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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Alphonso Smith, Petitioner,

v.

SC Department of

Mental Health,

Employer, and State

Workers' Compensation

Fund, Carrier, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Richland County

Larry R. Patterson, Circuit Court Judge

Opinion No. 24959

Heard May 27, 1999 - Filed June 28, 1999

AFFIRMED

Preston F. McDaniel, of Columbia, for petitioner.

Ajerenal Danley, of Columbia, and Rose Mary

McGregor, of the State Accident Fund, of Columbia,

for respondents.

p.13

WALLER, A.J.: We granted a writ of certiorari to review the Court of

Appeals' decision in Smith v. SC Dept. of Mental Health, 329 S.C. 485, 494

S.E.2d 630 (Ct. App. 1997). We affirm.

FACTS

Petitioner, Alphonso Smith, was injured in a work related. accident in

May, 1989, while employed as a "trades worker"1 for the Department of Mental

Health (DMH). He received workers' compensation benefits and was in and out

of work from July, 1989 until April, 1992. Pursuant to a settlement agreement

with DMH, Smith began part-time work as a trades helper in April, 1992, and

DMH ceased payment of benefits. In August, 1992, Smith was again injured

while working and DMH again began paying temporary benefits.

In Dec. 1992, DMH filed an application to stop payment of compensation

based on a physician's report that Smith had reached maximum medical

improvement (MMI) on Nov. 11, 1992. The single commissioner found Smith had

reached MMI and held DMH was entitled to stop payment of temporary

benefits. The single commissioner awarded compensation for a 35% permanent

disability to his back. The Full Commission affirmed, with the exception that

it found only a 12% permanent disability to Smith's back. The Circuit Court

affirmed the Full Commission. The Court of Appeals affirmed the ruling that

DMH was entitled to cease payment of temporary benefits upon a finding Smith

had reached MML but held Smith was deprived of his due process rights when

the Single Commissioner ceased taking testimony at his hearing. Accordingly,

the Court of Appeals remanded to Commission for receipt of further evidence

regarding the degree of Smith's impairment and disability, The Court of

Appeals noted that since DMH had not appealed the Single Commissioner's

ruling that Smith had a 35% impairment to his back, the Full Commission

should not have reduced it to 12%. There is no issue on certiorari concerning

this holding.

ISSUE

Did the Court of Appeals properly hold DMH was entitled to cease

payment of temporary benefits upon a finding of MMI?

heavy construction work. Smith had been employed by DMH in this capacity

since 1977.

p.14

1. REG. 67-5072

Smith claims an employer may not cease payment of temporary benefits

while an employee is under any disability.3 We find this contention untenable.

The rationale for ceasing temporary benefits upon a finding of MMI is

to permit entry of a permanent award. See Hines v. Hendricks Canning Co.,

263 S.C. 399) 211 S.E.2d 220 (1975)(noting that degree of permanent disability

cannot be determined prior to MMI). Clearly, if an employee has reached MMI

and remains disabled, then his injury is permanent. This is precisely the

reason to terminate temporary benefits in favor of permanent benefits upon

a finding of MMI.

Part 2, eff June 27, 1997. It provided, in pertinent part:

B. Disability is presumed to continue until the employee returns to work.

C. The employer's representative may request a hearing for

permission to terminate compensation benefits by:

(3) Attaching the following to the Form 21:

(a) A medical certificate of the authorized health care provider

stating the claimant has reached maximum medical improvement; or

(b) A medical certificate of the authorized health care provider stating the

claimant is able to return to the same or other suitable job, an impairment

rating, if any, and an affidavit of the employer that the same or other suitable

job has been provided to the claimant; or

(c) A medical certificate of the authorized health care provider stating the

claimant is unable to return to the same or other suitable job and an

impairment rating; or

(d) A medical certificate of the authorized health care provider stating the

claimant refuses medical treatment.

Reg. 67-507 has been rewritten and replaced by Reg. 67-506.

3 Since DMH filed to stop payments under Reg. 67-507(c)(3)(a)(regarding

maximum medical improvement), while simultaneously indicating Smith still

had an impairment rating of 4% to his spine, and was limited in his ability to

lift, carry and pull heavy objects, Smith claims he was still under a disability

such that temporary benefits should not have been stopped.

p.15

Although this Court has not specifically addressed the issue, the Court of

Appeals had repeatedly held once the Commission affirms a finding of MMI, it

is appropriate to terminate temporary benefits in favor of permanent disability

benefits, if warranted by the evidence. Morgan v. JPS Automotives, 321 S.C.

2012, 467 S.E.2d 457 Ct. App. 1996)(benefits properly terminated on showing

employee reached MMI; employer not required to show employee had returned

to work, or was able to work), cert. dismissed as improvidently granted, 326 S.C.

2612 486 S.E.2d 263 (1997); O'Banner v. Westinghouse, 319 S.C. 24,459 S.E.324

(Ct. App. 1995)(regulation unambiguously allows employer to attach only a

medical certificate stating claimant has reached MMI to support stop payment

application); Brown v. Owen Steel Co., 316 S.C. 278, 450 S.E.2d 57

(Ct.App. 1994)(temporary total disability is properly terminated when employer

provides one of the four certificates required in Regulation 67-507(C)(3) without

regard to employee's work status), cert. denied 95-.OR-590 (S.C. Sup. Ct. May 18,

1999). Further, this Court has implicitly recognized, without discussion, that

temporary benefits may be terminated upon a showing of MMI. Gilliam v.

Woodside Mills, 319 S.C. 3852 461 S.E.2d 818 (1995)(recognizing termination

of temporary benefits and replacement with permanent benefits is proper upon

finding of MMI).

Contrary to Smith's contention, Reg. 67-507 does not alter the burden of

proof. S.C. Code Ann. § 42-9-260 (1985) specifically provides that "[t]he

Commission shall provide by rule the method and procedure by which benefits

may be suspended or terminated for any cause, but such rule shall provide for

an evidentiary hearing and Commission approval prior to termination..."4 In

enacting Reg. 67-507, the Commission set forth the procedure for which benefits

could be terminated. The Regulation merely sets four alternative criterion 5

which may be attached to a medical certificate in support of an employer's

application to terminate benefits. We find no altered burden of proof.

Finally, Smith contends this Court's opinion in Coleman v. Quality

1996. The quoted provision is now contained in Section 42-9-260(F).

5 The medical certificate may state either that a) the claimant has

reached MMI, b) the claimant is able to return to a suitable job and setting forth

an impairment rating, c) the claimant is unable to return to a suitable job and

setting forth an impairment rating, or, d) the claimant refuses medical

treatment.

p.16

Concrete Products, Inc., 245 S.C. 625, 142 S.E.2d 43 (1965) indicates that

benefits may not be terminated until an employee's disability has ceased. We

disagree. In Coleman, this Court merely held, citing the predecessor to

S.C.Code Ann. § 42-9-190, that an employer could be relieved of the obligation

of paying temporary total benefits if it offered or procured a suitable job for the

employee. Id. at 632, 142 S.E.2d at 46. The primary issue in Coleman however,

was whether or not the employee was totally disabled due, in large part, by

reason of his limited education, experience, and inability to obtain other

employment.6 Even if, as Smith contends, he is totally disabled, if he has in fact

reached MMI, then the proper remedy is to cease temporary benefits, and

award permanent compensation. Moreover, Coleman did not arise under the

current regulations which permit employers to file for a termination of

temporary benefits upon demonstrating the employee has reached MMI.

Coleman is simply inapplicable here.

We find the Court of Appeals properly held DMH was entitled to stop

payment of temporary total benefits under Reg. 67-507(C)(3)(a) upon

establishing Smith had reached MMI. The Court of Appeals' opinion is

therefore

AFFIRMED.7

FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.

that the Commission should have found him totally disabled by reason of his

lack of education and experience. That Court specifically remanded for a

determination anew as to the extent of Smith's disability. 494 S.E.2d at 639,

n. 7. Accordingly, the extent of his disability is not before this Court.

7 Smith's remaining issue is affirmed pursuant to Rule 220(b), SCACR:

Peoples Program for Endangered Species v. Sexton, 323 S.C. 526, 476 S.E.2d

477(1996)(equal protection analysis).

p.17