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Bass v. Kenco Group11/21/2005
a legal argument, but a factual one. The evidence of record overwhelmingly supports the commission's conclusion that Bass's mental problems were born out of his shoulder injury. The opinions of Dr. Stuck, Psychologist Feigley, and Dr. Estefano all unequivocally link Bass's psychological issues directly to his physical injury. The commission is the finder of fact. Substantial evidence supports the commission's finding.
III. Credit for Temporary Benefits
The commissioner's order stated:
I conclude that the Claimant has suffered this wage loss for the maximum period of 340 weeks for permanent partial disability pursuant to S.C. Code Ann. § 42-9-20. I further find that the Claimant's partial disability began after a period of total disability and therefore pursuant to said section the amounts paid for temporary total disability shall not be deducted from the maximum of 340 weeks allowed for permanent partial disability.
(Emphasis added.) Kenco argues the commission should have given it credit for the temporary total benefits paid after maximum medical improvement.
The pertinent sentence in section 42-9-20 provides: "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).
Dr. Midcap released Bass on June 19, 2001 with a 10% permanent impairment to the left upper extremity and placed him on permanent work restrictions. Bass's depression began as a result of and after this period of temporary total disability. The period of total disability of the shoulder is separate and distinct from the subsequent period of permanent partial general disability stemming from psychological issues. Thus, Bass was paid total temporary benefits only for the uncontested period of his physical disability. Accordingly, the commissioner correctly applied section 42-9-20 and declined to give Kenco a credit for temporary benefits paid.
IV. Maximum Medical Improvement
The commissioner found "Claimant has a) reached maximum medical improvement as to his physical injuries; b) has not reached maximum medical improvement with respect to his psychiatric and psychological complications; and c) is in need of ongoing psychiatric and psychological treatment including prescription medications under the direction of Dr. Estefano."
Kenco argues that " rior to reaching MMI, the claimant is not entitled to permanent benefits." At the hearing before the circuit judge, counsel for Kenco surmised: "You cannot have an order saying that he is partially at MMI and partially not at MMI." We disagree.
Kenco has proffered no precedent or rationale demonstrating error in the commissioner's finding that Bass had reached maximum medical improvement for his shoulder injury but not for his psychological problems. Furthermore, we disagree with Kenco's statement that Bass should not have been awarded permanent benefits if he was not at maximum medical improvement. A declaration of maximum medical improvement is irrelevant to the award of permanent partial disability in this case. "'Maximum medical improvement' is a distinctly different concept from 'disability.'" Dodge v. Bruccoli, 334 S.C. 574, 581, 514 S.E.2d 593, 596 (Ct. App. 1999).
"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 v. Westinghouse Elec. Corp., 319 S.C. 24, 28, 459 S.E.2d 324, 327 (Ct. App. 1995). It is true that when a claima
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