bass's physical came back negative for diabetes.
Bass averred he was not insulin dependent at any time while driving a truck for Kenco:
Q: Did you go on insulin at any time when you were driving their trucks?
A: Not when I was driving their trucks.
Q: No time?
A: No time.
Q: So at no time were you insulin dependant when you were doing the job for which you were hired?
A: That's right. . . .
The federal regulation pled by Kenco provides:
(a) A person shall not drive a commercial motor vehicle unless he/she is physically qualified to do so . . . . (b) A person is physically qualified to drive a commercial motor vehicle if that person-- . . . .
(3) Has no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control[.]
49 C.F.R. ยง 391.41 (emphasis added).
In essence, Kenco attempts to apply the phrase "able to earn" in section 42-9-20 to the average weekly wages Bass was earning prior to the injury, and then argue that he should be deemed unable to earn $1,211.52 because of the diabetes. Yet, according to Bass's uncontroverted testimony, he was NOT insulin dependant at any time while driving a truck for Kenco. Thus, even if Kenco's legal theory were sound, it would fail because it is unsupported by the evidence. We reject Kenco's position that the facts of this case do not support Bass's loss of earning capacity because he was not actually able to legally earn the income.
B. Award Under 42-9-30 Not Mandated
Indubitably, the record supports an award under section 42-9-20. Consequently, we disagree with Kenco's argument on appeal that the commission should have entered an award pursuant to section 42-9-30.
In Lee v. Harborside Cafe, 350 S.C. 74, 564 S.E.2d 354 (Ct. App. 2002), this Court explained:
Generally, an injured employee may proceed under either the general disability sections 42-9-10 and 42-9-20 or under the scheduled member section 42-9-30 in order to maximize recovery under the South Carolina Workers' Compensation Act. See Brown v. Owen Steel Co., 316 S.C. 278, 280, 450 S.E.2d 57, 58 (Ct. App. 1994) (proceeding under the general disability sections for an injury to a scheduled member gives the claimant "the opportunity to establish a disability greater than the presumptive disability provided for under the scheduled member section."). Only where a scheduled loss is not accompanied by additional complications affecting another part of the body is the scheduled recovery exclusive. Id. (citing Singleton v. Young Lumber Co., 236 S.C. 454, 471, 114 S.E.2d 837, 845 (1960)).
Lee at 78, 564 S.E.2d at 356.
In Stokes v. First National Bank, 298 S.C. 13, 21, 377 S.E.2d 922, 926 (Ct. App. 1988), aff'd by 306 S.C. 46, 410 S.E.2d 248 (1991), we held that "mental injuries are compensable if, as in heart attack cases, the mental injury is induced either by physical injury as in Kennedy or by unusual or extraordinary conditions of employment." Here, the commission found Bass incurred a mental injury as a result of the physical injury he sustained to his shoulder. As found by the circuit court, the commission's rulings concerning Bass's psychological and psychiatric problems are supported by the unrefuted opinions of the Employee's regular phys
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