SC Workers’ Compensation – Second Injury Fund – A Second Chance

Feb 25, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals case discusses the interplay between insurance carriers and the SC Second Injury Fund. Before the federal prohibition against disability discrimination, South Carolina protected previously injured workers through the establishment of this Fund. Basically, it was a way to protect businesses from pre-existing injury claims while at the same time encouraged the hiring of those individuals who had been hurt on the job in the past. All businesses paid into this Fund to create a pool of money from which to draw if certain conditions were  satisfied. If a claim was accepted, a substantial reimbursement of medical and other costs paid could be given. Because of this reimbursement, employers did not have to fear hiring someone with a prior disability, and previously injured workers could find new employment after a work related accident. Workers’ compensation laws in SC are generally favorable to injured claimants. However, contrary to perception by many lawyers, this area of the law is quite complex, and attorneys who take cases randomly can easily make serious mistakes that compromise their clients’ claims. Better make sure your attorney regularly practices workers’ compensation law and really knows what they are doing. If not, you will be the one who pays the ultimate price. Your claim is too important to risk an inexperienced lawyer.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former intensive care unit Registered Nurse (RN) who has actually treated patients with the same type of serious injuries he now represents in workers’ compensation cases.  Both Robert J. Reeves and Arthur K. Aiken are former insurance defense attorneys who know what to anticipate and how to prepare for trial and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have handled virtually every type of workers’ compensation injury, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, automobile accidents on the job, psychological / post traumatic stress, permanent and total disability claims, and wrongful death. We welcome the opportunity to sit down and personally discuss your case. Compare our attorneys’ credentials to any other firm. Then call us for a private consultation. www.rjrlaw.com

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State Accident Fund, Appellant,

v.

South Carolina Second Injury Fund, Respondent.

[In Re: Clinton Gaskins, Employee/Claimant,

v.

Pee Dee Regional Transportation Authority, Employer.]

Appeal From Florence County
Honorable Thomas A. Russo, Circuit Court Judge

Opinion No. 4684
Heard April 15, 2010 – Filed May 5, 2010

AFFIRMED

Mary Sowell League, of Columbia, for Appellant.

Latonya D. Edwards, of Columbia, for Respondent.

PER CURIAM: The State Accident Fund (Carrier) sought reimbursement from the South Carolina Second Injury Fund (the Fund) for monies Carrier paid to Clinton Gaskins for a stroke he suffered during surgery for a work-related back injury.  The Fund and the single commissioner denied Carrier’s claim as it related to monies paid for the stroke.  Both the Appellate Panel of the Workers’ Compensation Commission (Appellate Panel) and the circuit court affirmed.  We affirm.

FACTS

On January 30, 2002, while employed by Pee Dee Regional Transportation Authority, Gaskins suffered a work-related back injury.  Gaskins already suffered from degenerative disk disease and stenosis of the lumbar spine.  On May 9, 2002, Gaskins underwent surgery to treat his back problems.  During this surgery, he suffered a stroke that resulted in permanent brain injury.  Carrier initially denied coverage for the stroke as not causally related to the back problems, and Gaskins, his employer, and Carrier presented arguments to the single commissioner on the issue of causation.[1]

In the meantime, Carrier presented the Fund with its claim for reimbursement of monies paid for Gaskins’s back surgery.  On November 29, 2004, the Fund agreed to reimburse Carrier in an agreement that specified:

Nature of Injury: BACK
Nature of Prior Impairment:  DDD/LUMBAR
SPINAL STENOSIS/LUMBAR

The terms of this agreement are that the said STATE ACCIDENT FUND shall receive reimbursement of:

IN ACCORDANCE WITH THE PROVISIONS OF SECTION 42-9-400.

FOR THE LUMBAR SPINE ONLY

This agreement is in full and complete satisfaction of any and all claims by STATE ACCIDENT FUND against Second Injury Fund for the above referenced accident claim.

The Workers’ Compensation Commission (Commission) approved this agreement.  Neither party challenged the Commission’s approval.

One month after Carrier and the Fund signed the Agreement to Reimburse (Agreement), the single commissioner issued an order finding the stroke was causally related to the back injury in the action involving Gaskins, his employer, and Carrier.  On May 23, 2005, the single commissioner entered a consent order reflecting the agreement among Gaskins, his employer, and Carrier that Gaskins was entitled to $200,000 and all medical care causally related to his injuries.  The Fund was not a party to this agreement.

Nearly two years later, on September 25, 2006, Carrier requested reimbursement under the Agreement for monies paid to Gaskins for the stroke he suffered during back surgery, which Carrier asserted was causally connected to the back injury.  The Fund denied this request.  At the hearing before the single commissioner, Carrier presented evidence from the previous hearing regarding Gaskins’s treating physicians that supported its argument the stroke was causally related to the back surgery.  In addition, Carrier argued it relied upon the Fund’s past practice of including causally related injuries in those covered by its settlement agreements.  Finally, Carrier questioned the validity of the Agreement based upon the Fund’s change in practice and the fact only one commissioner, rather than a majority, approved the Agreement.[2]  The Fund argued the medical reports did not establish a sufficient causal connection between the back injury and the stroke to justify amending the Agreement to cover the stroke.  The single commissioner denied Carrier’s claim on the basis that the Agreement’s language excluded injuries other than to the lumbar spine and declined to reach the issue of causation.  The Appellate Panel affirmed the denial.

Before the circuit court, Carrier argued the statute referenced in the Agreement covered causally related conditions.  Because its refusal to amend the agreement represented a departure from the Fund’s usual practice, Carrier argued, the Fund should be estopped from refusing to amend and the issue of causal relation should be litigated before the Appellate Panel.  Furthermore, according to Carrier, the Appellate Panel committed reversible error by basing its decision upon an unpublished opinion of this court.  The Fund protested that Carrier actually sought to void the contract.  The circuit court affirmed the denial of Carrier’s claim and denied Carrier’s motion to reconsider this ruling.  This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act establishes the standard for judicial review of decisions of the Commission. Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct. App. 2005).  In reviewing decisions of the Commission, the appellate court must ascertain “whether the circuit court properly determined whether the [A]ppellate [P]anel’s findings of fact are supported by substantial evidence in the record and whether the [Appellate P]anel’s decision is affected by an error of law.”  Baxter v. Martin Bros., Inc., 368 S.C. 510, 513, 630 S.E.2d 42, 43 (2006) (citations omitted); see also S.C. Code Ann. § 1-23-380(5) (Supp. 2009) (establishing the standard for judicial review of agency decisions).  Substantial evidence is not a mere scintilla of evidence, nor is it evidence viewed blindly from one side of the case; rather, it is “evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action.” Liberty Mut., 363 S.C. at 620, 611 S.E.2d at 300.  “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.”  Id. at 620, 611 S.E.2d at 301.  Where conflicts in the evidence exist over a factual issue, the findings of the Appellate Panel are conclusive.  Id. at 620, 611 S.E.2d at 301.

LAW/ANALYSIS

I.  Coverage of Stroke under the Agreement

Carrier asserts the circuit court erred in affirming the Appellate Panel’s finding the Agreement did not cover Gaskins’s stroke as a consequence flowing from the back injury.  We disagree.

The Fund was established by statute and reimburses employers and insurance carriers after they pay certain claims.  S.C. Code Ann. § 42-7-310 (Supp. 2009).  To qualify for reimbursement, an employer or carrier must timely provide the Fund with certain information.  S.C. Code Ann. § 42-9-400(a), (c), (f), & (l) (Supp. 2009).  When a permanently disabled employee:

[I]ncurs a subsequent disability from injury by accident arising out of and in the course of his employment, resulting in compensation and medical payments liability or either, for disability that is substantially greater and is caused by aggravation of the preexisting impairment than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall pay all awards of compensation and medical benefits provided by this title; but such employer or his insurance carrier shall be reimbursed from the Second Injury Fund . . . .

§ 42-9-400(a).  “Permanent physical impairment” refers to “any permanent condition, whether congenital or due to injury or disease, of such seriousness as to constitute a hindrance or obstacle to obtaining employment or to obtaining reemployment if the employee should become unemployed.”  S.C. Code Ann. § 42-9-400(d) (Supp. 2009).  If a claimant suffering from a permanent physical impairment most probably would not have suffered the subsequent injury “‘but for’ the presence of the prior impairment,” the Fund must reimburse an employer or carrier for properly requested compensation and medical benefits without regard to whether the liability is “substantially greater than that which would have resulted from the subsequent injury alone.”  S.C. Code Ann. § 42-9-400(g) (Supp. 2009).

The Fund “shall not be bound as to any question of law or fact” determined in an agreement, award, or adjudication to which it was not a party or of which it had less than twenty days’ notice.  S.C. Code Ann. § 42-9-400(e) (Supp. 2009).  The Fund “can enter into compromise settlements at the discretion of the director with approval of a majority of the Workers’ Compensation Commission, provided a bona fide dispute exists.”  S.C. Code Ann. § 42-9-400(j) (Supp. 2009).

Section 42-9-400(a) mandates that Carrier “shall” pay for Gaskins’s subsequent injuries and that the Fund “shall” reimburse Carrier for those payments.  However, subsection (j) of the same statute enables the Fund to enter into compromise agreements with carriers limiting the Fund’s obligations.  Here, Carrier and the Fund entered into just such a compromise agreement as to the payments Carrier made related to Gaskins’s back injury.  The terms of the Agreement clearly indicate the parties did not contemplate extending its coverage to any causally connected injuries that might have followed.  Moreover, the record indicates at the time the Agreement was made, Carrier still disputed its liability for Gaskins’s stroke.  Although Carrier knew Gaskins was seeking coverage for the stroke, the single commissioner did not find Carrier liable for medical benefits related to the stroke until a month after the Agreement was made.  At the time of the Agreement, Carrier knew the issue of its liability for the stroke remained unresolved.  Had Carrier intended to seek reimbursement for stroke expenses from the Fund under the subject Agreement, it had ample opportunity to negotiate this issue with the Fund.  However, the record does not indicate Carrier proposed adding to the Agreement any language addressing this issue or otherwise sought reimbursement from the Fund until two years later.  Consequently, the circuit court did not err in affirming the Appellate Panel’s exclusion of stroke-related expenses from the Agreement.[3]

II.  Voidness

Next, Carrier asserts the circuit court erred in failing to find the Agreement is void because no meeting of the minds occurred at the Agreement’s inception.  We disagree.

Whether the language of a contract is ambiguous is a question of law to be determined by the court from the terms of the contract as a whole.  Silver v. Aabstract Pools & Spas, Inc., 376 S.C. 585, 591, 658 S.E.2d 539, 542 (Ct. App. 2008).  In making this determination, the court must examine the entire contract and not merely whether certain phrases taken in isolation could be interpreted in more than one way.  Id.  “‘[O]ne may not, by pointing out a single sentence or clause, create an ambiguity.'”  Id.(quoting Yarborough v. Phoenix Mut. Life Ins. Co., 266 S.C. 584, 592, 225 S.E.2d 344, 348 (1976)).

“In construing and determining the effect of a written contract, the intention of the parties and the meaning are gathered primarily from the contents of the writing itself, or, as otherwise stated, from the four corners of the instrument, and when such contract is clear and unequivocal, its meaning must be determined by its contents alone; and a meaning cannot be given it other than that expressed. Hence words cannot be read into a contract which import an intent wholly unexpressed when the contract was executed.”

Id. (quoting McPherson v. J.E. Sirrine & Co., 206 S.C. 183, 204, 33 S.E.2d 501, 509 (1945)).

Carrier’s argument is essentially that the Agreement should be void because the coverage language within it contains an ambiguity.  Carrier avers it understood the coverage included both the lumbar spine and other causally related injuries because it believed the Fund covered other claimants’ causally related injuries.  The Fund argues the coverage was limited to the lumbar spine, only.  The alleged ambiguity springs not from the terms of the Agreement itself, but from Carrier’s observations of Fund behavior in matters unrelated to Gaskins’s claims.  According to Carrier, the Fund agreed to pay causally related expenses of other claimants after executing agreements similar to this one.[4]  However, no evidence indicates that Carrier was a party to any of these other agreements or that the Fund represented to Carrier it would pay for Gaskins’s stroke.  Therefore, the circuit court did not err in refusing to declare the Agreement void.

III.  Estoppel

Carrier asserts the circuit court erred in failing to find the Fund is estopped from denying reimbursement for Gaskins’s stroke.  We disagree.

Courts apply the doctrine of equitable estoppel when one party, “by his actions, conduct, words or silence which amounts to a representation, or a concealment of material facts, causes another to alter his position to his prejudice or injury.”  Rushing v. McKinney, 370 S.C. 280, 293, 633 S.E.2d 917, 924 (Ct. App. 2006) (quoting Hubbard v. Beverly, 197 S.C. 476, 480, 15 S.E.2d 740, 741 (1941)).  For equitable estoppel to apply, each party must meet certain criteria:

With regard to the party estopped, the elements of equitable estoppel are: (1) conduct amounting to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) the intention or expectation that such conduct shall be acted upon by the other party; and (3) actual or constructive knowledge of the real facts.  As related to the party claiming the estoppel, the essential elements are:  (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question, (2) reliance upon the conduct of the party estopped, and (3) prejudicial change in position.

Id. at 293-94, 633 S.E.2d at 924 (internal citations and quotations omitted).  However, a court will not rescind a contract solely on the basis of unilateral mistake unless the party opposing rescission induced the mistake “by fraud, deceit, misrepresentation, concealment, or imposition . . . , without negligence on the part of the party claiming rescission, or where mistake is accompanied by very strong and extraordinary circumstances which would make it a great wrong to enforce the agreement.”  Truck South, Inc. v. Patel, 339 S.C. 40, 49, 528 S.E.2d 424, 429 (2000).

Equitable estoppel applies when each party meets three conditions.  Rushing, 370 S.C. at 293-94, 633 S.E.2d at 924.  One of those conditions requires that the party to be estopped must have exhibited misleading conduct during formation of the agreement with the intent or expectation the complaining party would rely on it.  Id.  Here, Carrier argues the Fund should be estopped from limiting reimbursement to monies paid for Gaskins’s back injury because the Fund did not notify Carrier that it ceased its practice of reimbursing for causally related injuries.  However, Carrier failed to establish the Fund made any representations with regard to reimbursement for Gaskins’s injuries other than those reflected in the Agreement.  Carrier bases its estoppel argument on the Fund’s payment of other, unrelated claims.  The details of these claims and of the Fund’s reasoning in paying them are unknown.  Furthermore, even if the Fund did suddenly change its policy, which it denies,^[5] no evidence indicates the Fund did so with the intention of inducing Carrier to rely on its past behavior in making the subject Agreement.  Rather, in this case, Carrier appears to have made a unilateral mistake in assuming the Fund would agree to cover benefits paid for the stroke under the current Agreement.  See Truck South, 339 S.C. at 49, 528 S.E.2d at 429.  Despite Carrier’s argument to the contrary, strong and extraordinary circumstances militating in favor of rescission do not exist here.  As a result, Carrier failed to establish the Fund’s actions merited equitable estoppel, and the circuit court did not err.

CONCLUSION

We find Carrier and the Fund executed an Agreement that clearly set forth the contours of their compromise agreement.  Furthermore, we find that, despite having knowledge of the expenses and ample opportunity to request their inclusion, Carrier failed to seek inclusion of the stroke expenses in the terms of the Agreement.  Therefore, we affirm the circuit court’s decision that the Agreement did not cover Carrier’s expenses flowing from Gaskins’s stroke.

Next, we find the terms of the Agreement are clear and unequivocal.  An ambiguity originating not in the terms of this Agreement but in Carrier’s observations of Fund behavior in other, unrelated matters is not a legal basis for declaring the Agreement void.  Accordingly, we affirm the circuit court’s determination that the Agreement is not void.

Finally, we find Carrier failed to prove all necessary elements of its claim for estoppel.  Consequently, we affirm the circuit court’s refusal to apply equitable estoppel to this matter.  For the foregoing reasons, the order of the circuit court is

AFFIRMED.

PIEPER and GEATHERS, JJ., and CURETON, A.J., concur. 

[1] The Fund was not a party to this proceeding.

[2] See S.C. Code Ann. § 42-9-400(j) (Supp. 2009) (authorizing the Fund to enter into settlement agreements “at the discretion of the director with approval of a majority of the Workers’ Compensation Commission”).

[3] We do not base this ruling upon the Fund’s argument that this Agreement was a “clincher.”  By definition, a clincher agreement is a final release between the employer and employee.  25A S.C. Code Ann. Reg. 67-801(E) (Supp. 2009).  A court is without jurisdiction to review a clincher agreement that includes language precluding judicial review and that has been duly approved by the Commission.  Spivey ex rel. Spivey v. Carolina Crawler, 367 S.C. 154, 159, 624 S.E.2d 435, 437 (Ct. App. 2005).  This Agreement, made between Carrier and the Fund, neither fits the definition of a clincher nor includes the necessary language depriving the court of jurisdiction.

[4] This argument appears to be more in the nature of an estoppel argument.

[5] On appeal, the Fund asserts it does not have a custom or practice of reimbursing employers and carriers for expenses not indicated in its settlement agreements.  However, the Fund admits that it agreed to amend some settlement agreements under certain circumstances.

SC Workers’ Compensation – Accident Claim Investigation – Limited Time to Complete

Feb 12, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

The article below is a summary and commentary written by Stanford E. Lacy of Collins & Lacy, P.C. in Columbia, South Carolina. It is located on his firm’s website and blogosphere. I am proud to be counted as one of Stan’s biggest fans and routinely follow his sage postings. I will always appreciate Stan for giving me my first job as an attorney and training me in workers’ compensation law. Although written from a defensive perspective, this recent case confirms that claimant’s attorneys must also investigate claims early and secure evidence to prove a case is compensable. He can also hold employers and their insurance carriers accountable before the Commission if they improperly stop paying weekly benefits after 150 days from the date of accident. Because the law only provides that an injured worker can receive only 2/3 of their average weekly wage, every check matters. No one pays 1/3 in taxes, at least not yet. As a result, you find yourself “getting behind” each week. Having a carrier abruptly stop paying without following the law can literally cost you and your family everything. Better make sure your attorney knows about this case and what to do to protect you. Compare our attorneys’ credentials to any other law firm.

SC Workers’ Compensation – Additional Medical Treatment After Release From Care

Feb 12, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals decision deals with an issue that comes up frequently in workers’ compensation cases. An injured worker is initially released from care by the authorized treating physician and tries to return to work. However, due to ongoing symptoms, the worker seeks additional medical treatment only to be denied by the insurance carrier. At what point can an employer stop paying weekly benefits if the injured worker tries to return to work but cannot continue? And what happens if the employee is fired from their job during this recovery period?  In this case, the Court of Appeals found because Claimant had returned to work for more than 15 days after the accident and because the employer had provided suitable employment within his restrictions during that time, Section 42-9-260(B)(1) did not require restart of  weekly benefits after Claimant’s termination. The Court also addressed the interplay between awards for disfigurement and permanent impairment. In some cases, a claimant may be entitled to receive awards for both. Better make sure your attorney is aware of these critical distinctions in the law. Compare our attorneys’ credentials to any other law firm.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Beau D. Cranford, Employee, Appellant,

v.

Hutchinson Construction, Employer, and Companion Property & Casualty Group, Carrier, Respondents.

Appeal From Richland County
Appellate Panel, Workers’ Compensation Commission

Opinion No.  4939
Heard December 6, 2011 – Filed February 8, 2012

AFFIRMED IN PART and REMANDED IN PART

Stephen B. Samuels, of Columbia, for Appellant.

Michael W. Burkett, of Columbia, for Respondents.

WILLIAMS, J.: In this workers’ compensation appeal, Beau Cranford (Cranford) challenges the Appellate Panel of the Workers’ Compensation Commission’s (Appellate Panel) findings that he was not entitled to temporary disability compensation, permanent partial disability compensation, and additional medical treatment for injuries he incurred while working for his employer, Hutchinson Construction (Hutchinson).  Additionally, Cranford contends the Appellate Panel erred in failing to make specific findings regarding whether he had reached maximum medical improvement (MMI) and in implicitly finding he had reached MMI.  We affirm in part and remand in part.

FACTS

Cranford’s claim for benefits and medical treatment stems from an injury he sustained while working for Hutchinson.  Hutchinson hired Cranford on June 26, 2007, as a day laborer, to assist in assembling a steel building at one of Hutchinson’s project sites.  On July 20, 2007, Cranford was working in a forklift basket approximately ten feet above ground.  Cranford testified the basket was lowered to the ground, and his co-worker climbed out of the basket.  When Cranford was raised back in the air, the basket began to tilt forcing Cranford to jump out of the basket.  Cranford sustained injuries to both hands, both arms, and his back as a result of the fall.

Cranford was taken immediately to Conway Medical Center for treatment.  Dr. Michael Ellis treated the lacerations on Cranford’s arms and noted Cranford complained of mid-lumbar pain when he would sit upright.  Dr. Ellis discharged Cranford with instructions to refrain from “heavy lifting or strenuous activity” and to return the following week.  At his follow-up visit, Dr. Ellis’ notes reflect he instructed Cranford to “be taking it easy” and to notify Dr. Ellis if he experienced any additional problems.

Cranford was out of work for three weeks, during which time Hutchinson paid him $265 per week in lieu of temporary disability benefits.  When Cranford returned to work on August 13, 2007, Hutchinson restricted him to light-duty activities, but then Hutchinson terminated Cranford on August 31, 2007, for being unsafe on the job site.  Because Cranford had worked a minimum of fifteen days prior to his termination, Hutchinson filed a Form 15 claiming he was no longer entitled to temporary compensation.

After Hutchinson fired Cranford, he obtained employment with a greenhouse from early September until November 21, 2007.  While working at the greenhouse, Cranford made deliveries, watered plants, and lifted fifty to sixty pound bags of fertilizer two to four times per day twice a week.  He earned on average $163.96 per week.

Cranford’s complaints of back pain resurfaced following his brief employment with the greenhouse.  In response to his complaints of back pain, Hutchinson sent him to Doctor’s Care on January 11, 2008.  Doctor’s Care restricted him from lifting more than ten pounds and instructed him to return for a follow-up visit in one week.  Cranford returned ten weeks later on March 25, 2008. Doctor’s Care then referred him to an orthopedic surgeon, Dr. William Edwards.[1]   

Cranford saw Dr. Edwards on May 15, 2008, with lower back complaints.  Dr. Edwards’ notes reflect that Cranford told him he had been out of work since his initial injury.  Dr. Edwards ordered an MRI on May 21, 2008, and Cranford returned to Dr. Edwards on June 3, 2008.  On June 3, 2008, Dr. Edwards concluded Cranford had reached MMI with no evidence of permanent impairment.  Dr. Edwards noted Cranford could return to work with “the use of good body mechanics and careful lifting techniques.”

Upon referral from Cranford’s attorney, Cranford underwent a subsequent evaluation with Dr. Timothy Zgleszewski on July 22, 2008.  Dr. Zgleszewski diagnosed Cranford with sacroiliitis and opined to a reasonable degree of medical certainty that Cranford was not at MMI and should remain out of work until further testing and treatment were completed.  Hutchinson refused to provide the treatment recommended by Dr. Zgleszewski.

After Cranford saw Dr. Edwards and Dr. Zgleszewski, he briefly worked at a machinery plant as a machine operator from September 12, 2008 until November 7, 2008.  He testified this position did not require any heavy lifting responsibilities.  Cranford earned $469.98 per week as a machine operator before he was laid off by the machinery plant. 

In response to Hutchinson’s refusal to provide additional medical treatment, Cranford filed a Form 50 on January 15, 2009, in which he requested a hearing as well as additional medical treatment for his back and arms and temporary disability benefits.  In response, Hutchinson timely filed a Form 51, admitting laceration/disfigurement to the right and left arms and an injury to the back.  Hutchinson, however, maintained Cranford reached maximum medical improvement (MMI) for all injuries and denied Cranford was entitled to temporary disability benefits.

Prior to Cranford’s hearing, he again returned to Dr. Zgleszewski on April 23, 2009, with complaints of reoccurring lower back pain, occasional numbness in his hands, and problems with lifting and twisting.  Dr. Zgleszewski opined Cranford suffered a 10% impairment rating to his back and a 9% whole person impairment rating based on the scars on his arms.

The single commissioner held a hearing on May 14, 2009.  The commissioner subsequently issued an order on September 28, 2009, awarding Cranford four weeks of compensation to his left arm and eight weeks of compensation to his right arm for the disfigurement caused by his fall.  The commissioner agreed with Dr. Edwards’ conclusions that Cranford had suffered no permanent impairment to his back and consequently found a 0% disability to Cranford’s back.  In addition, the single commissioner found Cranford failed to demonstrate by a preponderance of the evidence that he was entitled to any temporary disability benefits or additional medical treatment.  Cranford appealed the single commissioner’s order, and in a form order, the Appellate Panel affirmed the single commissioner in full.  This appeal followed.

STANDARD OF REVIEW

The Administrative Procedures Act (APA) establishes the standard for judicial review of workers’ compensation decisions.  Pierre v. Seaside Farms, Inc., 386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010).  Under the APA, this court can reverse or modify the decision of the Appellate Panel when the substantial rights of the appellant have been prejudiced because the decision is affected by an error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence considering the record as a whole. Transp. Ins. Co. & Flagstar Corp. v. S.C. Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687, 689-90 (2010).

When the evidence is conflicting over a factual issue, the findings of the Appellate Panel are conclusive.  Hargrove v. Titan Textile Co., 360 S.C. 276, 290, 599 S.E.2d 604, 611 (Ct. App. 2004).  In workers’ compensation cases, the Appellate Panel is the ultimate finder of fact.  Shealy v. Aiken Cnty., 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).  “The final determination of witness credibility and the weight to be accorded evidence is reserved to the Appellate Panel.”  Frame v. Resort Servs. Inc., 357 S.C. 520, 528, 593 S.E.2d 491, 495 (Ct. App. 2004) (internal citation omitted).  Accordingly, this court will not overturn a finding of fact by the Appellate Panel “unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding was based.”  Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981) (internal citation omitted).

LAW/ANALYSIS

I.  Temporary Disability Compensation

Cranford first claims the Appellate Panel erred in failing to order Hutchinson to pay him temporary disability benefits.  We disagree.

Section 42-1-120 of the South Carolina Code (1985) defines disability as the “incapacity because of injury to earn the wages which an employee was receiving at the time of the injury in the same or some other employment.”  During the period of disability, an employer may pay temporary total or partial compensation, or salary in lieu of compensation, to the injured employee.  See 25A S.C. Code Ann. Regs. 67-503(B) (Supp. 2010).  Whether compensation is partial or total depends on whether the employee is partially or totally incapacitated from the injury.  See S.C. Code Ann. §§ 42-9-10, -20 (1985 & Supp. 2010), 25A S.C. Code Ann. Regs. 67-502(E), (F) (Supp. 2010).

Temporary disability benefits are triggered “[w]hen an employee has been out of work due to a reported work-related injury . . . for eight days[.]”  S.C. Code Ann. § 42-9-260(A) (Supp. 2010).  Once temporary disability payments have commenced, these benefits “may be terminated or suspended immediately at any time within the one hundred fifty days if . . . the employee has returned to work; however, if the employee does not remain at work for a minimum of fifteen days, temporary disability payments must be resumed immediately[.]”  S.C. Code Ann. § 42-9-260(B)(1) (Supp. 2010).

Cranford claims he was not released to work without restriction, and Hutchinson failed to provide him suitable employment during his period of incapacity.  Although Cranford was under work restrictions at the time he returned to work, we find Cranford failed to prove he was entitled to temporary disability benefits.  Hutchinson afforded Cranford suitable employment based on his light-duty work restrictions for the requisite amount of time under section 42-9-260(B)(1).  When Cranford was discharged from Conway Medical Center on July 21, 2007, Dr. Ellis placed minimal work restrictions on Cranford, which included refraining from heavy lifting and strenuous activity.  When Cranford returned to Dr. Ellis one week later, Dr. Ellis’ instructions were limited to “taking it easy.”  Cranford was out of work from July 21, 2007 until August 13, 2007, during which time Hutchinson paid Cranford his salary in lieu of temporary total compensation.

When Cranford returned to work three weeks after his accident, he acknowledged that his supervisor assigned him to light-duty tasks.  Specifically, Cranford testified, “[Hutchinson] wouldn’t let me get in the basket more than four foot [sic] up off the dirt or anything.  He had me picking up trash and doing the weather sealing panels for a roof.”  Cranford even admits in his brief that “Hutchinson provided work suitable to Cranford’s light duty capacity” prior to being terminated[2] by Hutchinson.  Moreover, because Cranford returned to work for at least fifteen days and was provided suitable employment during that time, Hutchinson was not required to resume temporary disability payments under the plain language of section 42-9-260(B)(1).  See § 42-9-260(B)(1) (“[T]emporary disability payments . . . may be terminated or suspended immediately at any time within the one hundred fifty days if . . . the employee has returned to work; however, if the employee does not remain at work for a minimum of fifteen days, temporary disability payments must be resumed immediately[.]”).

Cranford also argues the Appellate Panel erred in failing to award him temporary benefits because Hutchinson failed to properly commence and terminate Cranford’s benefits.  While Cranford raises a meritorious argument, he argues this specific issue for the first time on appeal.  Thus, this issue is not preserved for review.  See Smith v. NCCI, Inc., 369 S.C. 236, 256, 631 S.E.2d 268, 279 (Ct. App. 2006) (“Only issues raised [to] and ruled upon by the [Appellate Panel] are cognizable on appeal.”); see also Creech v. Ducane Co., 320 S.C. 559, 564, 467 S.E.2d 114, 117 (Ct. App. 1995) (“[O]nly issues within the application for review are preserved for the full commission.”).  Accordingly, we affirm the Appellate Panel’s decision to deny Cranford temporary disability benefits.

II.  Maximum Medical Improvement

Next, Cranford claims the Appellate Panel erred in affirming the single commissioner’s finding that he had reached MMI for his back and arms, particularly when the single commissioner failed to explicitly find Cranford reached MMI.  We agree in part.

“Maximum medical improvement is a term used to indicate that a person has reached such a plateau that in the physician’s opinion there is no further medical care or treatment which will lessen the degree of impairment.”  O’Banner v. Westinghouse Elec. Corp., 319 S.C. 24, 28, 459 S.E.2d 324, 327 (Ct. App. 1995).  “MMI is a factual determination left to the discretion of the [Appellate] [P]anel.”  Gadson v. Mikasa Corp., 368 S.C. 214, 224, 628 S.E.2d 262, 268 (Ct. App. 2006).

Regarding Cranford’s back, the single commissioner did not make any explicit findings about whether Cranford achieved MMI.  However, the single commissioner agreed with Dr. Edwards’ 0% impairment rating and concluded that Cranford had a 0% disability to his back.  Additionally, the single commissioner concluded as a matter of law that based on Dr. Edwards’ testimony, “no further medical treatment will lessen [Cranford’s] period of disability.”  In making these conclusions, the single commissioner, and ultimately the Appellate Panel, implicitly held that Cranford had achieved MMI for his back.  See O’Banner, 319 S.C. at 28, 459 S.E.2d at 327 (“Maximum medical improvement is a term used to indicate that a person has reached such a plateau that in the physician’s opinion there is no further medical care or treatment which will lessen the degree of impairment.”) (emphasis added).

Additionally, there is substantial evidence in the record to conclude Cranford attained MMI no later than June 3, 2008.  Specifically, Cranford was able to maintain two jobs after his injury, the first of which involved routine stooping, bending over, and lifting.  Despite Cranford’s testimony that he was limited in the tasks he could undertake, he also testified on the date of the hearing he was physically capable of working “full time at medium to light duty.”  In addition, Cranford did not seek medical treatment for almost six months after his injury.  When Cranford eventually sought medical treatment, he was instructed by Doctor’s Care to follow up in one week, yet Cranford failed to return for another ten weeks.  When Cranford did return, the X-Rays of his back were normal.

Because Cranford claimed continued back pain, Doctor’s Care referred him to Dr. Edwards.  After an MRI scan, Dr. Edwards noted a minimal disc protrusion at his L5-S1 disc, but he noted it did not likely have any clinical significance.  Dr. Edwards also concluded Cranford had attained MMI and stated returning to work was acceptable with “the use of good body mechanics and careful lifting techniques.”  Cranford claims Dr. Edwards’ caveat and prescription of Flexeril for his muscle spasms is evidence that Cranford has not reached MMI.  To the contrary, Dr. Edwards’ report coupled with the thirty-day prescription of Flexeril constitutes evidence from which the single commissioner could conclude the medication would help to temporarily alleviate Cranford’s remaining symptoms, but his medical condition would not further improve.  See O’Banner, 319 S.C. at 28, 459 S.E.2d at 327 (disagreeing with claimant’s assertion that doctor’s prescription of medication after discharge was evidence claimant had not reached MMI because substantial evidence in record existed to show that medication helped to temporarily alleviate claimant’s remaining symptoms despite the fact that his medical condition would not further improve).

As to Cranford’s arms, the single commissioner never made a finding of MMI to his arms.  The single commissioner’s only finding pertaining to Cranford’s arms was an award for disfigurement for his keloid scars in the amount of four weeks of compensation for his left arm and eight weeks of compensation for his right arm.  We note a disfigurement award is generally not proper prior to a finding of MMI.  See Halks, 208 S.C. at 48, 36 S.E.2d at 855-56 (reversing award for disfigurement when claimant was receiving temporary total disability benefits because receipt of temporary disability established he had not attained MMI, which was a prerequisite for permanent disfigurement award).  However, both parties stipulated to this award, and Cranford does not appeal the propriety of the disfigurement award.  Regardless, the issue of disfigurement is separate from the issue of permanent disability in the instant case.[3]  As such, an explicit finding for MMI is still necessary because it is also relevant to Cranford’s entitlement to permanent disability.  Thus, we remand for specific findings on this issue.

III.  Permanent Disability Benefits

Next, Cranford contends the Appellate Panel erred in failing to award him permanent partial disability benefits based on the injuries to his back, arms, and skin.  We agree in part.

In the single commissioner’s order, he concluded Cranford did not sustain any permanent partial disability to his back under section 42-9-30 of the South Carolina Code (Supp. 2010).  In making this conclusion, the single commissioner considered Cranford’s six-month delay in seeking medical treatment from Doctor’s Care in addition to his failure to follow-up with Doctor’s Care for ten weeks, despite instructions to return within one week of his initial visit.

Further, Dr. Edwards’ medical opinion supports the single commissioner’s and the Appellate Panel’s conclusion.  After being referred to Dr. Edwards, Cranford underwent an MRI, which revealed no evidence of a fracture.  Dr. Edwards found a minimal disc protrusion at L5-S1, but he concluded it was likely of no clinical significance.  Dr. Edwards noted Cranford sustained a lumbar sprain and accordingly prescribed him one month of Flexeril to temporarily alleviate his discomfort.  In approving the occasional use of Flexeril for a limited period of time, he concluded Cranford was capable of returning to work with “the use of good body mechanics and careful lifting techniques.”  The single commissioner acknowledged Cranford’s visit to Dr. Zgleszewski.  Hutchinson claims the Appellate Panel afforded less weight to Dr. Zgleszewski’s medical reports based on the timing of Cranford’s visits and the fact that his visits were at the behest of Cranford’s attorney.  The nature and timing of Cranford’s visits do not discredit Dr. Zgleszewski’s medical opinion.  We find both parties presented credible conflicting medical evidence.  The single commissioner, and ultimately the Appellate Panel, had the discretion to weigh the conflicting evidence in rendering its decision.  Thus, we defer to its findings on this issue.  See Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 435, 458 S.E.2d 76, 78 (Ct. App. 1995) (“Where the medical evidence conflicts, the findings of fact of the [Appellate Panel] are conclusive.”).

The single commissioner, however, failed to make any conclusions on whether Cranford sustained permanent disabilities to his skin or arms.  Without specific findings regarding whether Cranford suffered a permanent impairment to his arms and skin, we remand this issue to the Appellate Panel to make specific findings on Cranford’s impairment to his arms and skin based on the evidence, and consequently, his entitlement to permanent partial disability benefits.  See Baldwin v. James River Corp., 304 S.C. 485, 486, 405 S.E.2d 421, 422 (Ct. App. 1991) (finding that without specific and definite findings upon the evidence, this court could not review the Appellate Panel’s decision that a claimant sustained neither an injury to his back nor a permanent disability to his right arm, particularly when those were material facts in issue).

IV.  Additional Medical Treatment

Finally, Cranford contends the Appellate Panel erred in affirming the single commissioner’s finding that he was not entitled to additional medical treatment for his back.  We disagree.

Section 42-15-60 of the South Carolina Code (Supp. 2010) provides for “[m]edical, surgical, hospital and other treatment, including medical and surgical supplies as may reasonably be required, for a period not exceeding ten weeks from the date of an injury to effect a cure or give relief and for such additional time as in the judgment of the Appellate Panel will tend to lessen the period of disability . . . .”  Pursuant to this section, an employer may be liable for a claimant’s future medical treatment if it tends to lessen the claimant’s period of disability even if the claimant has returned to work and has reached maximum medical improvement.  Dodge v. Bruccoli, Clark, Layman, Inc., 334 S.C. 574, 583, 514 S.E.2d 593, 598 (Ct. App. 1999); see also Scruggs v. Tuscarora Yarns, Inc., 294 S.C. 47, 50, 362 S.E.2d 319, 321 (Ct. App. 1987) (holding substantial evidence supported a finding of maximum medical improvement despite the claimant continuing to receive physical therapy); O’Banner, 319 S.C. at 28, 459 S.E.2d at 327 (finding claimant’s receipt of prescriptive medicines after he had reached maximum medical improvement constituted substantial evidence from which the single commissioner could conclude the medication helped to temporarily alleviate the claimant’s remaining symptoms, but his medical condition would not further improve).

The relevant inquiry is not whether Cranford attained MMI for his back, but whether additional medical treatment and medication will tend to lessen his period of disability.  See generally Dodge, 334 S.C. at 581, 514 S.E.2d at 596 (finding whether employee reached MMI was irrelevant to entitlement to permanent disability benefits because “‘[m]aximum medical improvement’ is a distinctly different concept from ‘disability.'”).  Again, because the medical evidence is conflicting on this issue, we must defer to the Appellate Panel.  SeeTiller v. Nat’l Health Care Ctr. of Sumter, 334 S.C. 333, 338, 513 S.E.2d 843, 845 (1999) (“Where there is a conflict in the evidence, either by different witnesses or in the testimony of the same witness, the findings of fact of the Commission are conclusive.”).  In Dr. Edwards’ June 3, 2008 report, he diagnosed Cranford with a lumbar strain/sprain, but he concluded it was acceptable for Cranford to take an occasional Flexeril for muscle spasms and wrote Cranford a thirty-day prescription for Flexeril.  Because Dr. Edwards opined Cranford suffered no permanent impairment, the single commissioner concluded Cranford sustained a 0% disability to his back.  Although Dr. Zgleszewski documented muscle spasms on July 22, 2008 and on April 23, 2009, and opined that additional treatment would alleviate Cranford’s pain, numbness, and spasms in his back, the Appellate Panel afforded more weight to Dr. Edwards’ testimony in determining further medical treatment would not lessen Cranford’s period of disability. See id. at 340, 513 S.E.2d at 846.  (“Expert medical testimony is designed to aid the Commission in coming to the correct conclusion; therefore, the Commission determines the weight and credit to be given to the expert testimony.”).  Accordingly, we affirm the Appellate Panel on this issue.

CONCLUSION

Based on the foregoing, we affirm the Appellate Panel’s decision to deny Cranford temporary disability benefits.  We affirm the finding of MMI to Cranford’s back but remand the issue of MMI for Cranford’s arms to the Appellate Panel based on its failure to rule on this issue.  We affirm the Appellate Panel’s conclusion that Cranford is not entitled to permanent partial disability benefits for his back but remand the issue of permanent disability for his arms and skin to the Appellate Panel based on the single commissioner’s and Appellate Panel’s failure to rule on these issues.  Lastly, we affirm the Appellate Panel’s conclusion that Cranford was not entitled to additional medical treatment.

Accordingly, the Appellate Panel’s decision is

AFFIRMED IN PART and REMANDED IN PART.

SHORT and GEATHERS, JJ., concur.

[1] Dr. Edwards’ notes reflect that Cranford’s mother also requested Doctor’s Care refer Cranford to Dr. Edwards for additional medical treatment.

[2] Hutchinson terminated Cranford on August 31, 2007, seventeen days after returning to work, for being unsafe on the job site.  Cranford testified Hutchinson fired him because “he was getting worried [about] me getting hurt in another accident, getting killed or dying of a heart attack.”  While Cranford argues in his brief that Hutchinson’s motivation for firing him was pretextual, the propriety of his firing is not before this court.

[3] An employee may be entitled to both a disability and a disfigurement award when an injury is in the form of a keloid scar.  SeeS.C. Code Ann. § 42-9-30(23) (Supp. 2010) (“[P]roper and equitable benefits must be paid for serious permanent disfigurement of the face, head, neck, or other area normally exposed in employment, not to exceed fifty weeks.  Where benefits are paid or payable for injury to or loss of a particular member or organ under other provisions of this title, additional benefits must not be paid under this item, except that disfigurement also includes compensation for serious burn scars or keloid scars on the body resulting from injuries, in addition to any other compensation.”) (emphasis added); see generally Mason v. Woodside Mills, 225 S.C. 15, 21, 80 S.E.2d 344, 347-48 (1954) (finding employee was entitled to disability and disfigurement for work-related accident that caused not only loss of use to his arm but significant atrophy to his arm resulting in disfigurement).