Operator's goal of opening restaurant doesn't preclude wage loss benefits

In South Carolina, an injured worker's desire to open a restaurant is too speculative to show that he did not sustain a wage loss.

Case name: Hutson v. South Carolina State Ports Authority, No. 27171 (S.C. 09/19/12).

Ruling: The South Carolina Supreme Court held that an operator was entitled to wage loss benefits.

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What it means: In South Carolina, an injured worker's desire to open a restaurant is too speculative to show that he did not sustain a wage loss.

Summary: A crate operator injured his lower back and legs while attempting to remove a container from a ship. He was diagnosed with a disk bulge and spondylosis and underwent treatment. He claimed that he was entitled to benefits for permanent and total disability or a wage loss. A vocational specialist noted that the operator had a maximum sitting and standing capability of 15 minutes. The operator took a few courses at a technical college in business management, culinary arts, and food sanitation, but he never completed a degree or certification program. The operator said that he was interested in opening a restaurant, although he admitted that he had never previously run a restaurant and that doing so would require him to stand and sit for periods of time. The South Carolina Supreme Court held that the operator was entitled to wage loss benefits.

The court had to consider whether the operator's injury would prevent him from earning the wages he earned when he was injured in another job. The court pointed out that although the operator said he wanted to open a restaurant, he had no experience or an understanding of what doing so entailed. He could not testify as to what he could earn from his proposed venture. The court said that to use such "unsupported and wildly optimistic goals" to deny an injured worker wage loss benefits would punish a worker for "exploring the chance of overcoming an unanticipated injury by exploring other possible career options."

The court remanded the matter to the workers' compensation commission to determine the operator's earning capabilities upon his successful completion of a vocational rehabilitation plan.

A dissenting judge opined that the operator's failure to present evidence of income he expected to earn as a result of his change in profession supported a finding that he did not prove a wage loss.

Read more at the WorkersComp Forum homepage.

December 6, 2012

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