THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

David B. Lemon, Claimant, Appellant, 

v. 

Mt. Pleasant Waterworks, Employer, and State Accident 

Fund, Carrier, Respondents. 

Appellate Case No. 2016-002321 

Appeal From The Workers' Compensation Commission 

Opinion No. 5703 

Heard April 1, 2019 – Filed December 31, 2019 

AFFIRMED IN PART, REVERSED IN PART 

Carl H. Jacobson, of Uricchio Howe Krell Jacobson 

Toporek Theos & Keith, PA, of Charleston, for 

Appellant. 

John Gabriel Coggiola, of Willson Jones Carter & 

Baxley, P.A., of Columbia, for Respondents. 

MCDONALD, J.: David Lemon (Claimant) appeals the order of the Appellate 

Panel of the South Carolina Workers' Compensation Commission (the Appellate 

Panel), arguing it erred in offsetting his award of permanent and total disability 

benefits against prior benefits received for unrelated claims. We affirm in part and 

reverse in part. 
 

Facts and Procedural History1 

Claimant was involved in an admitted work accident on May 8, 2012, while 

pulling a device designed to provide leverage on a sewer line. He suffered an 

injury to his low back, affecting both legs. At the time of the accident, Claimant's 

average weekly wage was $636.04, yielding a compensation rate of $424.05 under 

the Workers' Compensation Act (the Act). Prior to the 2012 accident, Claimant 

suffered four separate workplace injuries resulting in workers' compensation 

claims against Mount Pleasant Waterworks (Employer) and the State Accident 

Fund (Carrier), including a March 4, 2009 injury to the back, an April 26, 2010 

injury to the right shoulder, an April 13, 2011 injury to the right shoulder, and an 

October 3, 2011 injury to the back. As a result of the four prior claims, Claimant 

received 199 weeks of compensation benefits, both as temporary and permanent 

disability benefits. 

Employer and Carrier (collectively, Respondents) provided Claimant with medical 

treatment through multiple medical providers, including Dr. James Aymond and 

Dr. Thomas Due. On June 20, 2013, Dr. Aymond found Claimant to be at 

maximum medical improvement (MMI) and assigned a 24% impairment to 

Claimant's back. On February 12, 2014, Dr. Due found Claimant to be at MMI and 

assigned him impairment ratings of 24% to the lumbar spine, 7% to the right lower 

leg, and 7% to the left lower leg. 

Claimant filed a Form 50 request for a hearing, alleging injuries to the back and 

legs and seeking permanent and total disability benefits and lifetime medical 

treatment. Respondents timely filed both a Form 51 response and a Form 21 

request for a hearing, seeking to stop payment of temporary compensation, a 

determination of permanent disability, and credit for overpayment of temporary 

compensation paid after the date of MMI. In addition, Respondents sought credit 

for the 199 weeks of benefits Claimant received in his four prior claims against 

Employer to be applied as an offset against his current award of permanent 

disability. 

Following a hearing, the Single Commissioner issued an order setting forth a 

number of findings, including: 

1. Based upon the greater weight of the evidence, the 

Claimant is permanently and totally disabled pursuant to 

1

 There are no factual issues in dispute. 
S.C. Code Ann. §42-9-10. The Claimant has sustained 

permanent injuries to more than one body part, namely, 

his back and both legs. As such, his claim for 

permanency is not restricted to the schedule of benefits as 

provided by S.C. Code Ann. §42-9-30. 

2. [Claimant] is entitled to lifetime causally related 

medical care. 

3. [Claimant's] May 8, 2012 work accident was his fifth 

work accident as an employee of Respondent Mount 

Pleasant Waterworks, and he has previously received 

temporary or permanent disability compensation in the 

amount of 199 weeks; 

4. By the date of the hearing, [C]laimant received 122 

weeks of temporary total disability benefits related to his 

May 8, 2012 work accident. 

The Single Commissioner found Claimant was entitled to an award of permanent 

and total disability;2

 however, he further found Respondents were entitled to 321 

weeks of credit against a maximum 500-week award of permanent and total 

disability benefits, including credit under § 42-9-170(B) for 199 weeks of benefits 

from Claimant's prior unrelated workers' compensation claims and credit for 122 

weeks of temporary disability benefits received on the current claim. 

Claimant filed a Form 30 request for Appellate Panel review, arguing 

§ 42-9-170(B) did not apply because the Single Commissioner awarded him 

permanent and total disability benefits under § 42-9-10(A), not § 42-9-10(B). 

Claimant further argued that even if § 42-9-170(B) applied, the Single 

Commissioner erred in failing to analyze each of the settlements of his prior claims 

to determine if there had been separate allocations of benefits paid for temporary 

total disability and permanent partial disability. 

The Appellate Panel heard oral argument and remanded the case to the Single 

Commissioner for (1) a determination of which subsection of § 42-9-10 the Single 

Commissioner applied in making the award in the present case; (2) a determination 

of the statutes under which prior awards were issued; and (3) any facts, analyses, 

 

2

 Respondents have not challenged this finding. 
or conclusions of law the Single Commissioner deemed necessary in the analysis 

of the § 42-9-170 determination. 

On remand, the Single Commissioner reaffirmed all previous findings of fact from 

his prior decision and order "not inconsistent with the instant opinion" and found: 

Claimant was permanently and totally disabled under § 42-9-10(A); Claimant's 

previous awards for injuries sustained with the same employer were awarded under 

§ 42-9-30; the phrase "receives a permanent injury" in § 42-9-170(B) referred to 

the present claim; and "another permanent injury in the same employment" 

referred to Claimant's prior injuries. The Single Commissioner concluded 

Claimant was subject to the 500-week cap on benefits and stated "upon expanding 

my research to other cases and statutes, I am even more convinced that the law 

allows that the [Respondents] be given a credit for all indemnity benefits paid 

during the Claimant's employment with Mt. Pleasant Waterworks." 

Claimant again requested Appellate Panel review, arguing the Single 

Commissioner erred in submitting a revised order that far exceeded the questions 

presented on remand. Claimant again argued the Single Commissioner erred in 

crediting Respondents for the 199 weeks of benefits Claimant received in his prior 

workers' compensation claims and in failing to analyze the prior claims. After 

hearing arguments, the Appellate Panel affirmed the Single Commissioner's second 

order. 

Standard of Review 

The Administrative Procedures Act provides the standard of judicial review for 

decisions of the Appellate Panel. Lark v. Bi-Lo, Inc., 276 S.C. 130, 133–35, 276 

S.E.2d 304, 306 (1981). "An appellate court can reverse or modify the 

Commission's decision if it is affected by an error of law or is clearly erroneous in 

view of the reliable, probative, and substantial evidence in the whole record." 

Pierre v. Seaside Farms, Inc., 386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010); see 

also S.C. Code Ann. § 1-23-380(5) (Supp. 2019). 

Law and Analysis 

Claimant concedes Respondents are entitled to credit for 122 weeks of temporary 

total disability benefits paid on his current claim, however, he challenges the credit 

of 199 weeks related to benefits paid on his four prior claims. Claimant asserts the 

Single Commissioner and Appellate Panel erred in applying § 42-9-170 to award 
this credit because § 42-9-170 addresses benefits awarded under § 42-9-10(B), not 

§ 42-9-10(A). We agree. 

Claimant's May 8, 2012 work accident was the fifth work accident for which he 

received workers' compensation benefits while working for the same employer. 

Claimant previously received a combined 25.4286 weeks of temporary disability 

benefits and 75 weeks of permanent partial disability (PPD) benefits as a result of 

two injuries by accident to his right shoulder in 2010 and 2011. Additionally, 

Claimant received a combined 23.5714 weeks of temporary benefits and 75 weeks 

of PPD benefits as a result of two injuries by accident to his back in 2009 and 

2011. Claimant received a total of 199 weeks of compensation benefits as a result 

of his four prior claims. 

Claimant correctly asserts that the Act is created by statute, and as such, "when 

reading a workers' compensation statute, we strictly construe its terms, leaving it to 

the Legislature to amend and define its ambiguities." Wigfall v. Tideland Utils., 

Inc., 354 S.C. 100, 110, 580 S.E.2d 100, 105 (2003); see also Nicholson v. S.C. 

Dep't of Soc. Servs., 411 S.C. 381, 385, 769 S.E.2d 1, 3 (2015) ("Workers' 

compensation law is to be liberally construed in favor of coverage in order to serve 

the beneficent purpose of [the Act]; only exceptions and restrictions on coverage 

are to be strictly construed."). 

Here, the Single Commissioner found Claimant is "permanently and totally 

disabled" pursuant to Section 42-9-10(A) of the South Carolina Code (2015), 

which provides: 

When the incapacity for work resulting from an injury is 

total, the employer shall pay, or cause to be paid, as 

provided in this chapter, to the injured employee during 

the total disability a weekly compensation equal to sixtysix and two-thirds percent of his average weekly wages, 

but not less than seventy-five dollars a week so long as 

this amount does not exceed his average weekly salary; if 

this amount does exceed his average weekly salary, the 

injured employee may not be paid, each week, less than 

his average weekly salary. The injured employee may 

not be paid more each week than the average weekly 

wage in this State for the preceding fiscal year. In no 

case may the period covered by the compensation exceed 
 

five hundred weeks except as provided in subsection 

(C).[3] 

Claimant submits the 500-week cap applies only to an injury arising from a single 

accident, not the sum of multiple accidents. Therefore, Claimant argues the injury 

he sustained as a result of this accident can result in a maximum award of 500 

weeks, offset by any benefits received for temporary total disability benefits paid 

on the same claim. Claimant does not dispute the credit awarded to Employer for 

the 122 weeks of temporary total disability benefits he received as a result of the 

current accident and injuries. 

However, Claimant challenges the application of the Act's language addressing 

permanent injuries sustained by an employee after he or she has sustained prior 

permanent injuries in the same employment. Section 42-9-170(B) states: 

If an employee receives a permanent injury as specified 

in section 42-9-30[4] or section 42-9-10(B)[5] after having 

sustained another permanent injury in the same 

employment, he is entitled to compensation for both 

injuries, but the total compensation must be paid by 

extending the period and not by increasing the amount of 

weekly compensation, and in no case exceeding 500 

weeks. If an employee previously has incurred 

permanent partial disability through the loss of a hand, 

arm, shoulder, foot, leg, hip, or eye, and by subsequent 

3

 Section 42-9-170(C) is inapplicable here. It provides, "Notwithstanding the fivehundred-week limitation prescribed in this section or elsewhere in this title, any 

person determined to be totally and permanently disabled who as a result of a 

compensable injury is a paraplegic, a quadriplegic, or who has suffered physical 

brain damage is not subject to the five-hundred-week limitation and shall receive 

the benefits for life." S.C. Code Ann. § 42-9-170(C). 

4

 Section 42-9-30 sets forth the schedule for which disabilities are deemed to 

continue and the resulting compensation paid for injuries to various parts of the 

body. 

5

 "The loss of both hands, arms, shoulders, feet, legs, hips, or vision in both eyes, 

or any two thereof, constitutes total and permanent disability to be compensated 

according to the provisions of this section." S.C. Code Ann. § 42-9-10(B). 
 

accident incurs total permanent disability through the loss 

of another member, the employer's liability is for the 

subsequent injury only, except that the employee may 

receive further benefits as provided under the provisions 

of section 42-9-35.[6] This subsection is effective on July 

1, 2008. 

S.C. Code Ann. § 42-9-170(B). 

Respondents persuasively argue that § 42-9-170(B) reflects the goal of our 

workers' compensation system to encourage employers to bring injured workers 

back to work after they have suffered certain compensable injuries. However, by 

its own terms, § 42-9-170 applies only to § 42-9-10(B) awards. See, e.g., 

Wyndham v. R.A. & E.M. Thornley & Co., 291 S.C. 496, 500, 354 S.E.2d 399, 402 

(Ct. App. 1987), overruled on other grounds by Medlin v. Greenville Cty., 303 S.C. 

484, 401 S.E.2d 667 (1991) (explaining "[w]hen the Legislature wished to impose 

a five hundred week limit on successive injuries, it did so explicitly."). 

Here, the Single Commissioner specified "the award in the present case is awarded 

under [§] 42-9-10(A)"; thus the Single Commissioner and Appellate Panel erred in 

applying § 42-9-170 to credit Respondents with 199 weeks of compensation paid 

for Claimant's prior benefits. 

Medlin v. Greenville County does not dictate a different result. There, the claimant 

suffered a work-related injury to his spine in 1983 and was found to have sustained 

a greater than fifty percent loss of use of his back, therefore entitling him to the 

maximum compensation of five hundred weeks for total and permanent disability 

under §§ 42-9-10 and 42-9-30(19) of the South Carolina Code. 303 S.C. 484, 486, 

401 S.E.2d 667, 667–68 (1991). Thereafter, the claimant returned to work for 

Greenville County. Id. In 1985, the claimant sustained a second work-related 

injury and again filed a claim for workers' compensation benefits, seeking total and 

permanent disability benefits. Id. Although the County admitted the second 

accident occurred, it denied the claimant was entitled to receive an award for 

permanent disability due to the prior award of total disability benefits for injury to 

the same body part injured in 1983. Id. Our supreme court explained: 

6

 Section 42-9-35 addresses evidence of preexisting injury or condition. 
 

 

This case is substantially the same as Hopper [v. 

Firestone Stores, et al., 222 S.C. 143, 72 S.E.2d 71 

(1952)], in that employee, having already suffered a total 

and permanent loss of use of a body part, specifically in 

this case, his back, as a result of his first accident, is 

seeking total and permanent benefits for a successive 

injury to the same body part. Under Hopper, we find that 

employee is not entitled to any further benefits for loss of 

use to the same body part as the loss of use to his back 

has already been fully "written-off," and is non-existent 

in so far as the Act is concerned. Thus, there is no basis 

upon which employee can recover. Only if employee 

had suffered less than fifty percent loss of use to his back 

in the first accident, would he have been entitled to 

compensation for the degree of disability which would 

have resulted from the later accident. These principles 

would hold true in any case regardless of whether the 

successive injury occurred while working for the same or 

different employers. To the extent that Wyndham v. R.A. 

& E.M. Thornley and Co., 291 S.C. 496, 354 S.E.2d 399 

(Ct. App. 1987) distinguishes between successive injuries 

incurred while working for the same rather than for 

different employers, it is overruled. 

303 S.C. 484, 488, 401 S.E.2d 667, 669 (1991).7 

Here, the Appellate Panel affirmed the Single Commissioner's second order finding 

Claimant permanently and totally disabled pursuant to § 42-9-10(A) and relied on 

§ 42-9-170(B) to cut Claimant's award. However, the plain language of § 42-9-170 

7 Medlin preceded the enactment of the 2007 statutes upon which Claimant's award 

is based. In any event, Medlin is inapplicable due to the plain language of § 42-9-

170(B), the Single Commissioner's finding that Claimant's award was made 

pursuant to § 42-9-10(A), and the Appellate Panel's finding that pursuant to § 42-9-

10(A), Claimant is permanently and totally disabled. 
 

renders it inapplicable to § 42-9-10(A). Thus, we reverse the decision of the 

Appellate Panel as to the 199-week credit.8 

Conclusion 

For the foregoing reasons, we affirm as to 122 weeks credited to Employer and 

reverse as to the 199 weeks. 

AFFIRMED IN PART, REVERSED IN PART. 

LOCKEMY, C.J. and SHORT, J., concur. 

8

 The 199-week offset is also troubling because neither the Single Commissioner 

nor the Appellate Panel undertook any analysis of the four prior claims to 

determine whether the injuries for which they awarded the 199-week credit were in 

any way related to the current claim as the back injury in Medlin was. For 

example, several of the payments apparently credited were for temporary total 

disability benefits, which § 42-9-170(B) does not address. Further, one of the prior 

settlement agreements referenced a 25% impairment to the right shoulder but had 

no designation as to the specific number of weeks. Claimant's injury here was to 

the low back, with bilateral leg pain.