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

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

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

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

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

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

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Beau D. Cranford, Employee, Appellant,

v.

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

Appeal From Richland County
Appellate Panel, Workers’ Compensation Commission

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

AFFIRMED IN PART and REMANDED IN PART

Stephen B. Samuels, of Columbia, for Appellant.

Michael W. Burkett, of Columbia, for Respondents.

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

FACTS

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

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

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

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

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

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

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

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

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

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

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

STANDARD OF REVIEW

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

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

LAW/ANALYSIS

I.  Temporary Disability Compensation

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

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

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

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

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

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

II.  Maximum Medical Improvement

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

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

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

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

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

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

III.  Permanent Disability Benefits

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

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

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

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

IV.  Additional Medical Treatment

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

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

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

CONCLUSION

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

Accordingly, the Appellate Panel’s decision is

AFFIRMED IN PART and REMANDED IN PART.

SHORT and GEATHERS, JJ., concur.

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

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

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

SC Workers’ Compensation – Occupational Disease Claims – Statute of Limitations

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

This recent SC Supreme Court decision discusses when the statute of limitations begins to run in occupational disease claims. Occupational disease cases are very complicated both legally and medically. A diagnosis can start the SOL in conjuction with when an injured worker is no longer able to work because of a work related condition. Better make sure your attorney is experienced in handling these type of claims. A mistake in timing can waive your claim forever.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Carolyn Holmes, Petitioner,

v.

National Service Industries, Inc., and New Hampshire Insurance Company, c/o Gallagher Bassett Services, Inc., Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Charleston County
Deadra L. Jefferson, Circuit Court Judge

Opinion No. 27059
Heard May 25, 2011 – Filed October 24, 2011

AFFIRMED

Malcolm M. Crosland, Jr, of The Steinberg Law Firm, of Charleston, for Petitioner.

Weston Adams, III, and William Thomas Bacon, IV, of McAngus, Goudelock & Courie, of Columbia, for Respondents.

ACTING CHIEF JUSTICE PLEICONES:  We granted certiorari to review the Court of Appeals’ opinion in Holmes v. Nat’l Servs. Indus., Op. No. 2009-UP-364 (S.C. Ct. App. filed June 25, 2009).[1]  We affirm.

FACTS

Petitioner began working for respondent National Service Industries (“National”), a linen company, at its Charleston laundering facility in August 1984.  According to petitioner, the work environment at the facility was “very hot” and “sticky” with “a lot of lint and dust in the air,” and was poorly ventilated.  Petitioner was exposed to the fumes of bleach and did not wear a protective mask.

In 1992, petitioner began experiencing breathing and sinus problems.  Petitioner never experienced breathing or sinus problems prior to working for National.  Petitioner’s breathing was “good” when she was away from work.  In 1993, National transferred petitioner to its Atlanta facility where the working conditions were worse than in the Charleston facility.  Petitioner ultimately left her employment with National because the working conditions were making her breathing problems worse.

In 1995, petitioner visited Dr. Jefrey Lieberman, who diagnosed petitioner as suffering from sarcoidosis, a respiratory and pulmonary condition.  Petitioner testified Dr. Lieberman told her he did not know what caused her sarcoidosis and that, in light of this statement, she took no further steps to determine the cause of her condition.

In July 2005, petitioner visited Dr. Michael Spandorfer.  Dr. Spandorfer stated in his report that it was unclear whether petitioner’s work exposure at National caused her sarcoidosis, but that it was more likely that petitioner’s exposure to the airborne particles and fumes worsened her condition, which had previously developed.

Petitioner filed a workers’ compensation claim alleging a compensable injury by accident to her lungs and respiratory system arising out of and in the scope of her employment with National on July 12, 2005, the date she alleges she first discovered her sarcoidosis was related to her employment.

The single commissioner found petitioner sustained a compensable injury by accident to her lungs which was discovered on July 12, 2005.

The full commission reversed the commissioner, finding petitioner’s claim was barred by the two-year statute of limitations.  Specifically, the full commission found petitioner was aware of her working conditions and, with some diligence on her part, could have discovered she had a claim more than two years before her filing date.

Petitioner appealed.  The circuit court and Court of Appeals, pursuant to Rule 220(b), SCACR, affirmed the full commission’s determination that petitioner failed to file her claim within the statute of limitations.

STANDARD OF REVIEW

In workers’ compensation cases, the Commission is the ultimate fact finder.  Jordan v. Kelly Co., 381 S.C. 483, 674 S.E.2d 166 (2009).  An appellate court must affirm the findings made by the Commission if they are supported by substantial evidence.  Pierre v. Seaside Farms, Inc., 386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010).  “Substantial evidence is not a mere scintilla of evidence, but evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached.”  Id.  The substantial evidence test “need not and must not be either judicial fact-finding or a substitution of judicial judgment for agency judgment;” and a judgment upon which reasonable men might differ will not be set aside.  Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981) (quoting Dickinson-Tidewater, Inc. v. Supervisor of Assess., 273 Md. 245, 329 A.2d 18, 25 (Md. 1974)).

LAW/ANALYSIS

Petitioner argues the Court of Appeals erred in holding substantial evidence in the record supported the full commission’s finding that petitioner’s claim was barred by the statute of limitations.  We disagree.

The right to workers’ compensation for an injury by accident “is barred unless a claim is filed with the commission within two years after an accident . . . .”  S.C. Code Ann. § 42-15-40 (Supp. 2010).

Under the discovery rule, the statute of limitations begins to run from the date the claimant knew or should have known that, by the exercise of reasonable diligence, a cause of action exists.  Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 20, 416 S.E.2d 639, 640 (1992).

Whether petitioner knew or should have known that her sarcoidosis was related to her employment with National over two years before filing her claim in 2005 is a question of fact for the commission.  In our view, the Court of Appeals correctly held that substantial evidence in the record supported the full commission’s finding that petitioner’s claim was barred by the statute of limitations.  Considering the record as a whole, there is substantial evidence that would allow reasonable minds to reach the conclusion that petitioner should have known she had a compensable injury when first diagnosed with sarcoidosis.  Pierre, supra.  There is evidence petitioner knew or should have known as early as 1992 her work environment was negatively affecting her health.  Petitioner testified she experienced breathing problems and lesions when she was working at National’s Charleston facility.  Petitioner also testified her breathing was “good” when she was away from work and that she ultimately left her employment with National because the working conditions were making her breathing problems worse.  Although reasonable minds may differ as to whether petitioner should have known after being diagnosed with sarcoidosis that she had a compensable injury, this is not sufficient to set aside the judgment of the Appellate Panel.  Lark, supra.

We requested the parties address whether the commission’s findings regarding compensability and causation are the law of the case.  Because we affirm the Court of Appeals’ opinion regarding the statute of limitations issue, we decline to address this issue. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 518 S.E.2d 591 (1999) (when one issue is dispositive, the remaining issues need not be addressed).

CONCLUSION

The Court of Appeals correctly found there was substantial evidence in the record to support the full commission’s findings that petitioner’s claim was barred by the statute of limitations.  Accordingly, the opinion of the Court of Appeals is

AFFIRMED.

KITTREDGE, J., and Acting Justice E. C. Burnett, III, concur.  BEATTY, J., dissenting in a separate opinion in which Acting Justice James E. Moore, concurs.

JUSTICE BEATTY:  I respectfully dissent, as I believe the substantial evidence in the record demonstrates Carolyn Holmes’s claim for workers’ compensation benefits was filed within two years of the date she knew or reasonably should have known that she had sustained a compensable injury.  It is not the mere existence of the injury, but also the reasonable discovery of its compensablenature, i.e., the nexus between the injury and the claimant’s employment, that is required to trigger the running of the statute of limitations.  Holmes saw no fewer than half a dozen different doctors, none of whom related her ongoing medical problems to her employment until 2005, and Holmes timely filed her claim two months thereafter.  Holmes, as a layperson, should not be held to a higher degree of medical skill than her treating physicians.  This is especially true in light of the fact that medical experts universally acknowledge that sarcoidosis is a rare condition of unknown etiology that can encompass a multitude of seemingly unrelated symptoms.  The discovery and evaluation of this complex condition is uniquely difficult, so a review of the events leading to Holmes’s claim is illustrative.

I.

National Service Industries, Inc. (“National”) is a holding company for National Linen Service Corp., a textile rental business that supplies towels, washcloths, and sheets to hotels and restaurants.  Holmes began working for National at its Charleston laundering facility in August 1984.  It is undisputed that the building was very hot and poorly ventilated, and the air contained a large amount of dust, lint, and chemical fumes.  National provided hair nets to its employees, but did not offer dust masks or any other form of respiratory protection.

In 1992, approximately eight years after Holmes began working for National, she began to have breathing and sinus problems, and some lesions appeared on her skin.  Holmes took over-the-counter medications that seemed to help.  The relief was short-lived, however, and Holmes eventually sought medical care before transferring to another National facility in Atlanta in 1993.  Holmes’s symptoms worsened, and she left National in 1994 after working at the Atlanta location for six months.

Holmes next worked for United Parcel Service for a year, and then worked for six months at the Shepherd Center, a rehabilitation hospital.  During this time, Holmes’s sinus issues remained the same.  In 1995, during her tenure at Shepherd, Holmes sought treatment at Piedmont Hospital in Atlanta.  The medical staff there diagnosed her as having allergy and sinus conditions and provided treatment in accordance with this diagnosis.

Holmes’s symptoms persisted, so she again sought treatment and was seen later in 1995 by Dr. Jefrey D. Lieberman.  Dr. Lieberman noted Holmes was suffering at that time from congestion with bloody drainage, “lumps” on various parts of her legs, upper arms, and left cheek, and changes in pigmentation on her face.  Dr. Lieberman diagnosed Holmes for the first time as having sarcoidosis, a highly variable, multi-systemic autoimmune disorder, and opined that her skin condition was indicative of the sarcoidosis and “that her sinus symptoms [were] secondary to the same process.”  He placed her on a course of medication.  During this treatment, some of Holmes’s symptoms improved.  Holmes inquired as to the cause of her sarcoidosis and Dr. Lieberman told Holmes there was no known cause.  He never advised her there was any possibility that it could be work-related.  Holmes stated that, in light of Dr. Lieberman’s statement, she had no reason to believe her condition could be related to her work.  Rather, it was her understanding that sarcoidosis was something that “just happen[s]” or “just comes.”

After working at Shepherd, Holmes was employed by Oak Hill Farm, a wine distributor, where her sinus symptoms continued unabated.  Holmes subsequently changed doctors, but none of these doctors ever related her sarcoidosis to her employment.

Since her initial symptoms, Holmes had consulted at least half a dozen doctors before she was seen in 2005 by Dr. Michael Spandorfer, of Charleston.  Although Dr. Spandorfer could not ascertain its cause, he determined that Holmes’s sarcoidosis was aggravated by her employment with National from 1984 to 1994 and her exposure to airborne particulates and fumes.  Dr. Spandorfer stated in a report dated July 12, 2005 that the work conditions at National triggered what could have been a dormant sarcoidosis condition.  Dr. Spandorfer also diagnosed Holmes with occupational-onset asthma.  This was the first time that a medical professional had ever linked Holmes’s wide range of physical problems to her employment at National.

On September 7, 2005, less than two months after Dr. Spandorfer’s evaluation, Holmes filed her workers’ compensation claim.  A single commissioner of the South Carolina Workers’ Compensation Commission concluded Holmes sustained a compensable injury by accident on July 12, 2005, “the date o[n] which the Claimant reasonably discovered the compensability of [her] injuries.”

In a split decision (2-1), the Appellate Panel reversed.  The Appellate Panel, noting it could make its own findings of fact, found an employment relationship existed at the time of Holmes’s injury by accident and that the parties had stipulated the amount of Holmes’ average weekly wage and compensation rate.  It further found that Holmes suffered from sarcoidosis and occupationally-induced asthma, “which was aggravated by, and whose development was contributed to by, her employment and exposure to airborne dust, fumes, and particulate matter,” and that she will require ongoing medical treatment for her pulmonary injury.  However, the Appellate Panel lastly found and concluded that Holmes’s claim was, nevertheless, barred by the two-year statute of limitations contained in section 42-15-40 of the South Carolina Code.

The dissenting member of the Appellate Panel stated he would affirm the commissioner because throughout all of her visits to physicians, none ever indicated Holmes’s sarcoidosis or sinus problems were related to her work at National until Dr. Spandorfer made this determination in 2005.  Further, Dr. Lieberman told Holmes that he did not know where her sarcoidosis came from, and there is no evidence in the record that would indicate Holmes was negligent in relying on Dr. Lieberman’s expert medical opinion.

Holmes appealed, challenging only the Appellate Panel’s finding that the statute of limitations had run on her claim.  She now appeals from the affirmance of the Court of Appeals.  Thus, the only issue before this Court is the timeliness of Holmes’s claim.

II.

“Under the discovery rule, the statute would begin to run from the date [the claimant] either knew or should have known of hercompensable injury.”  Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 20, 416 S.E.2d 639, 640 (1992) (emphasis added).  The claimant’s knowledge of an injury, in and of itself, is not enough to commence the running of the statute of limitations.  Rather, the claimant must also know or reasonably should have known that the injury is compensable.  Compensability is the gravamen of the claim.  The claimant must exercise reasonable diligence in discerning compensability.  See Snell v. Columbia Gun Exch., Inc., 276 S.C. 301, 303, 278 S.E.2d 333, 334 (1981) (“The exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist.  The statute of limitations begins to run from this point . . . .”).

The alleged lack of diligence by Holmes is the cornerstone of the Appellate Panel’s finding that the statute of limitation bars her claim.  The Appellate Panel found that Holmes knew or reasonably should have known that she had a compensable injury based on her sarcoidosis diagnosis in 1995.  Further, it found her knowledge of her work conditions and her symptoms should have also alerted her to the compensability of her injury.

In my opinion, the substantial evidence in the record does not support these findings.  Compensability requires a nexus between the injury and the employment that is known, or reasonably should have been known, by the claimant.  The requisite nexus between Holmes’s sarcoidosis and her employment at National could not have been known by Holmes before 2005, and she should not be charged with this knowledge at a time when it was not even known by the many medical experts who treated her.

The undisputed facts establish that in 1995 Dr. Lieberman, while diagnosing Holmes with sarcoidosis, failed to advise her of any causal relationship between her condition and her work at National.  Instead, he told her that the cause of sarcoidosis was unknown and that her breathing and sinus problems were secondary to the sarcoidosis.

As noted by the dissenting member of the Appellate Panel, Holmes was entitled to rely upon Dr. Lieberman’s expert medical opinion.  The mere diagnosis of her sarcoidosis condition, without more, does not give rise to a compensable injury under our workers’ compensation law, and Holmes could not simply assume the condition was work related in the absence of expert medical evidence.  See Mauldin, 308 S.C. at 20, 416 S.E.2d at 640 (stating a workers’ compensation claim must be for a “compensable” injury); cf. Hanks v. Blair Mills, Inc., 286 S.C. 378, 335 S.E.2d 91 (Ct. App. 1985) (observing there are “non-compensable causes” that can accelerate or aggravate an occupational illness).  Based on Dr. Lieberman’s statement, a reasonable person would have believed that sarcoidosis is a malady, not unlike cancer, whose occurrence is both unfortunate and unpredictable.[2]

Dr. Lieberman’s medical opinion is consistent with existing medical knowledge, which universally recognizes that sarcoidosis is a rare condition whose etiology is unknown by medical experts, that it can affect any organ in the body, and that its symptoms are highly variable from patient to patient.  See  Booker v. Int’l Rivercenter, 905 So. 2d 498, 502 (La. Ct. App. 2005) (noting a physician’s testimony that sarcoidosis has no known cause); Hatem v. Bryan, 453 S.E.2d 199, 200 (N.C. Ct. App. 1995) (stating the plaintiff “suffered from sarcoidosis, a chronic disease process of unknown cause which may affect any organ or tissue of the body”).

It is also consistent with the fact that Dr. Spandorfer, likewise, was unable to definitively state the origin of Holmes’s sarcoidosis in 2005.  However, Dr. Spandorfer was, in contrast to Dr. Lieberman and Holmes’s prior physicians, able to discern a link between what might have been a dormant underlying condition and Holmes’s employment at National in his report of July 12, 2005.  In addition, July 12, 2005 is the first date Holmes was advised by Dr. Spandorfer that she also suffered from occupationally-induced asthma related to her work at National.

The record as a whole indicates that the variety of complex symptoms Holmes experienced, such as the respiratory problems, lumps, skin lesions, changes in skin pigmentation, joint pain, and swelling of the lower extremities, among others, were all within the wide range of symptoms that can arise with sarcoidosis. At the same time, these symptoms were also indistinguishable from many other maladies.  Merely being aware of her sarcoidosis symptoms would not alert Holmes to the compensability of her injury, especially when her treating physician told her sarcoidosis has no known cause and that her symptoms were secondary to the disease itself.  Moreover, although Holmes commented at one point that her symptoms seemed to temporarily improve when she was away from work, Holmes also testified that her symptoms temporarily improved when she began taking over-the-counter medications, but ultimately, the symptoms persisted, even as she changed employers and work environments.  Consequently, there was no definitive pattern to her condition.

The unique character of sarcoidosis undoubtedly made it more difficult for the medical experts to analyze as compared to conditions that uniformly manifest specific symptoms in a localized area.  The fact that the current state of medical knowledge ascribes no known cause for this condition also proved to be an impediment to Holmes’s physicians relating her sarcoidosis to her employment until it had progressed to the point where the connection was made by Dr. Spandorfer.  Holmes went to a variety of physicians seeking medical treatment for her evolving array of symptoms.  As a layperson, Holmes should not be penalized for, in essence, failing to detect what her own treating physicians had failed to discover prior to 2005.  Cf. Youngblood v. U.S. Silica Co., 130 S.W.3d 461 (Tex. App. 2004) (reversing the grant of summary judgment based on the two-year statute of limitations and finding the fact that the employee continued to visit doctors from 1992 to 1997 was some evidence that he exercised reasonable diligence in ascertaining the cause of his silicosis and the employee did not discover his illness was work related and could not have assumed it was work related prior to the time he was so informed by a doctor in 1997).

Based on the foregoing, I would hold Holmes’s claim regarding her sarcoidosis condition was filed within two years of when she knew or reasonably should have known that she had sustained a compensable injury.  In addition, while the Appellate Panel found Holmes knew of her sarcoidosis diagnosis in 1995, there has been no allegation or finding that Holmes’s occupationally-induced asthma existed at the time her sarcoidosis was diagnosed.  Rather, it subsequently developed as Holmes’s health problems progressed and was diagnosed in 2005.  The Appellate Panel’s discussion regarding the statute of limitations focused only on the timing of Holmes’s sarcoidosis diagnosis and her alleged failure to timely determine the relation of her sarcoidosis to her employment.  The diagnosis of Holmes’s sarcoidosis has no bearing on her later-developed asthma.  Holmes’s claim regarding her asthma was timely asserted within two years of when she knew or reasonably should have known she had a compensable injury in this regard.

The Court observed in Mauldin that statutes of limitation should not be applied mechanically, but in a manner consistent with both their underlying purposes and the need to provide substantial justice to all parties.  Mauldin, 308 S.C. at 21, 416 S.E.2d at 640.  The desire to protect defendants from false or fraudulent claims “must be balanced against a plaintiff’s interest in prosecuting an action and pursuing [her] rights.”  Id.  “Plaintiffs should not suffer where circumstances prevent them from knowing they have been harmed.”  Id.  “The statute of limitations applicable to workers’ compensation claims, like the Workers’ Compensation Act as a whole, should be given liberal construction, and any reasonable doubts should be resolved in favor of coverage.”  Rogers v. Spartanburg Reg’l Med. Ctr., 328 S.C. 415, 418, 491 S.E.2d 708, 710 (Ct. App. 1997).

Allowing Holmes to recover for her injuries is consistent with the underlying purpose and objectives of the statute of limitations.  Holmes’s appeal presents an unusual case of a claimant with a rare condition; there is no allegation of a false or fraudulent claim and National has not been disadvantaged in its ability to evaluate the validity of the claim.  As this Court has previously held, any doubts regarding the statute of limitations should be resolved in favor of coverage.  This principle is particularly relevant in light of the fact that the Appellate Panel was itself divided on the statute of limitations issue.

III.

Having determined Holmes’s claim is not time-barred, I would further hold the unchallenged factual findings of the Appellate Panel as to the compensability of Holmes’s claim and her stipulated compensation rate are the law of the case.  Therefore, I would reverse the decision of the Court of Appeals and remand this matter to the Commission for it to reinstate the order of the single commissioner.

Acting  Justice James E. Moore, concurs.

[1] This Court has corrected the spelling of the employer’s name to “National Service Industries” (rather than “National Services Industries”) in the caption.

[2] “Logically, an employee cannot be expected and certainly cannot be required to institute a claim until he has reliable information that his condition is the result of his employment.”  Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 416 (Mo. Ct. App. 1988),overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003).  “Just as logically, given that there must be competent and substantial evidence of this link, the claimant is entitled to rely on a physician’s diagnosis of his condition rather than his own impressions.”  Id.

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.”