Pre-Existing Conditions in SC Workers’ Comp – Yesterday’s News

Jan 21, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

This recent SC Supreme Court case discusses the interplay between “pre-existing conditions” and enhanced permanent impairment in workers’ compensation cases. Ordinarily, a pre-existing condition is a disqualifying event for health and life insurance policies. However, in workers’ compensation, such a condition is not fatal to your claim. Rather, it can actually make a claim compensable (as your condition pre-disposes you to injury) and/or greater permanent impairment. In these cases, a skilled workers’ compensation attorney will have to secure the necessary medical causation opinions and document in prior medical records the distinction between a prior injury or condition and the new injury for which benefits are being sought. Experience counts here.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Sandra Bartley, Claimant, Petitioner,

v.

Allendale County School District, Employer, and S.C. School Boards Insurance Trust, Carrier, Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Allendale County
J. Ernest Kinard, Jr., Circuit Court Judge

Opinion No.  26960
Heard March 1, 2011 – Filed April 11, 2011

REVERSED AND REMANDED

Jonathan R. Hendrix, of Williams, Hendrix, Steigner & Brink, of Lexington, for Petitioner.

Kirsten Leslie Barr, of Trask & Howell, of Mt. Pleasant, for Respondents.

JUSTICE BEATTY:  We granted a petition for a writ of certiorari to review Bartley v. Allendale County School District, 381 S.C. 262, 672 S.E.2d 809 (Ct. App. 2009), in which the Court of Appeals held Sandra Bartley was entitled to benefits for an injury to her neck that resulted in a thirty percent permanent disability to her back, but denied all other benefits.  On appeal, Bartley contends her physical injury combined with her pre-existing impairments[1] resulted in a substantially greater disability that is compensable pursuant to Ellison v. Frigidaire Home Products, 371 S.C. 159, 638 S.E.2d 664 (2006).  We reverse and remand.

I.  FACTS

On September 26, 2002, Bartley was working as a special needs teacher with the Allendale County School District when a child accidently collided with her during recess and knocked her down while trying to give her a hug.  Bartley fell onto a chain link fence and landed on the ground on top of some tree roots, and the child fell on top of her.

Bartley sought medical treatment and was thereafter referred to an orthopedic medical practice.  Bartley told the orthopedic physician that she could not lift her arm and that she had pain in her right shoulder and her arm muscles, as those were the problems that most concerned her.  The orthopedic physician noted in early April 2003 that Bartley’s original physician had unfortunately misdiagnosed Bartley as having tendonitis bursitis of the shoulder and had referred her for physical therapy, which worsened the condition.[2]  However, the orthopedic physician stated an MRI confirmed Bartley had “severe foraminal stenosis at C5-6” [3] and that this was a “cervical radiculopathy type process rather than shoulder pathology” that was “clearly . . . related to her original injury at work.”

On May 14, 2003, Bartley underwent surgery for a cervical fusion.  After that, Bartley seemed to be doing better and believed that she could return to teaching.  Bartley filed a Form 50 on July 18, 2003 noting injuries to her neck, right arm, right hand, and left knee, as well as the occurrence of migraine headaches.

In August 2003 Bartley began a new job teaching for Richland County School District One in Columbia.  From August to October of 2003, Bartley began having more pain.  Bartley attributed this to her teaching duties, which required her to work long hours and to lift a lot of equipment and other items.  In October 2003, a student picked up a desk and threatened to throw it at Bartley.  She was not physically harmed, but according to Bartley, the threat brought back memories of being injured in 2002 and made her fearful that she could be injured again.

Bartley’s physician prescribed a medical leave of absence after October 2003, stating her “neuropathic parascapular pain” was “definitely related to the incident on September 26, 2002” and was “most likely going to result in temporary or total disability to perform her work as she did prior to these injuries.”  Bartley returned to work briefly in January 2004 before her physician again prescribed a medical leave of absence.[4]

On December 10, 2004, Bartley filed a second Form 50 seeking a hearing.  Bartley noted injuries to her cervical spine that resulted in pain, tingling and numbness down the right side of her body (including the neck/shoulder/arm/hand/buttocks/leg); dizziness; headaches; ringing in her ears; and emotional/mental problems (post-traumatic stress disorder).

A hearing was held in August 2005 before a commissioner of the South Carolina Workers’ Compensation Commission.  Bartley submitted a “Psychological Discharge Summary” dated January 4, 2005 from Dr. Clay Drummond, a clinical psychologist, who diagnosed her as having a pain disorder associated with both psychological factors and a general medical condition, post-traumatic stress disorder, chronic intractable pain, and cognitive degradation.  Dr. Drummond stated: “It is most psychologically probable that her disorders were either caused by or exacerbated by her at work accident.”  Dr. Drummond found the “combination of [Bartley’s] physical and emotional difficulties precludes her from doing any type of meaningful work” and that “[s]he will continue to need maintenance psychiatric medications and likely need periodic maintenance visits with a mental health professional.”

Bartley also submitted a February 28, 2005 assessment from Joel D. Leonard, a Vocational Consultant, who reported that Bartley’s “work-related injury from September 26, 2002 has had a severe and adverse effect on her ability to perform gainful work activity” and that she “is . . . totally disabled . . . due to the combined implications of her physio-vocational and psycho-vocational status.”  Leonard concluded “Bartley’s work-related accident has had a catastrophic effect on her ability to access the open labor market and her ability to garner a weekly wage.”

The commissioner found Bartley had suffered an injury to her neck in the 2002 accident and a resulting thirty percent loss of use of her back, but that Bartley had failed to prove “that she suffered an injury to any body part other than her neck or that her psychological condition has worsened as a result of this injury.”  The commissioner denied Bartley’s “claims for benefits for the buttocks, low back, right leg, dizziness, ringing in the ears or psychological disorder” on the basis they were barred by the statute of limitations and “these conditions were not caused by [Bartley’s] injury at work.”  The commissioner stated that he “d[id] not doubt that the Claimant’s future prospects of employment will be limited,” but that he was “not allowed to stack her personal ailments with her work injury to make a finding of disability,” citing Ellison v. Frigidaire Home Products, 360 S.C. 236, 600 S.E.2d 120 (Ct. App. 2004) (Ellison I).  The commissioner observed, “It appears that Dr. Drummond and Joel Leonard have done exactly that in making their assessments of employability.”

The Appellate Panel affirmed the commissioner’s order with certain amendments and adopted the commissioner’s findings of fact and conclusions of law.  Specifically, the Appellate Panel affirmed the commissioner’s finding that Bartley suffered a thirty percent permanent loss of use of her back as a result of her neck injury that occurred on September 26, 2002.  The Appellate Panel found the claims for benefits for the buttocks, low back, right leg, dizziness, ringing in the ears, and psychological overlay were not barred by the statute of limitations in S.C. Code Ann. § 42-15-40, although it agreed with the commissioner’s finding that these conditions were not caused by Bartley’s work injury.[5]  The Appellate Panel found Bartley was not disabled from work because of her neck injury “since she began work with Richland School District One in August 2003.”  The circuit court and the Court of Appeals affirmed.

II.  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, 689 S.E.2d 615 (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 Workers’ Compensation Commission 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.  Transp. Ins. Co. v. South Carolina Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d 687, 689-90 (2010) (citing S.C. Code Ann. § 1-23-380(5)(d), (e) (Supp. 2009)).

The Commission is the ultimate fact finder in workers’ compensation cases.  Jordan v. Kelly Co., 381 S.C. 483, 674 S.E.2d 166 (2009); Shealy v. Aiken County, 341 S.C. 448, 535 S.E.2d 438 (2000).  As a general rule, this Court must affirm the findings of fact made by the Commission if they are supported by substantial evidence.  Pierre, 386 S.C. at 541, 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 Commission 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 Commission’s finding from being supported by substantial evidence.”  Id.

III.  LAW/ANALYSIS

Bartley contends the Court of Appeals erred in failing to reverse and remand her case to the Commission in light of this Court’s decision in Ellison v. Frigidaire Home Products, 371 S.C. 159, 638 S.E.2d 664 (2006) (Ellison II), which reversed the Ellison I case relied upon by the single commissioner and the Appellate Panel.  Bartley contends she has suffered a greater disability than the specific injury to her neck.  The Court of Appeals found Ellison II to be inapplicable.

Ellison fractured his leg while operating a forklift for Frigidaire and sustained a twenty percent impairment to his leg.  Ellison v. Frigidaire, 360 S.C. 236, 238, 600 S.E.2d 120, 121 (Ct. App. 2004).   At the time of his accident, Ellison had been suffering for several years from hypertension and prostate cancer.  Id.  After his accident, Ellison was also diagnosed with sleep apnea, diabetes, and congestive heart failure.  Id.

Ellison argued the combination of his accidental leg injury and his other medical ailments rendered him totally and permanently disabled.  Id. Frigidaire, in contrast, argued Ellison was limited to the scheduled member benefits of a twenty percent impairment for his leg because only his leg was injured in his workplace accident.  Id.

The commissioner and the Appellate Panel concluded the combination of Ellison’s workplace injury and his other ailments rendered him totally disabled, and the circuit court affirmed.  Id. at 238-39, 600 S.E.2d at 121.  The Court of Appeals reversed, finding S.C. Code Ann. § 42-9-400 (relied upon by Ellison) was inapplicable and that he was limited to benefits for a scheduled member (the leg) because there was no evidence that his workplace injury affected any body part other than his leg.  Id. at 241, 600 S.E.2d at 122.

This Court reversed in Ellison v. Frigidaire Home Products, 371 S.C. 159, 638 S.E.2d 664 (2006).  The Court held that Ellison’s workplace injury, combined with his pre-existing physical conditions (including hypertension, sleep apnea, prostate cancer, diabetes, and congestive cardiac disease), rendered him physically unable to return to work and left him permanently and totally disabled.  This Court interpreted section 42-9-400, which provided in relevant part as follows:

(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.

Id. at 161-62, 638 S.E.2d at 665.

This Court held there 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:

The 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 reemployment. There is no requirement that the pre-existing condition aggravated the injury, or that the injury aggravated the pre-existing condition, so long as there is a greater disability simply from the “combined effects” of the injury and the pre-existing condition.

Id. at 164, 638 S.E.2d at 666 (emphasis added).[6]

In the current appeal, the Court of Appeals affirmed the determination of the Appellate Panel that Bartley was limited to benefits for an injury to her neck and a resulting thirty percent impairment to her back.  Bartley v. Allendale County Sch. Dist., 381 S.C. 262, 672 S.E.2d 809 (Ct. App. 2009).

The Court of Appeals rejected Bartley’s argument that she is totally disabled and that her psychological and physical problems affect more than just her back and hinder her employment, entitling her to additional benefits.  The Court of Appeals ruled there was substantial evidence to support the Appellate Panel’s determination that the 2002 accident did not cause or aggravate Bartley’s other conditions.  Id. at 274-75, 672 S.E.2d at 815.  The Court of Appeals further observed that this Court’s decision in Ellison II was not applicable to Bartley:

Although Bartley presented some evidence the Allendale incident [when she was accidently knocked down by a student on September 26, 2002] aggravated Bartley’s pre-existing conditions, the record also contains substantial evidence the Allendale incident did not cause or aggravate her conditions.  Substantial evidence may support finding either the Richland incident aggravated her pre-existing conditions or that her pre-existing conditions were not aggravated at all because she was experiencing the same problems before the accident.  Accordingly, Ellison II does not apply.  The Appellate Panel is the ultimate fact finder and when the facts conflict, as they do here, its findings are conclusive.  The record contains substantial evidence supporting the Appellate Panel’s decision.

Id. at 275, 672 S.E.2d at 815 (emphasis added).  The “Richland incident” referred to above by the Court of Appeals occurred when a student threatened to throw a desk at Bartley.

In Bartley it 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.  However, in Ellison II this Court held that aggravation was not a requirement but an alternative analysis:  “There is no requirement that the pre-existing condition aggravated the injury, or that the injury aggravated the pre-existing condition, so long as there is a greater disability simply from the ‘combined effects’ of the injury and the pre-existing condition.”  Ellison II, 371 S.C. at 164, 638 S.E.2d at 666.

The Court of Appeals recited the Ellison II standard in Bartley and noted that “the statute provides for the aggravation of a pre-existing condition as an alternative to the combined effects provision.”  Bartley, 381 S.C. at 273 n.4, 672 S.E.2d at 814 n.4.  However, the Court of Appeals stated Bartley “has a long history of suffering from depression and migraine headaches” as well as other ailments, and her problems could have been caused by circumstances that were unrelated to her 2002 workplace injury.[7] Id. at 275, 672 S.E.2d at 815.  Thus, it seems to rely upon the absence of proof of aggravation or causation.

It is not the province of this Court or the Court of Appeals to engage in fact-finding, as that is solely the function of the Commission.  The orders of both the commissioner and the Appellate Panel (which incorporated much of the commissioner’s order) were affected by an error of law.  The commissioner stated that he “d[id] not doubt that the Claimant’s future prospects of employment will be limited,” but that he “is not allowed to stack her personal ailments with her work related injury to make a finding of disability,” citingEllison I.  The Appellate Panel incorporated this finding into its order.  Thus, the Commission has not considered Bartley’s claims applying the proper legal standard and has not made specific factual findings as to Bartley’s other conditions because it made an initial determination that they could not be considered.

The Court of Appeals did not remand this case to the Commission but instead concluded Ellison II was not applicable.  In doing so, it arguably made findings of fact (such as the effect of the “Richland incident”) that were not made by the Commission and it also did not properly apply the legal standard in Ellison II because it focused on an aggravation analysis instead of a combined effects analysis, although it recited the language in Ellison II that indicated aggravation was not required.

The Commission, had it considered the application of the law in Ellison II, would have made additional findings of fact pertinent to this analysis that are missing from the record.  Thus, a remand to the Commission is necessary to allow it to make the necessary factual findings and legal conclusions to resolve Bartley’s claims.  See, e.g., Fox v. Newberry County Mem’l Hosp., 319 S.C. 278, 280, 461 S.E.2d 392, 394 (1995) (“The duty to determine facts is placed solely on the Commission and the court reviewing the decision of the Commission has no authority to determine factual issues but must remand the matter to the Commission for further proceedings.  The reviewing court may not make findings of fact as to basic issues of liability for compensation, where, to do so, would impose upon the court the function of determining such facts from conflicting evidence.” (internal citation omitted)); cf. Smith v. NCCI, Inc., 369 S.C. 236, 252, 631 S.E.2d 268, 276-77 (Ct. App. 2006) (“When an administrative agency acts without first making the proper factual findings required by law, the proper procedure is to remand the case and allow the agency the opportunity to make those findings.”).[8]

IV.  CONCLUSION

Bartley has a long and complicated history of medical problems, and determining the extent, cause, and effects of her conditions has been the subject of debate among her treating physicians.  The commissioner expressly applied the holding in Ellison I in finding Bartley was not allowed to “stack” her ailments in order to determine her overall disability, and this finding was adopted by the Appellate Panel.  The commissioner made no additional findings after making the initial determination that other conditions could not be considered.  The Commission’s decision was affected by an error of law; therefore, we reverse the decision of the Court of Appeals and remand the matter to the Commission for consideration of Bartley’s claims in light of this Court’s decision inEllison II.

REVERSED AND REMANDED.

TOAL, C.J., KITTREDGE and HEARN, JJ., concur. PLEICONES, J., concurring in result only.

[1]  Bartley has a complex medical history of physical ailments along with psychological conditions such as panic attacks and depression that have affected her for much of her adult life.

[2]  When Bartley reported pain throughout her body, the original physician also opined that she had fibromyalgia, which she had experienced previously.

[3]  “Foraminal stenosis” refers to a narrowing (stenosis) of the foramen (opening), i.e., the hole in a bone through which a spinal nerve passes as it exits the spine.  A foramen is at each level of the spine, with one on each side.  When the nerve becomes compressed, it can cause pain and numbness, tingling, and sensory abnormalities on the affected side.  See generallyhttp://www.nervous-system-diseases.com/foraminal-stenosis.html.  Depending on the location of the nerve being compressed, stenosis can result in a variety of problems, including pain that travels to the buttocks, leg, calf, and foot, or to the shoulder, arm, and hand. See, e.g., http://www.laserspineinstitute.com/back_problems/foraminal_stenosis/symptoms.

[4]  Bartley thereafter suffered several other conditions requiring medical treatment.  In September 2004, she had fusion surgery in her lower back at levels four and five due to the discovery of a facet cyst.  Bartley did not believe this lower back condition was related to her injury.  In May 2005, she had surgery on her right ankle.

[5]  This Court denied certiorari on the question whether the statute of limitations would preclude Bartley’s claims.  Consequently, no issue is before the Court in this regard.

[6]  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 and the parties do not argue the new version applies here.

[7]  To the extent Bartley contends her pre-existing conditions included a psychological disorder, this Court has previously held that a claimant is entitled to benefits for aggravation of a pre-existing condition of depression.  See Anderson v. Baptist Med. Ctr., 343 S.C. 487, 541 S.E.2d 526 (2001).

[8]  We note that many of the symptoms Bartley suffered (such as the pain radiating down to her buttocks, leg, and foot, and her complaints of numbness and tingling) have been reported to be associated with a diagnosis of foraminal stenosis, but this is a question of fact that should be evaluated by the Commission in the first instance, along with her arguments concerning the combined effects of her conditions.

Psychological Injury Claims in SC Workers’ Comp

Jan 21, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

In this recent SC Court of Appeals case, SC reaffirmed and clarified that so called “mental-mental” cases require a workers’ compensation claimant to suffer an “unusual or extraordinary” condition of his/here particular employment (emphasis added). Such burden of proof will require both factual testimony as well as expert testimony to prove both critical elements of this type case. Psychological claims are aggressively defended as they can have so many potential causes.

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 particular case. Compare our attorneys’ credentials to any other firm. Then call us at 877-374-5999 for a private, confidential consultation.

Raquel MARTINEZ, Employee, Respondent,
v.
SPARTANBURG COUNTY and S.C. Association of Counties Self-Insurance Fund, Carrier, Appellants.

Chadwick Dean Pye, of Spartanburg, and Kevin B. Smith, of Charleston, for Respondent.

WILLIAMS, J.

In this workers’ compensation appeal, Spartanburg County and South Carolina Association of Counties Self-Insurance Fund (Spartanburg County) contend the circuit court erred in concluding the Workers’ Compensation Commissioner’s (Single Commissioner) order was insufficient to enable appellate review. Further, to the extent the order was sufficient, the circuit court erred in finding Raquel Martinez (Martinez) experienced an “unusual or extraordinary” condition in the course of employment to warrant finding Martinez suffered a compensable mental injury. We agree and reverse.[1]

FACTS

Martinez, a twenty-eight year law enforcement veteran, was employed as a master deputy forensic investigator with the Spartanburg County Sheriff’s Office. As a forensic investigator,Martinez‘ job description included reporting to crime scenes, collecting evidence, and taking photographs of crime scenes. Additionally, Martinez came into contact with deceased bodies, attended autopsies, and processed fingerprints and other forensic evidence.

On April 4, 2005, Martinez was called to perform a forensic accident investigation involving the death of a child in Greer, South Carolina.^[2] At this point, Martinez only knew a child was killed, and the accident involved a former employee of the Spartanburg County Sheriff’s Office. When Martinez arrived at the scene, she was informed that Anthony Johnson, a Greenville County Deputy Sheriff and a former officer with the Spartanburg County Sheriff’s Office, accidentally killed his two-year-old daughter while backing his patrol car out of his driveway.

As part of Martinez‘ standard forensic investigation, she took measurements of the child’s body and photographed the front lawn of the house, the child’s body, the location of the patrol car, the interior of the house, and the undercarriage of the patrol car. Martinez testified all of these tasks were part of her ordinary job.

Approximately four months after the accident investigation, Ramon Martinez, Martinez‘ father (Father), received a phone call from Martinez‘ neighbor informing him that Martinez was “going up and down in the front yard, and she [was] talking weird.” After arriving at Martinez‘ house, Father was unable to locate Martinez and discovered her car windshield was “smashed to pieces,” and her house was in a state of disarray. Father discovered Martinez in some nearby bushes. At this point, Martinez wanted Father to meet an imaginary “little girl” that she was going to take on a trip. Martinez was admitted to Spartanburg Regional Medical Center and was diagnosed with delirium related to Benzodiazepine withdrawal symptoms after she abruptly stopped taking Xanax. Martinez continued to receive psychiatric and psychological treatment in 2005 and 2006.

Martinez subsequently filed a Form 50 claiming she experienced a mental breakdown as a result of the April 4, 2005 investigation. During the hearing before the Single Commissioner,Martinez indicated she had worked approximately one-hundred to one-hundred and fifty death calls, investigated “a couple dozen” crime scenes involving suspicious deaths, witnessed autopsies, and viewed burnt bodies at fire scenes as a forensic investigator. However,Martinez testified she never investigated a scene when a fellow officer was involved with the death of his own child, and she never investigated a violent crime when she knew the parties.Martinez further testified, “[She and Anthony Johnson] were not best friends. [But] [w]e were friends, and we were associates, and it’s a police officer.” After conducting the investigation,Martinez stated she cried about the child on the same night of the accident investigation and experienced nightmares.

Captain Stephen Denton, a twenty-year law enforcement veteran, testified the April 4, 2005 accident investigation ranked emotionally as the worst investigation in his career. In addition, he stated this accident was not ordinary because of Anthony Johnson’s prior affiliation with theSpartanburg County Sheriff’s Office. Moreover, Captain Denton indicated he noticed a change in Martinez‘ demeanor on the date of the accident. Specifically, Captain Denton stated,

I can’t imagine anybody that was present at the scene felt too good, you know, for days to follow. You don’t understand that unless you’ve seen it, and so it’s very hard for someone else to judge that, that had not seen it. However, given a reasonable amount of time to recuperate from something like that—and I don’t know what reasonable is, but within a week, week and a half, I could see that, you know, obviously, she was depressed, and within [a couple] three weeks, it showed in her work, in her habits.

Nonetheless, Captain Denton stated Martinez was fulfilling her ordinary job duties when she took photographs and measurements of the scene and moved the child’s body. He also stated the Spartanburg County Sheriff’s Office does not have a procedure that prohibits employees from working scenes involving victims they know.

The Single Commissioner concluded the April 4, 2005 investigation was not an “unusual or extraordinary” condition of Martinez‘ employment. The Single Commissioner also found Martinez failed to prove the April 4, 2005 investigation was the proximate cause of her mental breakdown. The Workers’ Compensation Commission Appellate Panel (Appellate Panel) adopted the Single Commissioner’s findings of fact and affirmed the Single Commissioner’s order in its entirety. On appeal, the circuit court reversed and remanded the decision of the Appellate Panel. The circuit court concluded the Single Commissioner’s order was not sufficiently detailed to enable appellate review, and was left to speculate whether the proper analysis was applied by the Single Commissioner. The circuit court also concluded even if the Single Commissioner’s findings were appropriate, the findings focused on the ordinary aspects of Martinez‘ job and not whether Martinez‘ work was unusual compared to her particular employment. The circuit court further concluded the Single Commissioner’s order was deficient as a matter of law on the issue of proximate cause, and the only conclusion that could be drawn from the evidence was that the April 4, 2005 investigation proximately caused her mental breakdown. This appeal followed.

STANDARD OF REVIEW

The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers’ Compensation Commission. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). The Commission is the ultimate fact finder in workers’ compensation cases and is not bound by the Single Commissioner’s findings of fact.Etheredge 230*230 v. Monsanto Co., 349 S.C. 451, 454, 562 S.E.2d 679, 681 (Ct.App.2002). The findings of the commission are presumed correct and will be set aside only if unsupported by substantial evidence. Lark, 276 S.C. at 135, 276 S.E.2d at 306.

LAW/ANALYSIS

A. Sufficiency of the Order

As an initial matter, Spartanburg County contends the circuit court erred in concluding the Single Commissioner’s order was not sufficiently detailed to enable appellate review. We agree.

The findings of fact made by the Appellate Panel must be sufficiently detailed to enable the reviewing court to determine whether the evidence supports the findings. Frame v. Resort Serv. Inc., 357 S.C. 520, 531, 593 S.E.2d 491, 497 (Ct.App.2004). “Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.” S.C.Code Ann. § 1-23-350 (2005).

The circuit court’s order stated,

In his Order, the Single Commissioner made three Findings of Fact which were relevant to the decision. Finding of Fact 14 was “investigating the death of a child, even the child of a former Sheriff’s deputy, was not an unusual or extraordinary condition of Claimant’s employment”; [Finding of Fact] 15 was Claimant failed to prove she encountered an unusual or extraordinary condition in her employment on April 4, 2005; and [Finding of Fact] 16 was Claimant failed to prove the accident investigation of April 4, 2005 was the proximate cause of her mental breakdown. The Single Commissioner gave no basis for his factual conclusion in Finding of Fact 14, and as to Findings of Fact 15 and 16, he simply stated to each of these two Findings of Fact that “[T]his finding is based on all the evident [sic] in the record.”

Here, even though the orders from the Commission give a summary of some of the testimony presented during the hearing, no basis for the Finding[s] of Fact 14, 15, and 16 is provided and, thus, this Court is left to speculate if the proper analysis was applied by the Commission and whether the factual conclusions upon which the law was applied has a substantial basis in the record. [footnote omitted] When an administrative agency acts without first making proper factual findings as required by law, the proper procedure is to remand the case and allow the agency the opportunity to make these findings. [citation omitted]

The circuit court’s order only emphasizes Findings of Fact 14, 15, and 16 as relevant to the Single Commissioner’s decision. However, the Single Commissioner’s order provides seventeen pages of evidence, sixteen findings of fact, and conclusions of law to support its decision. Additionally, the circuit court ignored other findings of fact the Single Commissioner discussed on the issue of whether Martinez experienced an “unusual or extraordinary” condition in her particular employment. These findings of fact provide a sufficient basis to allow appellate review. Specifically, the Single Commissioner’s order provides,

Finding of Fact 5

Claimant had been to an investigation previously while working for the Greenville County Sheriff’s Department in which a child’s head had been run over by a dump truck. Claimant testified that the accident did not bother her. She stated that if that type of situation bothered her, she would have never chosen to be a forensic investigator.

Finding of Fact 6

Claimant had investigated and worked up approximately 100-150 death cases in her 3-4 years as a forensic investigator. She had also investigated approximately 24 suspicious death/homicide cases and participated in approximately 24-26 autopsies. These investigations were a usual and ordinary part of her job. Claimant also testified about an investigation of an automobile accident in which an injured teenager had died in her arms.

Finding of Fact 7

When Claimant went to a crime scene, she would take up to 100 photographs and move the body to investigate anything underneath the body. She also took measurements and put up barriers to prevent people from seeing the accident scene. This was a part of her usual and ordinary job.

Finding of Fact 10

CPT Steve Denton testified that the accident scene of the child’s death on April 4, 2005 was a terrible sight but that Claimant was doing her ordinary job that day in investigating the death of the child. CPT Denton required the Claimant to stay and perform the accident investigation because that was her job. The fact that the death scene involved the death of a child of a former Spartanburg County Deputy Sheriff did not remove the situation from being a part of her regular job.

Finding of Fact 11

Spartanburg County Sheriff’s Office had no rule prohibiting its employees from going to accident scenes where they knew the victim. CPT Denton testified that he had always maintained and still maintained that no matter who the victim was, the Sheriff’s Department investigators were required to work the accident scene.

The foregoing findings of fact from the Single Commissioner’s order were sufficient to enable appellate review, such that the underlying reasons supporting the Single Commissioner’s conclusion were not left to speculation. Consequently, we find the circuit court erred in concluding the Single Commissioner’s order was deficient in this regard.

B. “Unusual or Extraordinary” Condition of Employment

Spartanburg County contends the circuit court erred in concluding Martinez experienced an “unusual or extraordinary” condition in her particular employment. We agree.

Mental or nervous disorders are compensable provided the emotional stimuli or stressors are incident to or arise from “unusual or extraordinary” conditions of employment. Doe v. S.C. Dep’t of Disabilities & Special Needs, 377 S.C. 346, 349, 660 S.E.2d 260, 262 (2008). The requirement of “unusual or extraordinary” conditions in employment, for a claimant to recover for a “mental-mental” injury refers to conditions of the particular job in which the injury occurs, not to conditions of employment in general. Frame, 357 S.C. at 233*233 529, 593 S.E.2d at 496. To recover for mental injuries caused solely by emotional stress, or “mental-mental” injuries, the claimant must show she was exposed to unusual and extraordinary conditions in her employment and these unusual and extraordinary conditions were the proximate cause of her mental disorder. Tennant v. Beaufort Cnty. Sch. Dist., 381 S.C. 617, 621, 674 S.E.2d 488, 490 (2009).

The Single Commissioner found Martinez did not experience an “unusual or extraordinary” condition in her employment on April 4, 2005 because Martinez took photographs and measurements of the investigation scene and moved the child’s body. Additionally, the Single Commissioner noted Martinez witnessed autopsies, previously investigated twenty-four suspicious death/homicide cases, and worked approximately one-hundred to one-hundred and fifty death cases. The Single Commissioner also noted the Spartanburg County Sheriff’s Office did not have a rule prohibiting its employees from investigating scenes in which they knew the victim. Martinez does not dispute her job duties during the April 4, 2005 investigation were within her ordinary employment. However, Martinez contends the April 4, 2005 investigation was an “unusual or extraordinary” condition of her employment because the child’s father, Anthony Johnson, was a former co-worker at the Spartanburg County Sheriff’s Office.

While we empathize with the undoubtedly difficult nature of Martinez‘ job, we find Martinez‘ argument unpersuasive. Despite the tragic nature of the accident, the Single Commissioner found that based on Martinez‘ testimony, Martinez and Anthony Johnson’s friendship was not such a close degree as to render the investigation an unusual and extraordinary condition of employment. Specifically, the Single Commissioner stated in Finding of Fact 4:

Claimant contended that working the death case of a child who was run over by a fellow police officer was unusual and extraordinary. She stated that police officers have a “special bond.” However, Claimant was not a close friend of the fellow officer, Anthony Johnson, although she worked on the same shift, and they would occasionally see each other at shift changes. She did not personally know the officer’s wife or child, had never visited their home, and had never socialized with Anthony Johnson or his family.

Moreover, Captain Denton testified about the Spartanburg County Sheriff Office’s procedure regarding investigations of victims that are acquainted with employees. Specifically, Captain Denton stated that, while in hindsight it may not have been the best protocol, he always required detectives to investigate incidents regardless of their relationship with the victims.^[3]

Based on the evidence in the record, we conclude there is substantial evidence to support the Single Commissioner’s finding that Martinez did not suffer an “unusual or extraordinary” condition of her particular employment. Taylor v. S.C. Dep’t of Motor Vehicles, 368 S.C. 33, 36, 627 S.E.2d 751, 752 (Ct.App.2006) (stating substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence that, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action).

Because we reverse the circuit court and conclude there is substantial evidence that Martinezdid not suffer an “unusual or extraordinary” condition in her particular employment, we need not address the issue of proximate cause. See Futch v. McAllister Towing of Georgetown, Inc.,335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (stating an appellate court need not address remaining issues when a decision on a prior issue is dispositive).

CONCLUSION

Accordingly, the circuit court’s decision is

REVERSED.

SHORT, J., concurs.

FEW, C.J., concurs in a separate opinion.

FEW, C.J., concurring.

I concur in the portion of the majority opinion addressing the sufficiency of the commission’s order. I also agree with the majority that the circuit court erred in reversing the commission. I write separately to address what I believe is the basis of the circuit court’s ruling that Investigator Martinez‘ employment conditions were extraordinary and unusual. The circuit court did not rule on the basis of a lack of substantial evidence supporting the commission’s factual finding. Rather, the circuit court reversed the commission on a question of law, finding the commission “failed to conduct the proper analysis.” I also write to explain that the circuit court erred in reversing the commission’s finding of a lack of proximate cause.

A. “Unusual or Extraordinary” Conditions of Employment

The circuit court reversed the commission’s determination that Investigator Martinez‘ stressful employment conditions were not extraordinary and unusual based on a point of law, not based on the sufficiency of the evidence. In the introductory section of the order, before even describing the facts, the circuit court stated “the decision of this Court is that the Order from the Full Commission should be reversed because the analysis . . . is flawed by misapplying,as a matter of law, the `unusual or extraordinary conditions of employment’ test for determining compensability of mental injuries.” (emphasis added). The circuit court made several other statements that it was ruling on a point of law and ultimately concluded: “The Commission’s Order in the present case is void of [the analysis required by Doe v. SCDDSN ^[4]] and, therefore, as a matter of law, is reversed.” The circuit court never mentioned the substantial evidence standard nor even attempted to explain that the evidence was not sufficient to support the commission’s decision. As Appellant stated in its brief, “the Circuit 236*236 Court never addressed the Commission’s findings of fact and never determined whether the findings were supported by substantial evidence.” Rather, the circuit court ruled that the commission committed a legal error in its analysis of whether Investigator Martinez‘ conditions of employment were extraordinary and unusual.

The circuit court erred in reversing the commission on this point of law. Its ruling is based on a misapplication of the reasoning of Doe to the facts of this case. The only aspect of Investigator Martinez‘ employment conditions alleged to be extraordinary and unusual is the nature and character of the April 4, 2005 investigation. Otherwise, there is no suggestion that she encountered anything extraordinary or unusual in her work. Specifically, Investigator Martinez does not allege any change in her employment conditions over the long term.

Doe, on the other hand, was based on a change in the claimant’s long-term employment conditions. The claimant in Doe was employed by the South Carolina Department of Disabilities and Special Needs as a licensed practical nurse. 377 S.C. at 348, 660 S.E.2d at 261. After she worked there for approximately eighteen years, the Department began to make changes in the operation of her facility, resulting in a dramatic increase in the level of noise and violence in her unit. Id.

As a result [of the changes], the patient population in Claimant’s unit changed from being a passive group to a mixed group of passive and aggressive patients. The record indicates Claimant’s unit went from being “a fairly pleasant unit to work in” to being “kind of a dumping ground” where none of the other nurses wanted to work.

Id. The supreme court found that the conditions of the claimant’s employment were extraordinary and unusual as a result of the changes at her facility. The supreme court discounted the fact that many of the individual incidents in the claimant’s new environment were the same as before and focused on what was different about the new environment. The court stated:

The record indicates that in the spring of 1997, with the new mix of passive and aggressive patients in Claimant’s unit, behavior problems escalated because of the “domino effect” created when an aggressive patient acted out. Claimant had never before worked with a mix of passive and aggressive patients. No other unit had a mix of passive and aggressive patients. In fact, Department made changes after a DHEC survey criticized Department for housing diverse patients together.

377 S.C. at 350, 660 S.E.2d at 262.

The supreme court faulted the commission and the court of appeals for focusing on the fact that nurses had always dealt with aggressive patients and had even been injured by them before. Id. Thus, the supreme court rejected an analysis of similarities in individual incidents and focused instead on the differences caused by changes in long-term conditions. Id. (“A review of the record, however, indicates that the testimony [of similarities in individual incidents] relied upon is taken completely out of context and does not support the Court of Appeals’ conclusion.”). Focusing on the changes in overall, long-term employment conditions, the supreme court noted that neither of the two witnesses relied on by the court of appeals testified “that it was usual for a nurse to deal with a mix of passive and aggressive patients.”377 S.C. at 350-51, 660 S.E.2d at 262 (emphasis added). The supreme court found the overall, long-term changes in employment conditions resulting in a “mix of passive and aggressive patients” was an extraordinary and unusual condition of employment which caused the claimant’s mental-mental injury and instructed the commission to award benefits. 377 S.C. at 351-52, 660 S.E.2d at 262-63.

Here, the commission applied the proper test for determining whether Investigator Martinez‘ conditions of employment were extraordinary and unusual. See Shealy v. Aiken Cnty., 341 S.C. 448, 459, 535 S.E.2d 438, 444 (2000) (holding the standard to be applied is whether the conditions of employment were extraordinary or unusual compared to the normal conditions of claimant’s employment); see also Doe, 377 S.C. at 349-50, 660 S.E.2d at 262 (discussingShealy). The commission described some of the investigations which “were a usual and ordinary part of [Investigator Martinez‘] job.” Those investigations included one “in which a child’s head had been run over by a dump truck” and “an automobile accident in which an injured teenager had died in her arms.” The majority described other similar investigations conducted by Investigator Martinez. Describing how she conducted investigations such as those, the commission made this factual finding:

7. When claimant went to a crime scene, she would take up to 100 photographs and move the body to investigate anything underneath the body. She also took measurements and put up barriers to prevent people from seeing the accident scene. This was a part of her usual and ordinary job.

The commission then focused on whether what she did on April 4, 2005, was extraordinary and unusual compared to her usual and ordinary job and made this factual finding:

10. [Captain] Steve Denton testified that the accident scene of the child’s death on April 4, 2005 was a terrible sight but that Claimant was doing her ordinary job that day in investigating the death of the child. [Captain] Denton required the Claimant to stay and perform the accident investigation because that was her job. The fact that the death scene involved the death of a child of a former Spartanburg County Deputy Sheriff did not remove the situation from being a part of her regular job.

In Doe, the supreme court ruled that despite the similarities in individual incidents, there were changes in the overall, long-term conditions of the claimant’s employment, making the conditions which caused the injury extraordinary and unusual. 377 S.C. at 349-50, 660 S.E.2d at 262. Here, Investigator Martinez does not argue that there were any long-term changes. Rather, she argues that her mental-mental injury arose out of a single investigation. When she finished this particular investigation, she continued working on the same type of cases in the same manner as before. Had she been switched to an overall pattern of investigating only particularly traumatic cases, then perhaps the reasoning of Doe would apply. Under these facts, however, it does not.

Finally, I emphasize that one particular event in a claimant’s work environment can constitute extraordinary and unusual conditions such that any resulting mental-mental injury would be compensable. See, e.g., Powell v. Vulcan Materials Co., 299 S.C. 325, 326, 384 S.E.2d 725, 725 (1989) (affirming commission’s award of benefits where claimant suffered “mental, 239*239emotional, and psychological injury” following a single-incident verbal altercation with a supervisor). In such a case, however, whether the individual event meets the test for extraordinary and unusual set forth by the supreme court in Shealy is a question of fact for the commission to decide. On appeal from the commission’s decision, if substantial evidence supports it, an appellate court must affirm. Forrest v. A.S. Price Mech., 373 S.C. 303, 306, 644 S.E.2d 784, 785-86 (Ct. App.2007). In this case, the circuit court never ruled as to whether substantial evidence supports the commission’s decision that Investigator Martinez‘ conditions of employment were not extraordinary and unusual. As the majority has explained, the commission’s decision is supported by substantial evidence.

B. Proximate Cause

The circuit court also reversed the commission’s finding of a lack of proximate cause. The circuit court stated:

[T]he Commission’s finding [as to proximate cause] is clearly erroneous, applying the substantial evidence standard of review, because the only conclusion that can be drawn from the medical information is that there exists the necessary showing of proximate cause to link the accident investigation of her friend’s child’s death and her mental breakdown.

In making this statement, the circuit court ignored the following findings of fact made by the commission:

8. Claimant had other stressors in April 2005 that were not work related, including the death from AIDS of her ex-husband’s cousin with whom she was very close. Claimant was treated for anxiety, insomnia, and depression from these non-work related situational stressors including medications and hospitalization.

9. Claimant did not mention the investigation involving the death of a child on April 4, 2005 until approximately four months later after being hospitalized for an emotional breakdown.

16. Claimant failed to prove that the accident investigation on April 4, 2005 was the proximate cause of her mental breakdown, said finding being based on all the evidence in the record.

The record contains ample evidence to support these findings. For example, on April 19, 2005, two weeks after Investigator Martinez‘ investigation into the death of her fellow officer’s child, she went to her family doctor for stress. In the medical note for that visit, the doctor wrote:

She is very upset and crying. A very close friend and relative, a cousin with whom she was very close over the years, passed away yesterday. She is very upset about it. They were very close ever since they were little kids. She is very upset that she did not get to the hospital in time to say goodbye before he passed away.

Investigator Martinez returned to her family doctor on eight occasions between April 25 and June 24, 2005, and did not mention stress from the April 4 investigation even once. On August 7, 2005, Investigator Martinez was admitted to Spartanburg Regional Medical Center for “behavior suggesting psychiatric problems.” Her treating psychiatrist diagnosed her with Benzodiazepine withdrawal delirium, depression, and anxiety disorder. In the discharge summary on August 9, 2005, the psychiatrist stated: “The patient apparently had recent problems with uncontrollable hypertension and also had problems with anxiety, insomnia and depression related to the death of her best friend who apparently was a male cousin.” Martinez was admitted to the Carolina Center for Behavioral Health for a psychiatric evaluation on August 10, 2005. One of the forms filled out for this admission contains a section entitled “Precipitating Events,” in which it is noted that Martinez stated: “My cousin died mid April 2005 and I took Xanax for my nerves. I stopped taking Xanax 1-2 weeks ago and became psychotic.”

These medical records contain no mention of the April 4, 2005 investigation or any other job-related stress. In light of these facts, the commission’s determination that the claimant failed to prove proximate cause is supported by substantial evidence. The circuit court erred in reversing the finding.

[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Although the accident occurred in Greer, South Carolina, the Spartanburg County Sheriff’s Office conducted the forensic investigation because the Greer Police Department did not have a forensic unit.

[3] Martinez did not know Anthony Johnson’s daughter. Therefore, the lack of a personal relationship is additional evidence that Martinez did not experience an “unusual or extraordinary condition” on April 4, 2005 because the Spartanburg County Sheriff’s Office policy specifically contemplates employees investigating scenes in which they are acquainted with the victim.

[4] Doe v. S.C. Dep’t of Disabilities & Special Needs, 377 S.C. 346, 660 S.E.2d 260 (2008).

Mandatory Mediation in SC Workers’ Comp Cases – Something We Can All Agree On

Jan 14, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation

Workers’ Comp Mediation is Just Around the Corner (by Stanford E. Lacy, Founding Partner, Collins & Lacy, P.C.)