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.
394 S.C. 224 (2011)715 S.E.2d 339
Raquel MARTINEZ, Employee, Respondent,
v.
SPARTANBURG COUNTY and S.C. Association of Counties Self-Insurance Fund, Carrier, Appellants.
No. 4839.Court of Appeals of South Carolina.Submitted January 4, 2011.Decided June 15, 2011.Rehearing Denied October 6, 2011.Richard B. Kale, Jr., of Greenville, for 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).
Jan 21, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
This recent SC Court of Appeals case reaffirms that your attorney has to have a proper expert witness to prove your case. Otherwise, a critical error can effectively end your workers’ compensation case. 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
Claude Potter, Employee, Appellant,
v.
Spartanburg School District 7, Employer, and S.C. School Board Self-Insurance Trust Fund, Carrier, Respondents.
Opinion No. 4890.
Court of Appeals of South Carolina. Submitted June 1, 2011.Filed September 14, 2011.Andrew N. Poliakoff, of Spartanburg, for Appellant.Michael Allen Farry, of Greenville, for Respondents.KONDUROS, J.,:This is an appeal of a workers’ compensation case arising from Claude Potter’s compensable injuries, which originated from a slip and fall during his employment with Spartanburg SchoolDistrict 7 (School District). The Appellate Panel found that although Potter did suffer a psychological overlay from his injury, he did not sustain any permanent partial disability as a result of the psychological overlay, and the circuit court affirmed. Potter raises several issues on appeal, claiming the circuit court erred in affirming the following findings: (1) Potter did not suffer any “physical brain damage” causally related to the accident; (2) the only body part with resulting impairment from the accident is the right leg; (3) Potter has not suffered a psychological/mental injury; and (4) Potter has not suffered permanent and total disability. We affirm.FACTS
On December 19, 2003, Potter was performing maintenance on a heating ventilation and air conditioning (HVAC) system located on the roof of a building for the School District. While securing a ladder, Potter fell approximately twelve to fourteen feet landing on asphalt and losing consciousness for a few minutes. He fractured his right femur with “minimal displacement” and sustained a small cut above his eye. Potter’s right leg was surgically repaired and a few stitches were used to treat the cut above his eye. The computerized tomography (CT) scan of his head on the day of the fall showed a “small amount of supratentorial blood.” A second CT scan, taken a few days later, revealed no new problems and the previous swelling and pressure had subsided. The School District began payingPotter weekly temporary total disability benefits and provided medical care.
On November 23, 2004, Potter underwent a neurological consultation. The neurologist, Dr. Thomas A. Collings, found Potter’s reported problems with disequilibrium were probably not related to his fall, and the vertigo and mild head injury had resolved itself. His treating physician, Dr. Mark D. Visk, evaluated Potter on December 16, 2004, and assigned him a twenty percent permanent impairment to the right leg and discharged him from active care.Potter had an independent medical evaluation in May 2005. The evaluator provided no assessment of Potter’s mental status, but found he had a twenty-four percent whole person impairment related to his shoulder, leg, and lower back. In June 2005, Potter received a neuropsychological evaluation from Dr. Randolph Waid, a licensed clinical psychologist. Dr. Waid noted Potter’s injuries included “cognitive disorder residuals of traumatic brain injury with interfering effects of pain, sleep disturbance, and fatigue.” He recommended Potter receive psychiatric evaluation and treatment to manage Potter’s “sleep disturbance, mood labiality, as well as depression,” along with a course of psychological counseling to develop “affective compensatory strategies and antidepressants.” Potter’s attorney referred him to Dr. Collings for another evaluation in September 2005. After an examination and a review of previous medical reports, Dr. Collings opined: “I do not feel that Mr. Potter has any significant ongoing neurologic difficulty from the fall on 12/18/03.”
On January 6, 2006, Potter filed a Form 50 alleging he sustained compensable injuries to his “brain, shoulder, back, hip, leg, and head” when he fell from the ladder. By consent order, the parties agreed for Potter to be referred to Dr. David Tollison for psychological evaluation and treatment, which began on June 20, 2006, and continued until March 14, 2007. During the course of treatment, the School District filed a Form 21 requesting a hearing to determine the amount of compensation to be paid to Potter. Potter was released by Dr. Tollison in March 2007 at psychological maximum medical improvement and told to return if needed. On August 30, 2007, the School District denied Potter sustained any compensable permanent brain damage or that Potter was permanently and totally disabled.
The single commissioner held an evidentiary hearing on December 4, 2007, and filed an order on January 8, 2008, holding: (1) Potter sustained a compensable injury by accident to his right leg; (2) Potter reached maximum medical improvement with a thirty percent partial disability to the right leg; (3) Potter was not disabled from his job because of his injuries; and (4) he did not suffer any physical brain damage causally related to the admitted accident. Citing McLeod v. Piggly Wiggly Co., 280 S.C. 466, 471, 313 S.E.2d 38, 41 (Ct. App. 1984), the order noted that Dr. Waid is a clinical psychologist, not a neurosurgeon or a medical doctor, and his opinion “concerning alleged brain damage is beyond [h]is area of expertise.” Additionally, the order stated “greater weight is given to the opinion of the treating physician” with respect to Potter’s“injuries and body parts involved.”
Potter appealed, and a majority of the Appellate Panel affirmed the findings and conclusions of the single commissioner with some additional findings. The Appellate Panel further found that although Potter did suffer a psychological overlay from his injury, he did not sustain any permanent partial disability as a result of the psychological overlay. In his dissent, Commissioner J. Alan Bass disagreed with the findings that Dr. Waid was unqualified to render an opinion concerning brain damage and that Potter did not suffer any brain damage causally-related to the admitted accident. Potter appealed to the circuit court. The circuit court found substantial evidence in the record supported the specific findings of fact made by the Appellate Panel and the decision was not affected by an error of law; therefore, the circuit court affirmed the findings and conclusions of the Appellate Panel. This appeal followed.
STANDARD OF REVIEW
The South Carolina Administrative Procedures Act establishes the substantial evidence standard for judicial review of decisions by the Commission. S.C. Code Ann. § 1-23-380 (Supp. 2010); Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). Under the substantial evidence standard of review, this court may not “substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law.” Stone v. Traylor Bros., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004). “Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusions the administrative agency reached in order to justify its actions.” Brought v. S. of the Border, 336 S.C. 488, 495, 520 S.E.2d 634, 637 (Ct. App. 1999). In workers’ compensation cases, the Appellate Panel is the ultimate fact finder. Shealy v. Aiken Cnty, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000). The Appellate Panel is reserved the task of assessing the credibility of the witnesses and the weight to be accorded evidence. Id.
LAW/ANALYSIS
I. Physical Brain Damages Causally Related to the Accident
Potter argues the circuit court erred in affirming the Appellate Panel’s finding that he did not suffer any physical brain damage causally related to the accident, based on the Appellate Panel’s misinterpretation of McLeod v. Piggly Wiggly Co., and ignoring Tiller v. National Health Care Center, 334 S.C. 333, 513 S.E.2d 843 (1999). Potter suggests Tiller stands for the proposition that medical evidence is not required in workers’ compensation claims, even in medically complex cases, thus he is entitled to a determination of physical brain damage based on the medical testimony presented to the Appellate Panel. We disagree.
The Appellate Panel is given discretion to weigh and consider all the evidence, both lay and expert, when deciding whether causation has been established. Ballenger v. S. Worsted Corp., 209 S.C. 463, 467, 40 S.E.2d 681, 685 (1946); Tiller, 334 S.C. at 340, 513 S.E.2d at 846. Thus, while medical testimony is entitled to great respect, the fact finder may disregard it if other competent evidence is presented. Id. Expert medical testimony is intended to aid the Appellate Panel in coming to the correct conclusion. Corbin v. Kohler Co., 351 S.C. 613, 624, 571 S.E.2d 92, 98 (Ct. App. 2002) (citing Tiller, 334 S.C. at 340, 513 S.E.2d at 846). The final determination of witness credibility and the weight to be accorded evidence is reserved to the Appellate Panel. Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).
The Appellate Panel, as the ultimate fact finder, was within its discretion to rely on McLeod in determining the weight Dr. Waid’s opinion should be afforded. McLeod provides the Appellate Panel with the ability to ascertain the proficiency of an expert and to decide whether a “higher degree of expertise” is needed regarding an award. 280 S.C. at 471, 313 S.E.2d at 41 (holding the award should be remanded for redetermination when an alleged defect and injury sustained by the claimant concerned a complicated area of the body requiring a higher degree of expertise than provided to the Appellate Panel). In this case, Dr. Waid’s opinion, as a clinical psychologist, was reviewed and given a lesser weight due to the Appellate Panel’s evaluation of Waid’s opinion concerning alleged brain damage based on his expertise presented to the Appellate Panel.
The Appellate Panel’s reliance on McLeod does not disregard Tiller. Tiller allows Dr. Waid’s opinion to be taken into consideration by the Appellate Panel as it weighs and considers all the evidence, both lay and expert, when determining whether causation has been established. While medical testimony is entitled to great respect, the Appellate Panel may disregard it if the record contains other competent evidence. Id. Nor is the Appellate Panel bound by the opinion of medical experts. Sanders v. MeadWestvaco Corp., 371 S.C. 284, 292, 638 S.E.2d 66, 71 (Ct. App. 2006). In this case, the Appellate Panel was presented with medical evidence fromPotter’s emergency room physician, Potter’s primary physician, a neurologist, and a psychologist. The Appellate Panel committed no error of law by relying on McLeod in its assessment of Dr. Waid’s credibility and the weight to afford his opinion, as it made its factual findings regarding physical brain damage. Furthermore, “`it is not for this court to balance objective against subjective findings of medical witnesses, or to weigh the testimony of one witness against that of another.’ That function belongs to the Appellate Panel alone.” Id. (quoting Roper v. Kimbrell’s of Greenville, 231 S.C. 453, 461, 99 S.E.2d 52, 57 (1957)). We therefore affirm.
II. Remaining Issues
The remaining issues have been abandoned by Potter because he fails to cite any statute, rule, or legal authority for the three issues in his brief. An issue is deemed abandoned if the argument in the brief is not supported by authority or is only conclusory. See In the Matter of the Care & Treatment of McCracken, 346 S.C. 87, 92-3, 551 S.E.2d 235, 238-39 (2001)(finding issues were abandoned because there was no specific legal ground upon which the court could rely); see also Pack v. S.C. Dep’t of Transp., 381 S.C. 526, 532, 673 S.E.2d 461, 464 (Ct. App. 2009) (holding appellant abandoned issue when she cited no legal authority to support her argument). While Potter’s brief suggests other facts that could have been considered by the Appellate Panel, he gives this court no substantive legal authority upon which to rely. Accordingly, these issues are abandoned.
CONCLUSION
The decision of the circuit court affirming the Appellate Panel’s findings of fact and conclusions of law is
AFFIRMED.
SHORT and GEATHERS, JJ., concur.
Jan 21, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Workers' Compensation, Wrongful Death
This recent workers’ compensation case reaffirms that third party cases must be handled properly or remedies can be “elected” (i.e. lost). Accidents “on the job” can sometimes involve cases against “third parties.” Automobile accidents while at work or jobs where other employees from a different company cause injury are common such examples. In those cases, you should first finish treatment and resolve your workers’ compensation case. Then, and only then, you should explore a third party case. You can recover money for “pain and suffering” in the third party case, and there will be a lien on any recovery from the workers’ compensation insurance carrier. However, if handled properly, an experienced personal injury trial attorney can maximize your case’s value and ultimate recovery.
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
Stephen Brad Wise, Appellant,
v.
Richard Wise d/b/a Wise Services and the South Carolina Uninsured Employers Fund, Respondents.
Opinion No. 4879.Court of Appeals of South Carolina.Heard November 4, 2010.Filed August 24, 2011.Pope D. Johnson, of Columbia, for Appellant.
John G. Felder, of St. Matthews; Robert Merrell Cook, II, of Batesburg-Leesville, for Respondents.
KONDUROS, J.:
Stephen Brad Wise (Claimant) appeals the circuit court’s dismissal of his workers’ compensation claim that arose from the same facts as a civil action he settled against a third party and a default judgment he obtained against his employer. He maintains the circuit court could not take judicial notice of the existence of his civil action when evidence of that claim did not appear in the appellate record. We affirm.
FACTS/PROCEDURAL HISTORY
This workers’ compensation action arose out of an accident Claimant had on October 30, 2000, while working for Richard Wise d/b/a Wise Services (Employer).[1] Claimant was riding on top of a bank building that was being moved when he came into contact with a high voltage electrical line in Orangeburg, South Carolina and sustained severe burns as a result. On June 26, 2001, Claimant filed a Form 50 against Employer for medical and compensation benefits for his injuries. On July 13, 2001, Employer filed a Form 51, denying Claimant was an employee and asserting he was an independent contractor. Additionally, Employer contended it was not covered by the Workers’ Compensation Act (the Act) because it does not have the requisite number of employees. Employer also maintained if Claimant was an employee, he was a casual employee and thus exempt under section 42-1-360 of the South Carolina Code. The South Carolina Uninsured Employers’ Fund (the Fund) contended Claimant was not subject to the Act. It further asserted that if Claimant was a covered employee, his weekly wage should be figured at the minimum compensation of $75 per week because he failed to file a tax return for his wages from Employer.
On May 2, 2002, the single commissioner held a hearing on the matter. On October 18, 2002, five months after the single commissioner conducted the hearing but prior to its issuing the order, Claimant filed a tort action against Employer and the City of Orangeburg (the City). On November 26, 2003, the single commissioner issued an order denying the claim, finding Employer regularly employed only three employees and thus was exempt from the Act and not required to provide workers’ compensation insurance coverage. The single commissioner further found because Employer was exempt from coverage, the Fund had no responsibility to provide benefits to Claimant. Finally, the single commissioner found the Workers’ Compensation Commission had no jurisdiction over the claim and dismissed it.
On December 8, 2003, Claimant filed a Form 30 appealing the single commissioner’s order to the Appellate Panel. On January 4, 2004, Claimant obtained a default judgment in the amount of $900,000 in the tort action against Employer. Claimant and the City reached a settlement.
On June 22, 2004, the Fund filed a motion to dismiss the appeal or order new evidence taken before the single commissioner. The Fund contended Claimant had waived his right to appeal his claim by filing suit against Employer alleging his employment did not fall within the scope of the Act and prosecuting that action to a final judgment of $900,000. Additionally, the Fund maintained Claimant did not notify it or the Commission of his suit against the City as a third-party tortfeasor, which section 42-1-560(b) of the South Carolina Code requires, and as a result he elected his remedy and was barred from receiving any benefits under the Act. The Fund provided an affidavit, a copy of Claimant’s summons and complaint against Employer and the City, the default judgment against Employer, and the order from February 24, 2004, dismissing the action against the City with prejudice. The Appellate Panel dismissed the workers’ compensation action, finding (1) Claimant, Employer, or their attorneys did not notify the Commission or the Fund of the civil suit; (2) when Claimant filed his civil action on the same issues that were before the Commission, the matter was removed from the Commission’s jurisdiction, and the Claimant alleged his employment did not fall within the parameters of the Act; and (3) accordingly, the matter is res judicata.
Claimant appealed to the circuit court, which reversed the order to dismiss, finding Regulation 67-215(B)(1) of the South Carolina Code of Regulations prohibited the Appellate Panel from addressing a motion to dismiss. The circuit court remanded the action to the Full Commission for it to consider the Fund’s motion to submit new evidence. The Full Commission then remanded the matter to the Appellate Panel, which granted the motion to submit additional evidence and remanded the action to the single commissioner to consider the new evidence. Claimant appealed the Appellate Panel’s allowance of additional evidence to the circuit court, which reversed the Appellate Panel, finding the Appellate Panel’s order was too summary to allow a meaningful review. On remand, the Full Commission issued an order granting the Fund’s motion to submit additional evidence, finding the record contains no evidence contrary or similar to the new evidence; thus, the new evidence was not cumulative or impeaching. Accordingly, the Full Commission remanded the action to the single commissioner to determine whether Claimant had elected his remedy.
Claimant again appealed to the circuit court, asserting the evidence did not fit the meaning of newly discovered evidence under Regulation 67-707 of the South Carolina Code. The circuit court reversed, finding the evidence did not constitute newly discovered evidence under Regulation 67-707. The circuit court stated: “The evidence of facts sought to be admitted did not exist at the time of the hearing before the [s]ingle [c]ommissioner. . . . [T]he evidence sought to be admitted does not constitute after discovered evidence within the meaning of Regulation 67-707.” (quoting State v. Haulcomb, 260 S.C. 260, 270, 195 S.E.2d 601, 606 (1973) (“[A]fter discovered evidence refers to facts existing at time of trial of which . . . [the] aggrieved party was excusably ignorant.”)). On remand, the Appellate Panel denied the Fund’s motion to admit additional evidence pursuant to Regulation 67-707 and ordered Claimant’s appeal as to whether Employer was subject to the Act be set for a hearing. Following the hearing, the Appellate Panel reversed the single commissioner, finding Employer had four employees in his employment, and thus, it was subject to the Act. The Fund appealed to the circuit court, which reversed the Appellate Panel, finding the action was “barred by the election of remedies of the [C]laimant by instituting and settling his tort claims without notice to and the consent of the [E]mployer and the [Fund].” The circuit court also found in the alternative, “pursuant to the election of jurisdiction provision of [s]ection 42-5-40 the Commission was divested of jurisdiction over this claim and its order is vacated.”[2] 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. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). 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 when the decision is affected by an error of law. Stone v. Traylor Bros., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004).
The substantial evidence rule governs the standard of review in workers’ compensation decisions. Frame v. Resort Servs. Inc., 357 S.C. 520, 527, 593 S.E.2d 491, 494 (Ct. App. 2004). The Appellate Panel’s decision must be affirmed if supported by substantial evidence in the record. Shuler v. Gregory Elec., 366 S.C. 435, 440, 622 S.E.2d 569, 571 (Ct. App. 2005). An appellate court can reverse or modify the Appellate Panel’s decision only if 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.” Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct. App. 2005) (citations and internal quotation marks omitted).
LAW/ANALYSIS
Claimant argues the circuit court erred in considering the documents relating to the civil action because they were not part of the record. He further contends the circuit court erred in taking judicial notice of the civil action because the Fund never requested the Appellate Panel take notice of it or raise it as a ground on appeal. We disagree.
I. Election of Remedies/Third-Party Action
When an employee’s claim arises out of and in the course of his or her employment, the Act provides the exclusive remedy. See Sabb v. S.C. State Univ., 350 S.C. 416, 422, 567 S.E.2d 231, 234 (2002). “Every employer and employee . . . shall be presumed to have accepted the provisions of this title respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment and shall be bound thereby.” S.C. Code Ann. § 42-1-310 (Supp. 2010).
“When an employee and his or her employer accept the provisions of the Act, the employee’s remedies under the Act exclude all other rights and remedies of the employee.” Harrell v. Pineland Plantation, Ltd., 337 S.C. 313, 325-26, 523 S.E.2d 766, 772 (1999) (citing S.C. Code Ann. § 42-1-540 (1985)).
THIS SECTION IS KNOWN AS THE EXCLUSIVE REMEDY PROVISION, AND IT shrouds an employer with immunity from any actions at law instituted by the employee. Such immunity is part of the broader quid pro quo arrangement imposed upon the employer and employee by the Act. The employee” receives the right to swift and sure compensation” in exchange for giving up the right to sue in tort; the employer receives such tort immunity in exchange for complying with those provisions of the Act that insure swift and sure compensation for the employee.
Id. at 326, 523 S.E.2d at 772. “The Act achieves such’ swift and sure compensation’ by requiring the employer to secure the payment of compensation under [section 42-5-10 of the South Carolina Code (1985)].” Id. at 326, 523 S.E.2d at 773. Section 42-5-10 provides: “Every employer who accepts the compensation provisions of this Title shall secure the payment of compensation to his employees in the manner provided in this chapter.” An employer that fails to secure such compensation becomes liable either under the Act or in an action at law.Harrell, 337 S.C. at 327, 523 S.E.2d at 773 (citing S.C. Code Ann. § 42-5-40 (1985)). “[T]he Act prohibits an employee from recovering both workers’ compensation and a tort judgment from an employer who fails to secure compensation.” Id. at 329, 523 S.E.2d at 774.
A claimant has three remedies for job-related injuries:
(1) To proceed solely against the employer thereby allowing the employer-carrier the opportunity to pursue reimbursement against the third party for its obligated payments.
(2) To proceed solely against the third party tort feasor under [section] 42-1-550 by instituting and prosecuting an action at law; and
(3) To proceed against both the employer-carrier and the third party tort feasor by complying with [section] 42-1-560.
Callahan v. Beaufort County Sch. Dist., 375 S.C. 92, 95-96, 651 S.E.2d 311, 313 (2007).
Section 42-1-560 of the South Carolina Code (1985) provides the requirements for simultaneously pursuing a third-party action and a workers’ compensation claim. It states: “Notice of the commencement of the [third-party] action shall be given within thirty days thereafter to the . . . Commission, the employer[,] and carrier upon a form prescribed by the . . . Commission.” § 42-1-560(b). The statute clearly requires timely notice be given to all three entities: employer, carrier, and Commission. Callahan, 375 S.C. at 96, 651 S.E.2d at 314. “The object of [section] 42-1-560 is to effect an equitable adjustment of the rights of all the parties. It would defeat this objective to allow the employee to demand compensation from the employer after having destroyed the employer’s normal right to obtain reimbursement from the third party.” Fisher v. S.C. Dep’t. of Mental Retardation-Coastal Ctr., 277 S.C. 573, 575-76, 291 S.E.2d 200, 201 (1982) (citation and internal quotation marks omitted). “[T]he settlement of a third party claim without notice to the employer and carrier bars a workers’ compensation action.” Kimmer v. Murata of Am., Inc., 372 S.C. 39, 52, 640 S.E.2d 507, 513-14 (Ct. App. 2006). In Fisher, the supreme court held that a claimant had elected a remedy, thus forgoing workers’ compensation benefits, by settling a third-party claim without complying with the notice requirements of section 42-1-560, even though the carrier had actual knowledge of the third-party suit. Id.
This court has previously explained the reasoning behind a settlement serving as a bar to a workers’ compensation action:
As a result of the failure to notify of a third party claim, the employer-carrier loses a voice in the litigation and is clearly prejudiced. That voice encompasses the right to select one’s own counsel, conduct one’s own investigation, and direct the litigation. Notice makes it possible for the employer-carrier to offer the employee meaningful assistance in prosecuting the third party claim. With timely knowledge the employer-carrier gains the opportunity to lend support to an effort that could lead to the carrier’s recovery of some or all of the compensation it might later be required to pay the injured employee under the Workers’ Compensation Act. The statute’s underlying purpose serves to protect the carrier’s subrogation interests and prevents an employee’s double recovery.
Kimmer, 372 S.C. at 51, 640 S.E.2d at 513 (citations omitted).
Case law makes clear that an employee cannot recover against an employer under both a workers’ compensation action and a civil action. Here, Claimant recovered $900,000 from Employer in the form of a default judgment. Further, because Claimant did not strictly comply with the notice provisions in filing suit against a third party, he is barred from recovering under the Act. However, we must determine if the evidence of the civil suit could be admitted as new evidence or the circuit court could take judicial notice of it.
II. Judicial Notice
“Notice may be taken of judicially cognizable facts” in administrative cases. S.C. Code Ann. § 1-23-330(4) (2005).
Appellate courts are generally reluctant to notice adjudicative facts even when those facts may be absolutely reliable. Notice of “facts” for the first time on appeal may deny the adverse party the opportunity to contest the matters noticed; it may also violate the general principle that appellate review should be limited to the record. Finally, appellate courts, limited to the “cold” record, cannot be as sensitive to the appropriateness of judicial notice as the trial judge. For the foregoing reasons we hold that original judicial notice of adjudicative facts at the appellate level should be limited to matters which are indisputable.
Masters v. Rodgers Dev., 283 S.C. 251, 256, 321 S.E.2d 194, 197 (Ct. App. 1984) (citations omitted). “A court can take judicial notice of its own records, files[,] and proceedings for all proper purposes including facts established in its records.” Freeman v. McBee, 280 S.C. 490, 313 S.E.2d 325 (Ct. App. 1984). “It is not error for a judge to take judicial notice of what was stated in [a] former opinion in [a] prior action of the same case.” Id.
Claimant’s argument as to judicial notice revolves around the fact that the Fund did not request the Appellate Panel take judicial notice of the suit or raise judicial notice in its grounds on appeal to the circuit court. As Claimant’s own case law states, an appellate court can take judicial notice of something that was not before the trial court if it is indisputable. The summons and complaint and default judgment show that Claimant did file an action and recover against Employer thus making that his exclusive remedy. Additionally, he filed suit and entered a settlement against a third party without providing any notice to the Fund or the Commission as required by statute, thus barring the workers’ compensation action.
III. Additional Evidence
Additionally, the evidence of the civil claim could be admitted as new evidence under Regulation 67-707 of the South Carolina Code of Regulations (Supp. 2010), which provides the requirements for the admission of additional evidence in workers’ compensation cases. Regulation 67-707 states:
A. When additional evidence is necessary for the completion of the record in a case on review the Commission may, in its discretion, order such evidence taken before a Commissioner.
B. When a party seeks to introduce new evidence into the record on a case on review, the party shall file a motion and affidavit with the Commission’s Judicial Department.
C. The moving party must establish the new evidence is of the same nature and character required for granting a new trial and show:
(1) The evidence sought to be introduced is not evidence of a cumulative or impeaching character but would likely have produced a different result had the evidence been procurable at the first hearing; and
(2) The evidence was not known to the moving party at the time of the first hearing, by reasonable diligence the new evidence could not have been secured, and the discovery of the new evidence is being brought to the attention of the Commission immediately upon its discovery.
Claimant argues because the circuit court originally found it was not newly discovered evidence and the Fund did not appeal, it was the law of the case. However, an appeal of that ruling would have been interlocutory. See Leviner v. Sonoco Prods. Co., 339 S.C. 492, 494, 530 S.E.2d 127, 128 (2000) (holding an order by the circuit court remanding the matter to the single commissioner for further proceedings was not directly appealable). Therefore, the circuit court’s original decision to not allow the evidence as newly discovered was not the law of the case.
The evidence of the civil claim meets the criteria in the Regulation for the admission of new evidence: (1) it is not cumulative or impeaching character and would have produced a different result if produced at the first hearing and (2) was not known and could not have been discovered at the time of the first hearing and was brought to the attention of the Commission immediately upon its discovery. Nothing requires that the facts be in existence at the time of the first hearing by the single commissioner.[3] Accordingly, the circuit court’s decision is
AFFIRMED.
HUFF and LOCKEMY, JJ., concur.
[1] We note at the outset the procedural history of this case is difficult to follow.
[2] The circuit court stated it had erred in its prior determination that the evidence of the existence of Claimant’s tort action, default judgment, and settlement could not be admitted under Regulation 67-707.
[3] Claimant also argues the circuit court erred in failing to affirm the Appellate Panel’s finding that Employer had four employees and thus was subject to the Act. We need not address this issue. 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 a prior issue is dispositive of the appeal).
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.)
The South Carolina Workers’ Compensation Commission’s Mediation Committee has finished its work, and the wheels are in motion to adopt regulations to govern mediations in workers’ compensation. Led by a determined Commissioner Derrick Williams, the Committee only needed to meet twice to hammer out regulations and forms consistent with the committee’s vision of a mediation system that will work in South Carolina. Here’s what came out of the Committee’s efforts:
Regulation 67-1801. Mediation.
It provides:
1 Commissioners have the discretion to order mediation and to name the mediator. The Commissioner must retain jurisdiction of the case until the issues are resolved.
2. Mediation is mandatory prior to a hearing for claims arising under §42-9-10, §42-9-30(21), occupational disease cases, third-party reduction claims, contested death claims, mental/mental injury claims, and cases of concurrent jurisdiction under the South Carolina Workers’ Compensation Act and the Federal Longshore and Harbor Workers’ Compensation Act. Claims involving multiple workers arising out of employment with the same employer also must be mediated prior to hearing.
3. The parties may mutually select the mediator.
4. The parties must select a mediator within 10 days of the filing of a Form 51 or a response to a Form 21, and the mediation must be completed within 60 days.
5. Representatives may attend the mediation by telephone.
6. Rules of confidentiality, decorum, and good faith are the same as in mediations generally.
Modifications to existing forms.
1 Form 50.
The Form 50 will be modified to add Paragraph 15 in which the claimant can request mediation, reject mediation or indicate whether the case is one that requires mediation.
2. Form 51 and Form 21.
The Form 51 and Form 21 will similarly be modified to add Paragraph 13 and Paragraph VI, respectively, in which the defense will indicate whether it wants mediation, rejects mediation or mediation is required.
3 Form 70.
The Form 70 will be created for the mediator to report the outcome of the mediation to the Commission. Was the case resolved? If so, what result? If not, why not? Is a hearing requested? The Form 70 will not become part of the Commission’s file.
Commissioner Williams is presenting the regulation and forms at the Commission’s January business meeting. If approved, the new regulation will go through the process of publication in the State Register, public hearings and submission to the legislature. We will keep you posted on new developments as they happen. It is very likely mediation will become an integral part of the workers’ compensation process this year. -Stan Lacy
This is a welcomed evolution in workers’ compensation. Mediation has become commonplace in civil litigation cases and has been instrumental in resolving complex cases. Both parties, injured workers and insurance carriers, will benefit from this coming change. It also reinforces the need for claimants to retain experienced workers’ compensation attorneys who can effectively present their cases at mediation and obtain the best possible outcome.
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.
Jan 13, 2012 | Car Accidents, Personal Injury, Uncategorized, Workers' Compensation
The following case reaffirms that hiring an experienced workers’ compensation attorney really can make all the difference. In this matter, the attorney was just two (2) days late filing a notice of appeal. Even though the Commission made an exception to allow the appeal, the SC Supreme Court held that the Commission did not have proper jurisdiction once the deadline had passed. The case was ended. Nothing further could be done. The claimant lost because her lawyer was just 2 days late. Experience counts, especially in law.
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 injuries, including neck, back, shoulder, knee accidents, closed head / brain injury, herniated disks, bulging disks, diskectomy surgery, fusion procedures, arthroscopy, chemical and fire burns, 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 Supreme Court
Betty Ann Allison, as Personal Representative of the Estate of Benjamin Allison, Respondent,
v.
W. L. Gore & Associates, Appellant.
Appeal from Beaufort County Marvin Dukes, Master-in-Equity
Opinion No. 27031
Heard June 9, 2011 – Filed August 22, 2011
VACATED
Carmelo B. Sammataro, of Turner, Padget, Graham & Laney, of Columbia, and O. Shayne Williams, of Turner, Padget, Graham & Laney of Greenville, for Appellant.
Marion Clyde Fairey, Jr., of Hampton, for Respondent.
JUSTICE PLEICONES: This is a direct appeal in a workers’ compensation case from a master’s order reversing the Full Commission and finding respondent’s decedent is totally disabled as the result of an occupational disease. On appeal, appellant (Employer) contends this matter should have been dismissed because respondent’s admittedly untimely appeal to the Commission deprived the Commission of jurisdiction. We agree that the untimely appeal to the Commission requires that we vacate both the master’s order and the decision of the Full Commission.
ISSUE
Did respondent’s failure to file a Form 30 with the Commission within fourteen days of receiving notice of the single commissioner’s order deprive that body of appellate jurisdiction?
ANALYSIS
South Carolina Code Ann. § 42-17-50 (Supp. 2010) provides for an appeal to the Commission from the decision of a single commissioner if the “application for review is made to the Commission within fourteen days from the date when notice of the award shall have been given. . . .” 25A S.C. Reg. 67-701 (Supp. 2010) provides that such review shall be done by a Form 30, and that “the fourteen day period is jurisdictional.” Reg. 67-701 A. Here, respondent did not file his Form 30 within fourteen days of receiving notice of the single commissioner’s order, and Employer moved before the Commission to dismiss the appeal arguing the Commission lacked subject matter jurisdiction. The Commission denied the motion, emphasizing the appeal was only two days late and that it resulted from respondent’s attorney’s error. The Commission upheld the single commissioner’s denial of benefits.
Employer took no immediate appeal from the interlocutory order denying its motion to dismiss, but raised the denial in respondent’s appeal to the circuit court. The master determined that by Employer’s failure to take an immediate appeal, the ruling that the Commission had “subject matter” jurisdiction over respondent’s appeal was rendered the law of the case. This was error.
Employer argues, and we agree, that it could not immediately appeal the order denying the motion to dismiss. Pursuant to S.C. Code Ann. § 42-17-60 (1990), an appeal from the Commission may be taken to circuit court “under the same terms and conditions as govern appeals in ordinary civil actions.” This statutory language has been interpreted to allow an immediate appeal from an interlocutory order of the Commission only where the order “affects the merits.” Chastain v. Spartan Mills, 228 S.C. 61, 88 S.E.2d 836 (1955); see also King v. Singer Co. Power Tool Div., 276 S.C. 419, 279 S.E.2d 367 (1981); Brunson v. Am. Koyo Bearings, 367 S.C. 161, 623 S.E.2d 870 (Ct. App. 2005). A circuit court order denying a motion to dismiss for lack of subject matter jurisdiction is not directly appealable because, among other things, it does not affect the merits. Woodward v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995) overruled in part on other grounds Sabb v. South Carolina State Univ., 350 S.C. 416, 567 S.E.2d 231 (2002). The master erred in holding that the Commission’s denial of Employer’s motion to dismiss was immediately appealable.
The master also held that the Commission had “subject matter” jurisdiction to hear respondent’s appeal despite the untimeliness of the Form 30. We now clarify that this issue is properly couched as one of appellate jurisdiction rather than subject matter jurisdiction. See Great Games, Inc. v. S.C. Dep’t of Rev., 339 S.C. 79, 529 S.E.2d 6 (2000). A court’s subject matter jurisdiction is determined by whether it has the authority to hear the type of case in question. E.g., Dove v. Gold Kist, Inc., 314 S.C. 235, 442 S.E.2d 598 (1994). This same principle applies to administrative agencies. The Commission has the authority to review decisions of a single commissioner, and under the Gold Kist standard, there is no subject matter jurisdiction issue here. We now clarify that the question of compliance with rules, regulations, and statutes governing an appeal is one of appellate jurisdiction, see In re November 8, 2008 Bluffton County Election, 385 S.C. 632, 686 S.E.2d 685 (2009), and overrule prior decisions to the extent they pose the question of an executive agency’s authority to hear an appeal as one of subject matter jurisdiction. E.g., Bursey v. S.C. Dep’t of Health and Envtl. Control, 369 S.C. 176, 631 S.E.2d 899 (2006); S.C. Dep’t of Corrections v. Tomlin, 387 S.C. 652, 694 S.E.2d 25 (Ct. App. 2010); Hamilton v. Bob Bennett Ford, 336 S.C. 72, 518 S.E.2d 599 (Ct. App. 1999) modified on other grounds 339 S.C. 68, 528 S.E.2d 667 (2000).
On the merits, we hold that the Commission lacks the authority to extend the fourteen days permitted for the filing of an appeal from the decision of a single commissioner. See Goodman v. City of Columbia, 318 S.C. 488, 458 S.E.2d 531 (1995) (construing a pro se letter sent within fourteen days as satisfying the notice requirements of § 42-17-50 and Reg. 67-701). This holding is consistent with the general rule that an appellate body may not extend the time to appeal. E.g., Rule 263(b), SCACR; S.C. Code Ann. § 1-23-380(A)(1) (Supp. 2010); S.C. Coastal Conservation League v. S.C. Dep’t of Health and Envtl. Control, 380 S.C. 349, 669 S.E.2d 849 (Ct. App. 2008) overruled on other grounds 390 S.C. 418, 702 S.E.2d 246 (2010); Sadisco of Greenville, Inc. v. Greenville County Bd. of Zoning Appeals, 340 S.C. 57, 530 S.E.2d 383 (2000).
CONCLUSION
Since the Full Commission lacked jurisdiction to hear respondent’s appeal, the decision of that Commission as well as the master’s order are VACATED.
TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.
