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Appellate Advocacy

Kirsten Barr joined Harold Trask and Roy Howell as an associate in 1998 and has been a partner in the firm since 2005. Barr leads Trask & Howell's appellate practice. She has been highly successful in representing employers and carriers before the South Carolina Court of Appeals and the South Carolina Supreme Court. In 2006, Barr was the only defense attorney appointed to serve on the Governor's Task Force on Workers' Compensation Reform, where she worked to introduce legislation to streamline the appellate process for South Carolina workers' compensation claims. For accidents after July 1, 2007, appeals from the Workers' Compensation Commission are now taken directly to the South Carolina Court of Appeals, where, unfortunately, a bad decision can mean bad law.

At Trask & Howell, we have the skill and experience to help you navigate the appellate process. Many firms have appellate lawyers, but at Trask & Howell, our appellate lawyers know workers' compensation defense. This has led to the following positive results for our clients:

To watch video of Barr arguing before the Supreme Court, click here.

Case summaries:

  • Dukes v. Rural Metro Corp., 356 S.C. 107, 587 S.E.2d 687 (2003):

Dukes was injured while examining a co-workers' personal gun while on a permitted smoking break when the gun accidentally discharged. The South Carolina Workers' Compensation Commission awarded compensation benefits, suggesting that the injury was covered under the "personal comfort doctrine" and the South Carolina Court of Appeals Affirmed. After oral argument by Kirsten Barr, the South Carolina Supreme Court reversed, holding that the injury did not "arise out of" the employment or any legitimate act of personal comfort. The case was a major win for employers and carriers, as it narrowed the spectrum of injuries covered by workers' compensation. The case has also been cited and discussed by Professor Larson in his treatise on workers' compensation law. However, it was not until we reached the highest court in the State that we could consider this very important and potentially very costly case a "success."

  • Bartley v. Allendale Co. School District, (2009 WL 56994 (S.C. App.):

Bartley sustained an admitted work-related neck injury and returned to full-duty work with a new employer. Though Bartley was entitled to an award of permanent loss of use of the neck, she was not disabled at the time she reached maximum medical improvement because she was able to work despite her neck injury and despite some other pre-existing problems (depression, headaches). After returning to work for the new employer, her depression and headaches worsened and she required a non-work-related low back injury, requiring surgery. She was subsequently disabled from any employment.

Bartley argued that under Ellison v. Frigidaire Home Products, 371 S.C.159, 638 S.E.2d 664 (2006) the Allendale County School District was liable for her permanent and total disability because it was produced by the combination of her work injury and her other personal aliments. We prevailed with a published opinion by the South Carolina Court of Appeals. The Court limited Ellison to serious pre-existing conditions that were a hindrance or obstacle to employment prior to the work accident. The Employer is not responsible for the potentially disabling effect of ailments or injuries. This is a very good decision for South Carolina employers and should limit effects of the very liberal Ellison decision.

  • Geathers v, 3V, Inc., 371 S.C.570, 641 S.E.2d 29 (2007):

Geathers sustained a back injury on the job and filed a workers' compensation claim. The claim was accepted, medical benefits were provided, and upon release by doctors, Geathers returned to her regular full duty job. Thereafter, her Employer changed workers' compensation insurance carriers and Geathers re-injured her back on the job. The Commission ordered both carriers share liability for medical and compensation benefits after the second accident. We successfully argued to the South Carolina Supreme Court that our carrier's liability for medical and disability compensation ended as of the second accident date because (1) Geathers was not disabled (i.e. she was able to work) before the second accident and (2) Geathers did not require additional medical treatment until the second accident. Because the second accident was the proximate cause of the medical treatment and disability, the carrier at the time of the second accident is the only carrier responsible for benefits despite the fact that the injury was at least in part pre-existing. This decision has been very helpful in minimizing litigation in successive injury claims.

  • Sanders v. MeadWestvaco Corp., 371 S.C. 284, 638 S.E.2d 66 (Ct. App. 2006) (certiorari granted 2007)(certiorari dismissed as improvidently granted after oral arguments, 2009):

Sanders sustained a minor low back injury after tripping over a piece of wood. He received only conservative treatment and was released with 2% whole person impairment rating by his treating physician, who suspected malingering. Dr. Seastrunk, his IME doctor, stated he was not at maximum medical improvement, but issued a 22% whole person impairment rating nonetheless. The Workers' Compensation Commission awarded Sanders benefits for a "40% loss of use of the lumbar spine and SI joint as a result of chronic pain and a potential need for surgery." The Commission also denied MeadWestvaco's request for a credit for overpayment of temporary total disability compensation paid after the date of maximum medical improvement, because the Commission failed to hold a stop payment hearing within 60 days.

The South Carolina Court of Appeals agreed with our argument that the Workers' Compensation Commission may not arbitrarily deny a credit for overpayment of temporary total disability compensation. This means that, in most cases, an employer will be entitled to a credit for all temporary benefits paid after the date of maximum medical improvement unless there is "substantial evidence to the contrary."

In addition, the Court of Appeals agreed with our argument that the award of 40% was speculative and that "a potential need for surgery" is not a proper basis upon which to award scheduled benefits under S.C. Code Ann. § 42-9-30. The Court of Appeals reversed the award and remanded the case to the Workers' Compensation Commission for "a determination of the degree of impairment Sanders suffered to his back." The language of this ruling is very important in that it clearly links scheduled awards to medical "impairment" and requires the Commission to consider only factors affecting the Claimant's physical loss of use in making such awards.

The South Carolina Supreme Court granted the Claimant's Petition for Writ of Certiorari and Kirsten Barr presented oral arguments to the Supreme Court on behalf of MeadWestvaco. One week later, the Supreme Court dismissed the case, remanding it back to the Workers' Compensation Commission in accordance with Order of the Court of Appeals.

  • Tennant v. Beaufort County School District, 381 S.C. 617, 674 S.E.2d 488 (2009):

Tennant, a special education teacher, claimed to have a mental injury as a result of stress related to working with two underperforming and insubordinate teachers' aides. Tennant's doctor's related her "situational depression and panic disorder" to her employment. The Workers' Compensation Commission denied the claim on the basis that the conditions of Tennant's employment were not extraordinary or unusual. The Circuit Court and the South Carolina Court of Appeals affirmed. Thereafter, the South Carolina Supreme Court granted Tennant's Petition for Writ of Certiorari, which often means that the Supreme Court intends to reverse the Court of Appeals.

After Kirsten Barr presented oral arguments, the Supreme Court affirmed the Workers' Compensation Commission. The Supreme Court further clarified that, to be compensable, a mental injury must "involve much more extreme and severe facts," such as death threats, gun incidents, or extreme prolonged worked hours with increased responsibilities. This is an important pro-employer decision and will hopefully serve to decrease the number of mental injury claims in South Carolina.

  • Brayboy v. Workforce, 383 S.C. 463, 681 S.E.2d 567 (2009):

Brayboy injured his low back while pulling up a chain link fence on assignment from his employer, Workforce, which is a temporary employment agency. While investigating the claim, we discovered that Brayboy had an extensive history of prior back problems, including a disability claim against the Veterans' Administration and at least one prior workers' compensation claim. However, Brayboy denied any history of back problems, denied prior treatment for his back, and denied having any prior workers' compensation claims when he completed a medical history questionnaire in conjunction with his employment application. We argued that Brayboy fraudulently induced his employment and was not entitled to workers' compensation benefits. The Workers' Compensation Commission awarded the claim and overlooked the fraud on the basis that Brayboy, himself, believed that he could do any job given to him by WorkForce.

We prevailed before the South Carolina Court of Appeals, which recognized that the issue of whether an employee has fraudulently-induced his employment is a jurisdictional question in workers' compensation claims, made its own findings that the Claimant's employment contract was void and that Brayboy's injury was the direct result of his fraudulent statements about his medical history. Shortly thereafter, the South Carolina Court of Appeals withdrew its decision and the case was certified to the South Carolina Supreme Court.

After lengthy oral arguments, the Supreme Court agreed with the Court of Appeals and denied the claim in its entirety. According to the Supreme Court, "the suggestion that Brayboy could make material misrepresentations on his employment application because he believed he was fit for construction work is a specious position." In other words, the Workers' Compensation Commission is not at liberty to excuse fraud and must otherwise protect an employer's right to make informed decisions about job placement and risk management. This is a very important position, as only weeks before the South Carolina Supreme Court issued its opinion, the North Carolina Supreme Court ruled that such fraud does not bar a workers' compensation claim.