SC Workers’ Compensation – Waiver of Defenses After 150 Days

Feb 3, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals case clarifies how long the employer / insurance carrier has to investigate a claim and to raise certain defenses. If not raised properly, a skilled workers’ compensation attorney can fight to declare those defenses waived. Better make sure your attorney is experienced in trying workers’ compensation cases.

At Reeves, Aiken & Hightower LLP, our lawyers are experienced workers’ compensation attorneys.  Robert J. Reeves is a former 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 how to anticipate and prepare for defenses and insurance company tactics.  During our twenty-two (22) years each of practicing law, we have successfully 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

William T. Jervey, Jr., Employee, Respondent,

v.

Martint Environmental, Inc., Employer,

and General Casualty Insurance Company, Carrier, Appellants.

Appeal From Lexington County
R. Knox McMahon, Circuit Court Judge

Opinion No. 4930
Heard October 31, 2011 – Filed January 25, 2012

AFFIRMED AS MODIFIED

E. Ros Huff, Jr., of Irmo, for Appellants.

Andrew Nathan Safran, of Columbia, for Respondent.

SHORT, J.: Martint Environmental, Inc. (Martint) and General Casualty Insurance Company (collectively, Appellants) appeal the circuit court’s order vacating in part and affirming in part the order of the Appellate Panel of the Workers’ Compensation Commission, arguing the court erred in finding: (1) section 42-9-260 of the South Carolina Code is a time bar for raising a defense against compensability; (2) William Jervey could raise both waiver and laches as affirmative defenses; and (3) Jervey suffered from a compensable injury by accident in the course and scope of his employment.  We affirm as modified.

FACTS

On January 23, 2006, Jervey was working for Martint when a pipe he was carrying spilled sulfuric acid on his neck, face, and back.  The next day, Martint began paying Jervey temporary total disability payments and covering his medical bills.^[1]  Jervey subsequently developed post-traumatic stress disorder and began having cervical disc problems.  Thereafter, on June 29, 2007, he filed a Form 50 seeking treatment for his cervical problems and designation of Dr. Donald Johnson as his authorized treating physician.  Martint filed a Form 51 denying Jervey’s requested treatment and that he had sustained a compensable injury.  Jervey then filed a Form 58, pre-hearing brief, asserting in pertinent part that Martint’s claims are “barred by several legal doctrines, including waiver, estoppel and laches.”  Also, Jervey claimed that, despite knowing all the relevant facts, Martint failed to assert its defense for approximately fifteen months, while it paid him weekly compensation and provided him with treatment.

During a pre-hearing conference, the single commissioner took testimony on the issue of compensability, and Jervey’s attorney made a motion asserting Martint could not raise any defenses as to the compensability of the claim because Martint accepted the claim and paid Jervey temporary total disability payments beyond the 150-day time limit established in section 42-9-260 of the South Carolina Code.  Jervey claimed the only issue Martint could litigate was Jervey’s request for treatment for his cervical problems.  The commissioner agreed and ruled Martint could not raise a defense on compensability after 150 days.  At that time, Martint stipulated “the medical evidence to date indicate[d] a cervical problem that the doctors [said] is causally related.”

In his order, the commissioner reviewed section 42-9-260 of the South Carolina Code, and found the language was explicit:

Section 42-9-260 clearly establishes that an Employer/Carrier: (a) “may start temporary disability payments . . . [once] an employee has been out of work due to a work-related injury . . . for eight days”; (b) is afforded a 150-day grace period, during which it may conduct “a good faith investigation” to determine whether any “grounds for denial of the claim” exist; and (c) does not “waive . . . any grounds for good faith denial,” provided the defense is raised within the prescribed period.  This language likewise: (a) limits this grace period to “one hundred fifty days from the date the injury . . . is reported”; and (b) invokes a “waiver of any grounds for good faith denial” in the event payments are continued beyond expiration of this grace period.

(Emphasis in original.)  The commissioner further found Martint did not attempt to disclaim liability for Jervey’s injuries until approximately 450 days after receiving notification of the accident.  Moreover, Martint’s denial stems from the same allegation that was listed on its January 24, 2006 Form 12-A, in which Martint asserted Jervey was asked not to “touch or dismantle the sulfuric acid system.”  Therefore, the commissioner’s order provided Martint must: (a) continue to pay Jervey weekly compensation at the rate of $586.11 until such time as this obligation is relieved by further order of the commission or agreement of the parties; (b) accept financial responsibility for all causally-related medical treatments Jervey has received, including those provided by Dr. Johnson; and (c) authorize the additional medical treatments prescribed by Dr. Johnson and Dr. Roger Deal.

Martint subsequently filed a Form 30, appealing the commissioner’s order on thirty-four grounds.  The Appellate Panel agreed with the commissioner that Jervey was entitled to temporary total disability payments and medical benefits including those provided by Dr. Johnson and Dr. Deal; however, it vacated the commissioner’s ruling that the statute of limitations in section 42-9-260 barred Martint’s defense, and instead found the doctrines of waiver and laches prohibited Martint’s defense.  Jervey filed an appeal with the circuit court, arguing the Appellate Panel erred in vacating the commissioner’s determination that section 42-9-260 prohibited Martint from asserting its compensability defense.  Martint filed its appeal with the circuit court four days later, raising twenty-three points of alleged error, including that the Appellate Panel erred in applying the doctrines of waiver and laches.  Following a hearing, the circuit court issued its order affirming the Appellate Panel’s order in all respects except for the portion that vacated the single commissioner’s legal conclusions concerning the impact of the statute of limitations in section 42-9-260(A).  The court also reinstated the award of compensation and medical benefits and dismissed Martint’s appeal.  This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions by the Appellate Panel of the Workers’ Compensation Commission.  Fredrick v. Wellman, Inc., 385 S.C. 8, 15-16, 682 S.E.2d 516, 519 (Ct. App. 2009); see Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981).  Under the scope of review established in the APA, this court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse or modify the Appellate Panel’s decision if the appellant’s substantial rights 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 on the whole record.”  S.C. Code Ann. § 1-23-380(5) (Supp. 2010); see Stone v. Traylor Bros., Inc., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004).  Our supreme court has defined substantial evidence as evidence that, in viewing the record as a whole, would allow reasonable minds to reach the same conclusion that the Appellate Panel reached.  Lark, 276 S.C. at 135, 276 S.E.2d at 306.  “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”  Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm’n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).

LAW/ANALYSIS

I.  Statute of Limitations

Martint argues the circuit court erred in finding section 42-9-260 of the South Carolina Code is a time bar for raising a defense against compensability.  We agree.

The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature.  Blackburn v. Daufuskie Island Fire Dist., 382 S.C. 626, 629, 677 S.E.2d 606, 607 (2009).  “In ascertaining legislative intent, ‘a court should not focus on any single section or provision but should consider the language of the statute as a whole.'”  Gov’t Emps. Ins. Co. v. Draine, 389 S.C. 586, 592, 698 S.E.2d 866, 869 (Ct. App. 2010) (quoting Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996)).  “Unless there is something in the statute requiring a different interpretation, the words used in a statute must be given their ordinary meaning.”  S.C. Coastal Conservation League v. S.C. Dep’t of Health and Env’t Control, 390 S.C. 418, 425, 702 S.E.2d 246, 250 (2010).  “When a statute’s terms are clear and unambiguous on their face, there is no room for statutory construction and a court must apply the statute according to its literal meaning.”  Id. at 425-26, 702 S.E.2d at 250.  If two provisions have an irreconcilable conflict, our courts have used the “last legislative expression rule,” which provides “where conflicting provisions exist[], the last in point of time or order of arrangement, prevails.”  Eagle Container Co. v. Cnty. of Newberry, 379 S.C. 564, 572, 666 S.E.2d 892, 896 (2008) (quoting Ramsey v. Cnty. of McCormick, 306 S.C. 393, 397, 412 S.E.2d 408, 410 (1991).  However, the last legislative expression rule “is purely an arbitrary rule of construction and is to be resorted to only when there is clearly an irreconcilable conflict, and all other means of interpretation have been exhausted.”  Id. (quoting Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 54, 26 S.E.2d 22, 24 (1943)).

Section 42-9-260(A) of the South Carolina Code provides “[w]hen an employee has been out of work due to a reported work-related injury or occupational disease for eight days, an employer may start temporary disability payments immediately and may continue these payments for up to one hundred fifty days from the date the injury or disease is reported without waiver of any grounds for good faith denial.”  S.C. Code Ann. § 42-9-260(A) (Supp. 2010) (emphasis added).  Section 42-9-260(B) states that “[o]nce temporary disability payments are commenced, the payments may be terminated or suspended immediately at any time within the one hundred fifty days if: . . . (3) a good faith investigation by the employer reveals grounds for denial of the claim . . . .”  S.C. Code Ann. § 42-9-260(B) (Supp. 2010).  Section 42-9-260(F) provides: “After the one-hundred-fifty-day period has expired, the commission shall provide by regulation the method and procedure by which benefits may be suspended or terminated for any cause, but the regulation must provide for an evidentiary hearing and commission approval prior to termination or suspension . . . .”  S.C. Code Ann. § 42-9-260(F) (Supp. 2010).

Martint argues section 42-9-260(F) provides the Commission with the authority to designate procedures for terminating benefits after the 150-day period “for any cause,” which includes a good faith defense, and the Commission neglected to adopt a procedure.  Although the Commission adopted Regulation 67-506[2] to establish the procedure for terminating disability benefits after the first 150-days after the employer’s notice of the injury, Martint asserts the regulation does not address the procedure for terminating benefits based on a denial of compensability, and the statute’s clear “for any cause” language is plain and unambiguous and “must be interpreted to include a good faith defense on the issue of compensability.”  Thus, Martint contends it can raise the issue of compensability as a good faith defense after the 150-day period has expired.

In Fredrick v. Wellman, Inc., 385 S.C. 8, 682 S.E.2d 516 (Ct. App. 2009), this court addressed the issue.  Fredrick argued that when 150 days from the first report of injury have expired, payments may be terminated or suspended for only those reasons set forth in Regulations 67-505 and -506 and Form 21.  Id. at 18, 682 S.E.2d at 521.  Fredrick asserted Wellman’s fraud defense was not properly before the commissioner because Wellman failed to assert it within 150 days from the date the injury was first reported, and Wellman failed to raise the fraud defense in its Form 21.^[3]  Id. at 17, 682 S.E.2d at 520.  This court disagreed and held that section 42-9-260(F) permits an employer to terminate benefits for any cause after the expiration of the 150 days; thus, Wellman’s fraud defense was properly before the commissioner.  Id. at 19, 682 S.E.2d at 521.  Because Fredrick held section 42-9-260(F) permits an employer to terminate benefits for any cause after the expiration of 150 days, we find Martint is not prohibited from asserting its defense.  Therefore, the Appellate Panel was correct in vacating the single commissioner’s finding that section 42-9-260 is a time bar for raising a defense against compensability.

II.  Affirmative Defenses

Martint argues the circuit court erred in finding Jervey could raise both waiver and laches as affirmative defenses.  We disagree.

Waiver is the “voluntary and intentional relinquishment or abandonment of a known right.”  Strickland v. Strickland, 375 S.C. 76, 85, 650 S.E.2d 465, 470 (2007).  The party claiming waiver must show the other party possessed, at the time, actual or constructive knowledge of his rights or of all the material facts upon which they were dependent.  Janasik v. Fairway Oaks Villas Horizontal Prop. Regime, 307 S.C. 339, 344, 415 S.E.2d 384, 387-88 (1992).  “The doctrine of waiver does not necessarily imply that the party asserting waiver has been misled to his prejudice or into an altered position.”  Id. at 344, 415 S.E.2d at 388.  Laches is an equitable doctrine that our courts have defined as “neglect for an unreasonable and unexplained length of time, under circumstances affording opportunity for diligence, to do what in law should have been done.”  Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 432, 673 S.E.2d 448, 456 (2009) (quoting Hallums v. Hallums, 296 S.C. 195, 198, 371 S.E.2d 525, 527 (1988)).  “[T]o establish laches as a defense, a party must show that the complaining party unreasonably delayed its assertion of a right, resulting in prejudice to the party asserting the defense of laches.”  Id.  “[W]hether laches applies in a particular situation is highly fact-specific, so each case must be judged on its own merits.”  Muir v. C.R. Bard, Inc., 336 S.C. 266, 297, 519 S.E.2d 583, 599 (Ct. App. 1999).

Martint asserts Jervey did not amend his Form 50 to raise the defense of waiver and laches, and he did not raise it as an issue during the hearing before the single commissioner.  Therefore, Martint maintains the issue was not before the commissioner and was waived by Jervey.  However, Jervey filed a Form 58, pre-hearing brief, in which he asserted Martint’s claims were barred by several legal doctrines, including waiver, estoppel, and laches.  In Fredrick, this court found a prehearing brief effectively amended a Form 51 Answer, and the prehearing brief provided Fredrick and the Commission with ample notice of the fraud defense.  Fredrick, 385 S.C. at 20, 682 S.E.2d at 522.  Martint did not object to Jervey’s pre-hearing brief at the October 15, 2007 hearing.  Additionally, in its Form 30 appeal to the appellate panel, Martint raised thirty-four issues; however, none of these allege Jervey’s waiver and laches arguments were untimely or improper.  Instead, Martint only argued the single commissioner erred in concluding its conduct satisfied the criteria for waiver and laches.  Therefore, we find Jervey’s defenses of waiver and laches were properly before the single commissioner.

Additionally, we find Martint’s argument that Jervey did not amend his Form 50 to raise the defense of waiver and laches or raise it as an issue during the hearing before the single commissioner is not preserved for our review because it did not raise the argument to the single commissioner or the Appellate Panel.  Pratt v. Morris Roofing, Inc., 353 S.C. 339, 352, 577 S.E.2d 475, 481-82 (Ct. App. 2003) (stating an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the single commissioner or in a request for commission review of the single commissioner’s order to be preserved for appellate review).  Furthermore, we find because Martint knew of its defense the day of the accident, yet it paid and has continued to pay Jervey disability compensation, and it did not assert the defense until at least 450 days after the accident, the evidence supports the Appellate Panel’s finding that Martint’s defense is barred by the doctrine of waiver and laches.[4]

III.  Compensable Injury

Martint argues the circuit court erred in finding Jervey suffered from a compensable injury by accident in the course and scope of his employment because he was working outside the scope of his employment when he “was asked not [to] touch or dismantle the sulfuric acid system,” and he “did not use [the] provided safety gear.”  We need not address this issue because we find the doctrines of waiver and laches prohibit Martint from asserting its compensability defense.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of another issue is dispositive of the appeal).

Conclusion

Accordingly, the circuit court’s order is affirmed as modified, reinstating the Appellate Panel’s finding that section 42-9-260 does not prohibit Martint from asserting its compensability defense.  However, we find Martint’s defense is barred by the doctrine of waiver and laches because Martint knew of its defense the day of the accident, yet it paid and has continued to pay Jervey disability compensation, and it did not assert the defense until at least 450 days after the accident.

AFFIRMED AS MODIFIED.

WILLIAMS and GEATHERS, JJ., concur.

[1]  The circuit court found the compensation payments from Martint to Jervey have continued without interruption since January 24, 2006.

[2]  25A S.C. Code Ann. Regs. 67-506 (Supp. 2010).

[3]  Wellman asserted Fredrick’s concealment of prior back problems vitiated their employment relationship.  Id. at 16, 682 S.E.2d at 519-20.  Here, there is no allegation of fraud.

[4]  From our review of the record, Martint did not assert its defense until it filed a Form 51 on July 27, 2007, which was 510 days after the date of the accident.

SC Workers’ Compensation – Permanent and Total Disability – Vocational Experts

Feb 3, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Court of Appeals decision highlights the importance of proper case preparation and trial experience. Permanent and total disability cases are very complicated and require extensive records review and use of various experts, including treating physicians as well as vocational specialists. A successful ruling gives an injured worker the most money SC law allows. Many times, the outcome turns on which expert witness is more persuasive. Better make sure your attorney has handled these cases and knows what they are doing.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Henry Dinkins, Appellant,

v.

Lowe’s Home Centers, Inc. – Sumter, SC and Specialty Risk Services, LLC, Respondent.

Appeal from Sumter County
George C. James, Jr., Circuit Court Judge

Opinion No. 4926
Heard October 5, 2011 – Filed January 4, 2012

Affirmed

Stephen Benjamin Samuels, of Columbia, for Appellant.

Weston Adams, III, Helen F. Hiser, C. Edward Rawl, Jr., and M. McMullen Taylor, all of Columbia, for Respondents.

Lockemy, J.:  In this worker’s compensation action, Henry Dinkins appeals the circuit court’s decision that there is substantial evidence in the record to support the Appellate Panel of the Worker’s Compensation Commission’s (Appellate Panel) finding he is not entitled to total disability pursuant to section 42-9-10 of the South Carolina Code (1985).  Specifically, Dinkins contends the Appellate Panel erred in (1) finding section 42-9-400 of the South Carolina Code (1985 & Supp. 2005) inapplicable; (2) finding Dinkins is only entitled to compensation under section 42-9-30 of the South Carolina Code (1985); and (3) failing to rule on whether Dinkins’ proof of diligent efforts to secure employment establishes a total loss of earnings under section 42-9-10.  Dinkins also argues the circuit court erred in failing to remand the case with instructions to make specific findings of fact and conclusions of law affirmatively addressing total disability proven by unsuccessful “diligent efforts to secure employment.”  We affirm.

FACTS

Dinkins began working for Lowe’s Home Centers, Inc. (Lowe’s) on April 17, 1999, as a Customer Service Representative and was eventually promoted to Paint and Home Décor Department Manager.  On May 1, 2001, Dinkins suffered the first of three injuries at Lowe’s when he injured his left ankle.  The commissioner found Dinkins sustained a 40% permanent partial disability to the left leg.  Dinkins then injured his right knee at Lowe’s on June 22, 2002, and the commissioner found Dinkins sustained a 30% permanent partial disability to the right leg.  Following the two incidents, Lowe’s reassigned Dinkins to a customer service position to accommodate his physical injuries.

Dinkins injured his back on April 20, 2005, and reported his injury to Lowe’s.  After receiving treatment from Dr. Stacey, an orthopedic surgeon, Dinkins was diagnosed with “L4 radiculopathy.”  On December 5, 2005, Lowe’s released Dinkins from work after Dr. Armsey (Dr. Stacey’s partner) reported Dinkins was restricted from lifting items exceeding 20 pounds.  Dinkins has not been employed since that time.  Dr. Johnson reported Dinkins at maximum medical improvement on March 9, 2007, and stated Dinkins was a good candidate for “long-term anti-inflammatory medications” and was unlikely to need surgery in the future.  However, Dr. Johnson also recommended Dinkins be placed on sedentary to light work with a lifting restriction of 10 pounds on an occasional basis.  Dr. Johnson suggested avoiding repetitive bending and twisting if possible, because if Dinkins did not, his condition would be exacerbated.  After examining Dinkins on June 2, 2006, Dr. Timothy Zgleszewski, stated “I believe that the lower back injury is a separate injury [from Dinkins’ previous ankle and knee injury] . . . . ”

Dinkins met with two vocational experts, Adger Brown and Glen Adams.  Brown stated Dinkins was permanently and totally disabled because of Dinkins’ physical limitations combined with his age and lack of transferable skills.  Brown also stated that “being sixty-three years old, [Dinkins] is already at an incredible deficit for anyone hiring him into any type of meaningful sustained employment.”  In contrast, Adams, after meeting with Dinkins, created a report that detailed all the jobs and fields Dinkins is fit to work with his restrictions.  Adams stated:

A labor market survey was conducted based on the factors outlined in this report in order to identify actual jobs for which Mr. Dinkins qualifies.  A stable labor market was found to exist in his local labor market in the banking, financial and retail industries.  Based on the strength of his prior work history in management positions, as well as the other factors outlined in this report, he is currently employable in his labor market.

Prior to working for Lowe’s, Dinkins was employed in the banking industry, and he stated he could return to work in that industry.  Dinkins conducted a job search in Columbia, Florence, Camden, and Sumter over the course of about three months.  After sending out between twenty-five to thirty applications, he was either refused the job or had not heard back from the employer.  Dinkins admitted he is not applying to any jobs that he could not do.

On January 23, 2008, the single commissioner found Dinkins’ compensable injury was confined to his back; thus, he was limited to the scheduled disability compensation under section 42-9-30.  Further, the commissioner found Ellison v. Frigidaire Home Prods., 360 S.C. 236, 600 S.E.2d 120 (Ct. App. 2004) (Ellison I) was not applicable because Dinkins’ pre-existing ankle and knee injuries did not combine to cause a greater disability.  The commissioner also found even if Ellison I were applicable, Dinkins did not meet his burden of proving a total loss of earning capacity due to his work related injuries.  She awarded Dinkins a 12% permanent partial disability to his back under section 42-9-30.  Dinkins appealed the commissioner’s decision to the Appellate Panel, and the Appellate Panel affirmed the commissioner’s findings, and also found Ellison v. Frigidaire Home Prods., 371 S.C. 159, 638 S.E.2d 664 (2006) (Ellison II) was not applicable.  Dinkins then appealed to the court of common pleas, and the court of common pleas affirmed the Appellate Panel’s decision.

STANDARD OF REVIEW

The Administrative Procedures Act (“APA”) provides 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); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).  Under the APA, this court can reverse or modify the decision of the Appellate Panel if 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 on the whole record.  S.C. Code Ann. § 1–23–380(5)(d),(e) (Supp. 2010); Transp. Ins. Co. v. South Carolina Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687, 689-90 (2010).

The Appellate Panel is the ultimate fact-finder in workers’ compensation cases.  Jordan v. Kelly Co., 381 S.C. 483, 486, 674 S.E.2d 166, 168 (2009); Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).  As a general rule, this court must affirm the findings of fact made by the Appellate Panel if they are supported by substantial evidence.  Pierre, 386 S.C. at 540, 689 S.E.2d at 618.  “Substantial evidence is that evidence which, in considering the record as a whole, would allow reasonable minds to reach the conclusion the [Appellate Panel] reached.”  Hill v. Eagle Motor Lines, 373 S.C. 422, 436, 645 S.E.2d 424, 431 (2007).  “The possibility of drawing two inconsistent conclusions from the evidence does not prevent the [Appellate Panel’s] finding from being supported by substantial evidence.”  Id.

LAW/ANALYSIS

I.  Greater disability pursuant to section 42-9-400

Dinkins contends substantial evidence in the record supports his argument that his back injury in combination with his previous knee and ankle injuries resulted in a greater disability than the back injury alone, pursuant to section 42-9-400.  Specifically, Dinkins argues the Appellate Panel erred in basing its findings on Wigfall v. Tideland Utilities, Inc., 354 S.C. 100, 580 S.E.2d 100 (2003), and contends Ellison IIis controlling.  We disagree.

In Wigfall, the claimant’s sole physical injury was a broken left femur stemming from a work-related accident.  Wigfall, 354 S.C. at 102, 580 S.E.2d at 101.  The single commissioner found that while Wigfall’s injury, employment history, age, and educational attainment rendered him totally disabled, the supreme court’s ruling in  Singleton v. Young Lumber Co., 236 S.C. 454, 114 S.E.2d 837 (1960) limited him to an award under the scheduled member statute.  Id. at 102-03, 580 S.E.2d at 101; see Singleton, 236 S.C. at 471, 114 S.E.2d at 845 (“Where the injury is confined to the scheduled member, and there is no impairment of any other part of the body because of such injury, the employee is limited to the scheduled compensation, even though other considerations such as age, lack of training, or other conditions peculiar to the individual, effect a total or partial industrial incapacity.”).  On appeal, the supreme court reaffirmed its ruling in Singleton that an injury to a scheduled member which is the sole cause of the claimant’s disability may be compensated only under the scheduled injury statute.  Wigfall, 354 S.C. at 106-07, 580 S.E.2d at 103.

In Ellison, the claimant was given a 20% permanent impairment rating to his leg after injuring it on the job.  Ellison II, 371 S.C. 159, 161, 638 S.E.2d 664, 665 (2006).  Ellison also had pre-existing physical conditions including hypertension, sleep apnea, prostate cancer, diabetes, and congestive cardiac disease, which, in combination with his workplace injury, rendered him physically unable to return to work after his accident.  Id.  Applying section 42-9-400, the commissioner concluded Ellison was totally disabled from the combined effect of his pre-existing conditions and his workplace injury to his leg.  Id.at 162, 638 S.E.2d at 665.  Section 42-9-400 provided in pertinent part:

(a) If an employee who has a permanent physical impairment from any cause or origin incurs 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, by reason of the combined effects of the preexisting impairment and subsequent injury or by reason of the aggravation of the preexisting impairment, than that which would have resulted from the subsequent injury alone, the employer or his insurance carrier shall in the first instance 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 . . . .

(d) As used in this section, “permanent physical impairment” means 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.^[1]

S.C. Code Ann. § 42-9-400 (1985 & Supp. 2005).  On appeal, this court found section 42-9-400 merely entitled an employer’s insurance carrier to be reimbursed by the Second Injury Fund; thus, Singleton  should have been applied to the facts.  Ellison II, 371 S.C. at 164, 638 S.E.2d at 666.  Our supreme court reversed this court’s decision, holding Singleton was inapplicable.  Id. at 162-64, 638 S.E.2d at 665-66 (stating Singleton “stands simply for the proposition that impairment involving only a scheduled member is compensated under the scheduled injury statute and not the general disability statute”).  It held that in contrast to Singleton, Ellison claimed total disability from the combined effect of his workplace injury and his pre-existing physical deficiencies.  Id. at 162-63, 638 S.E.2d at 665-66.   The supreme court found “[t]he language of § 42-9-400(a) and (d) indicates the legislature clearly envisioned that a claimant may recover for greater disability than that incurred from a single injury to a particular body part if the combination with any pre-existing condition hinders employment.”  Id.at 164, 638 S.E.2d at 666.

While distinguishable from the current appeal, the recent decision in Bartley v. Allendale Cnty. Sch. Dist., 392 S.C. 300, 709 S.E.2d 619 (2011) is also relevant to our analysis.  In Bartley, our supreme court determined this court arguably did some improper fact finding to make its ruling that the injury at issue did not cause or aggravate Bartley’s other conditions, and therefore, Bartley was not entitled to compensation under section 42-9-400.[2]  Bartley, 392 S.C. at 310-11, 709 S.E.2d at 623-24.   The supreme court then stated, “[I]t appears the Court of Appeals focused on whether Bartley’s 2002 accident caused her other medical conditions or whether it aggravated her pre-existing conditions.”  Id. at 309, 709 S.E.2d at 623.  However, “[t]here is no requirement that the pre-existing condition aggravated the work injury or that the work injury aggravated the pre-existing condition; rather, the question to be considered was whether the combined effects of the condition and the workplace injury resulted in a greater disability than would otherwise have existed.”  Id. at 308, 709 S.E.2d at 623 (citing Ellison II, 371 S.C. at 164, 638 S.E.2d at 666).  The case was remanded to the Appellate Panel because “had [the Appellate Panel] considered the application of the law in Ellison II, [it] would have made additional findings of fact pertinent to this analysis that are missing from the record.”  Id. at 310, 709 S.E.2d at 624; see Ellison II, 371 S.C. 159, 638 S.E.2d 664 (2006).

Here, the commissioner erred in citing Ellison I, 360 S.C. 236, 600 S.E.2d 120 (Ct. App. 2004), which was overturned.  However, the Appellate Panel cited to the controlling case law in Ellison II, 371 S.C. 159, 638 S.E.2d 664 (2006).  The Appellate Panel analyzed the facts in light of Ellison II, and determined that upon the evidence, Ellison II did not apply.  Specifically, the Appellate Panel found:

Based on the testimony and evidence presented, Claimant’s current inability to work, if any, is secondary solely to his back injury.  The knee and ankle injuries he sustained in his previous work-related accidents do not contribute to his disability as defined by § 42-1-10 [sic] in any way; therefore, Claimant’s reliance on Ellison and § 42-1-400(a) [sic] is misplaced.

(citations omitted).  Unlike the Appellate Panel in Bartley, the Appellate Panel here made findings of fact about Dinkins’ previous injuries.  In addition, the order cites a doctor’s report which states the back injury is a “separate and distinct” injury from Dinkins’ ankle and knee injury.  The Appellate Panel found Dinkins’ knee and ankle injuries did not combine with his current back injury to create a greater disability, and therefore he could not establish total disability based upon section 42-9-400.  While the Appellate Panel did not use the preferable language, “combined effects to cause a greater disability,”^[3] it did cite the proper case law.  We believe it viewed the facts appropriately in light of Ellison II, and substantial evidence in the record supports the Appellate Panel’s decision that Dinkins did not have a greater disability as a result of the combined effects of his previous injuries and his current injury.  Accordingly, we affirm the Appellate Panel’s finding.

In view of our determination that Dinkins has not proven he has a greater disability as a result of the combined effects of his injuries, we need not reach the remaining issues relating to loss of earning capacity. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (ruling an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

CONCLUSION

Based on the foregoing reasons, the trial court is

AFFIRMED.

HUFF and PIEPER, JJ., concur.

[1] Section 42-9-400(a) was later amended to refer to a “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,” and it has omitted the “combined effects” language.  Act No. 111, Pt. II, § 3, 2007 S.C. Acts 599 (emphasis added). However, this change is applicable only to injuries that occur on or after July 1, 2007.

[2] The Appellate Panel found it could not “stack” Bartley’s previous injuries with her current injuries; thus, it did not make any findings of fact in regards to her previous injuries.  Therefore, our supreme court found this court may have made its own findings of fact in regard to those previous injuries in order to come to its decision.

[3] The Appellate Panel specifically stated “do not contribute to his disability.”