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GWB Secures Significant Second Injury Fund Reimbursement for Client

Jared M. Pretulak
Pretulak Bio Webpage HS 10-7-13

Gallivan, White & Boyd (GWB) attorney Jared M. Pretulak secures a significant Second Injury Fund reimbursement award on behalf of his clients before the South Carolina Court of Appeals.  In South Carolina Second Injury Fund v. American Home Assurance Co. (In re Stroud v. John F. Stroud & Sons, Inc.), the issue before the Court pertained to the employer and carrier’s entitlement to full Second Injury Fund reimbursement for lifetime indemnity and medical treatment which had been awarded to the injured worker stemming from a work-related accident occurring on April 10, 2005.

The Second Injury Fund action stems from a work-related plane crash, occurring on April 10, 2005 whereby the injured worker suffered permanent physical brain damage and other traumatic injuries. Consequently, the injured worker was deemed permanently and totally disabled and subsequently awarded lifetime indemnity and medical benefits for his brain damage and other injuries.  In light of this significant award, the services of GWB were retained to initiate the Second Injury Fund reimbursement action.

Following a hearing at the Workers’ Compensation Commission, the Single Commissioner awarded full Second Injury Fund reimbursement pursuant to S.C. Code Ann. § 42-9-400, mandating reimbursement for indemnity and medical benefits awarded to the injured worker pursuant to his workers’ compensation claim.  The Second Injury Fund (hereinafter the Fund) subsequently and unsuccessfully appealed this award of reimbursement to the Full Panel of the South Carolina Workers’ Compensation Commission and later the Chesterfield County Court of Common Pleas.  The award of full Second Injury Fund Reimbursement was affirmed at both levels.  Finally, the Fund appealed the award to the South Carolina Court of Appeals, culminating in oral arguments before the Court on March 6, 2014.

During oral arguments, Pretulak worked to establish several theories upon which the award of Second Injury Fund reimbursement could be affirmed.  Through expert medical evidence and other evidence, he advocated that the reliable, probative and substantial evidence in the record proved the following:

  1. that the injured worker’s preexisting impairments of traumatic brain injury/brain damage and diabetes were serious enough to constitute a hindrance or obstacle to employment or reemployment, and
  2. that such impairments combined with or were aggravated by the injured worker’s subsequent work accident to result in greater liability to the employer and carrier in accordance with S.C. Code Ann. §§ 42-9-400.

Pretulak advocated that an award of full Second Injury Fund Reimbursement was proper under S.C. Code Ann. § 42-9-400(a) so long as the employer and carrier had established through reliable, probative, and substantial evidence the elements of reimbursement had been established with regard to any one of the multiple theories presented to the Court.

In rebuttal, the Fund directed the court to City of Greenville v. South Carolina Second Injury Fund, 339 S.C. 141, 528 S.E.2d 91 (Ct. App. 2000), essentially arguing that Second Injury Fund reimbursement should be denied in cases involving awards of permanent and total disability. Pretulak countered that City of Greenville and Stroud were factually distinguishable in that the employer and carrier in the City of Greenville had failed to satisfy each and every element of reimbursement.  He explained that in Stroud the employer and carrier had established all elements of reimbursement, and done so under multiple theories.  Accordingly, the burden then shifted to the Fund to rebut that evidence.  As the Fund had failed to present any evidence of its own, the reliable, probative, and substantial evidence pointed to only one logical outcome, an award of full Second Injury Fund Reimbursement.

Unmoved by the Fund’s arguments, the Court of Appeals fully affirmed the decision of the lower courts, granting full Second Injury Fund reimbursement to the employer and carrier, thus solidifying a significant victory for the client and ensuring full reimbursement to the employer and carrier for all benefits paid to the injured worker during his life.

 

South Carolina Second Injury Fund v. American Home Assurance Co. (In re Stroud v. John F. Stroud & Sons, Inc.), No. 2014-UP-227 (S.C. Ct. App. filed June 18, 2014)

 

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