SC Workers’ Compensation – Medical Treatment – Fee Payment Schedule

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

This recent SC Supreme Court case discusses the legislative authority given to the Workers’ Compensation Commission to set and regulate medical payment fee schedules. As we all know, it is always about the money. Because fees in workers’ compensation cases are capped, many medical providers are now reconsidering whether they will treat non-emergency workers’ compensation injuries. Additionally, individual physicians are similarly re-evaluating whether they want to get involved in these cases either. Besides lower fees, physicians also may have to write opinion letters to requesting attorneys and even be available for depositions. From a workers’ compensation attorney’s perspective, we are finding fewer doctors willing to give “second opinions” and, when necessary to proving a case, deposition costs continue to rise significantly. Better make sure your attorney understands exactly which elements have to be proven and can save you unnecessary costs in your case.

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

THE STATE OF SOUTH CAROLINA
In The Supreme Court

South Carolina Ambulatory Surgery Center Association; Ambulatory Surgery Center of Spartanburg, LLC; Blue Ridge Surgery Center; Low Country Orthopedics & Sports Medicine, LLC; Lowcountry Surgery Center, LLC; Midland Orthopaedics Surgery Center, LLC; Moore Orthopaedic Clinic Outpatient Surgery Center, LLC; Surgery Center at Pelham, LLC; Ocean Ambulatory Surgery Center; Upstate Surgery Center, L.L.C., Respondents/Appellants,

v.

The South Carolina Workers’ Compensation Commission, Appellant/Respondent.

Appeal From Richland County
John M. Milling, Circuit Court Judge

Opinion No.  26875
Heard February 16, 2010 – Filed September 7, 2010

AFFIRMED IN PART AND REVERSED IN PART

William H. Davidson, II and Kenneth P. Woodington, Davidson & Lindemann, of Columbia, for Appellant-Respondent.

Steven W. Hamm and C. Jo Anne Wessinger Hill, of Richardson, Plowden & Robinson, of Columbia, for Respondents-Appellants.

JUSTICE BEATTY:  In this cross-appeal, we consider the central question of whether the South Carolina Workers’ Compensation Commission (“the Commission”) was required to promulgate a new regulation in order to change the fee payment schedule for ambulatory care centers.  Because we find the Commission’s actions were specifically authorized by an extant regulation and did not implicate the requisite private right to warrant due process protections, we reverse the portion of the circuit court’s order finding that a new regulation was necessary to effectuate the Commission’s change to the fee payment schedule.  Accordingly, we affirm in part and reverse in part.

I.  FACTUAL/PROCEDURAL BACKGROUND

In this action, several ambulatory surgery centers and their trade association (collectively “Surgery Centers”) challenged the revised schedule for maximum allowable payments to outpatient medical providers approved by the Commission.

Under the South Carolina Workers’ Compensation Act, the medical fees charged claimants by physicians and hospitals are subject to the submission and approval by the Commission.  S.C. Code Ann. § 42-15-90 (1985).[1]  The purpose of fee payment schedules is for medical cost containment[2] as most employers are required to carry workers’ compensation insurance.  Id.  Medical care providers voluntarily treat workers’ compensation patients, but are not required to do so.  Although the Commission is authorized by statute to conduct a hearing to review each bill that is submitted, it has instead published schedules listing the maximum allowable payment. If the amount to be paid is under the cap, the Commission does not conduct a review.  Id. 

The Commission currently publishes three schedules of maximum allowable payments:  (1) Payments for Physicians’ Services, known as the Medical Services Provider Manual, first published in 1953; (2) Payments for Inpatient Hospital Services, first published in 1984; and (3) Payments for Outpatient Services, including those services provided by Surgery Centers, first published in 1997.

In 1997, the Commission also revised its regulations to reflect certain changes to the way the maximum allowable payment schedules would operate.  Regulation 67-1304, the regulation for hospital outpatient services and ambulatory surgical centers, states:

A.  The Commission shall develop a prospective payment system for outpatient hospital services and services rendered by ambulatory surgical centers.

B.  Until such time as the prospective payment system is operational the payments for hospital outpatient services and ambulatory surgical centers shall be set by the Commission based on a discount to the provider’s usual and customary charge.

25A S.C. Code Ann. Regs.  67-1304 (Supp. 2009) (emphasis added).

The Commission set the interim discount amount at 12.1 percent during a Commission business meeting in 1997, rather than by regulation.  As a result, all outpatient bills would be discounted 12.1 percent and payment would be made at an amount no higher than 87.9 percent of the charged amount.

In November 2004, the Commission convened its Hospital Advisory Committee (Advisory Committee) to discuss, among other things, the establishment of a new schedule of maximum allowable payments for hospital outpatient services and ambulatory surgical centers pursuant to Regulation 67-1304(A), to replace the interim discount amount adopted in 1997.  The Advisory Committee met six times over an eighteen-month period.  An additional subcommittee was formed and met twice more to fully collect and analyze data related to the schedule.[3]

On June 19, 2006, the Advisory Committee issued its report, recommending revisions to the existing schedules for payments.  The Advisory Committee recommended the maximum allowable payments be no more than 140 percent of the applicable Medicare payment, i.e., the cap would be equal to what Medicare would pay out, plus 40 percent.  Subsequently, in the course of a Full Commission business meeting, the Commission adopted the Advisory Committee’s recommended schedules with an effective start date of October 1, 2006.

On September 29, 2006, Surgery Centers filed this action challenging the Commission’s revised schedule for maximum allowable medical payments under the Administrative Procedures Act (APA)[4] and on due process grounds.  In conjunction, Surgery Centers filed a motion to restrain and enjoin the Commission pendente lite from instituting the revised schedule.  Following a hearing, a circuit court judge granted Surgery Centers’ motion for a preliminary injunction; thus, the Commission was ordered to maintain the pre-existing payment schedule pending a determination of the merits of Surgery Centers’ original suit.

The Commission appealed and filed a petition for supersedeas with the Court of Appeals to stay the pendente lite injunction.  A single judge denied this petition.  The Commission then sought full panel review of the denial of its request for supersedeas.  After the single judge’s decision was affirmed by the full panel, the Commission withdrew its appeal of the circuit court’s enjoinment of the new payment schedule.  In turn, the Court of Appeals dismissed the appeal.

Subsequently, both parties filed motions for summary judgment.  At the hearing on these motions, the parties agreed the underlying facts were not in dispute and the matter presented solely a question of law to be decided by the circuit court.

In prefacing its order, the circuit court stated the “[t]he question before the Court is whether or not the Commission followed the proper procedures established by the laws of the State of South Carolina or complied with the due process clause of the South Carolina Constitution.”  In answering this question, the circuit court granted each party’s motion for summary judgment in part and denied it in part.

Specifically, the court held section 1-23-310(3) of the South Carolina Code, defining a “contested case” that requires a hearing, was inapplicable for several reasons.[5]  First, the court noted that the APA “does not itself create the right to a hearing, but instead only provides for procedures to be followed when some other provision of law creates a right to a hearing.”  Because Surgery Centers had no right required by law, the court concluded the APA did not mandate that Surgery Centers be afforded a hearing prior to the Commission’s adoption of the revised payment schedule.  Secondly, given the Commission’s actions did not involve “rate making,” the court concluded there was no “contested case” as that term is used under the APA.

Despite this holding, the court found the Commission was required to promulgate a new regulation that would be subject to the review and approval of the General Assembly.  In reaching this conclusion, the court reasoned “the Constitution provides some requirement of notice and an opportunity to be heard in this matter, and that the Commission must adopt a regulation in accordance with the APA.”  Thus, the court found “[s]uch regulation will provide the type of due process rights required by law and to which [Surgery Centers] are entitled.”  Furthermore, the court concluded that “a specific regulation was required in order to implement changes to R. 67-1304.”  The court explained that “[s]uch regulation would contain a defined procedure whereby the methodology for these payments would be established as has been done in Regulations 67-1302 and 1303.”

The court, however, concluded that Surgery Centers “do not have any ‘property’ interest or rights in the payment schedule established by the Commission and are not entitled to any due process rights on those grounds.”  In so ruling, the court rejected Surgery Centers’ contention that a property right was established by the mere fact the revised payment schedule could potentially reduce its earnings by 4.4 million dollars.  Notwithstanding this ruling, the court found Surgery Centers would be “afforded appropriate due process protections by the adoption of a proper regulation relating to the change of the payment schedule affecting [Surgery Centers].”

Following the issuance of this order, both parties filed motions for reconsideration pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure.  With the exception of the correction of a scrivener’s error, the court denied each party’s motion in full.

Both parties appealed the circuit court’s order to the Court of Appeals.  Upon request of the parties, this Court certified the appeal from the Court of Appeals pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.

II.  DISCUSSION

A.

Although Surgery Centers articulate several issues, they essentially argue the circuit court erred in concluding that they were not entitled to due process protections concerning the implementation of the Commission’s revised payment schedule.  Specifically, Surgery Centers claim the Commission’s actions constituted a “contested case” under the APA, thus, warranting the APA hearing procedures.  Additionally, Surgery Centers assert they have a substantive property interest in the payment schedule process and that, in turn, Article I, Section 22 of the South Carolina Constitution required the Commission to give notice and provide an opportunity to be heard before adopting the Advisory Committee’s recommended schedules.

In contrast, the Commission contends the circuit court erred in holding Surgery Centers had a due process right to have any revision of the payment schedules promulgated in a regulation, while at the same time holding Surgery Centers had no property interest in the payment schedule established by the Commission.

For reasons that will be more thoroughly explained, we agree with the circuit court’s findings that Surgery Centers did not establish a right to a “contested case” hearing under the APA and did not have the requisite property interest to invoke our state’s constitutional due process protections. We disagree, however, with the circuit court’s fundamental holding that the Commission was required to promulgate a new regulation in order to change the fee payment schedule.

B.

Initially, we believe the circuit court correctly held Surgery Centers did not establish the necessary independent right to a “contested case” under section 1-23-310(3) of the APA.

Significantly, Surgery Centers failed to set forth any specific argument establishing that the Commission’s actions fell within the ambit of criteria required for a “contested case.”  Although they reference the term in their brief, Surgery Centers do not identify the necessary South Carolina or Federal law that would warrant their entitlement to a “contested case” hearing.  See Triska v. Dep’t of Health & Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987) (recognizing that a “contested case” does not exist where there is no requirement deriving from South Carolina or Federal law that there be an opportunity for a hearing).

Furthermore, we do not believe nor do Surgery Centers expressly argue that the Commission’s actions involved “ratemaking” or “price fixing” as required by section 1-23-310(3), which defines a “contested case” as “a proceeding including, but not restricted to, ratemaking, price fixing.”  S.C. Code Ann. § 1-23-310(3) (2005).  As the circuit court correctly noted, the “Commission does not determine how much a regulated utility must charge to its customers, or conversely, how much the utility’s customers must pay.”  Moreover, unlike in public utility or regulated industry cases, there is no such statute in the instant case that clearly creates a requirement for a hearing.  Cf. S.C. Code Ann. § 58-27-870(A) (Supp. 2009) (providing that Public Service Commission “must hold a public hearing concerning the lawfulness or reasonableness of the proposed changes” in electric rates); S.C. Code Ann. § 58-9-540(A) (Supp. 2009) (stating Public Service Commission “shall . . . hold a hearing concerning the lawfulness or reasonableness of the [telephone utility] rate or rates”).

Our conclusion, however, is not dispositive of this appeal.  Instead, we must still consider whether Surgery Centers, apart from the “contested case” provision of the APA, were entitled to notice and an opportunity to be heard.

C.

Unlike the circuit court, we do not believe the Commission was required to promulgate a new regulation and provide Surgery Centers an opportunity to be heard before adopting the Advisory Committee’s recommended schedules.  Rather, we find the Commission’s actions were specifically authorized by existing Regulation 67-1304 and did not implicate the requisite private right to warrant the due process protections of Article I, Section 22 of the South Carolina Constitution.

In reaching this conclusion we must examine Regulation 67-1304 by utilizing the well-established rules of statutory construction.  “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the legislature.”  Hodges v. Rainey, 341 S.C. 79, 85, 533 S.E.2d 578, 581 (2000).  If a statute’s language is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for employing rules of statutory interpretation and the Court has no right to look for or impose another meaning. Miller v. Doe, 312 S.C. 444, 447, 441 S.E.2d 319, 321 (1994).

As a threshold matter, we note that Surgery Centers have never asserted that Regulation 67-1304 was promulgated in violation of their due process rights.  Thus, this extant regulation is controlling as to the authority allocated to the Commission.

Based on our review of this regulation, the plain and unambiguous terms authorize the Commission to establish a fee payment system applicable to Surgery Centers.  Significantly, subsection A of the regulation, states “The Commission shall develop a prospective payment system.” 25A S.C. Code Ann. Regs. 67-1304 (Supp. 2009) (emphasis added).  This legislatively-endorsed mandate permits the Commission to act without the need for additional approval.

Furthermore, we find the circuit court’s reliance on section 1-23-110 of the South Carolina Code to be misplaced.  In its order, the circuit court concluded that section 1-23-110 “establishes a requirement for a public hearing for proposed regulations.”  Based on this conclusion, the circuit court determined that “a specific regulation was required in order to implement changes to R. 67-1304.”

We do not interpret section 1-23-110 as being the source for which Surgery Centers have a right to have a regulation promulgated.  Rather, the statute merely provides for the procedures that must be followed whenever a regulation is otherwise mandated.  Based on our reading of the statute, we discern nothing that establishes when a regulation is required for changes to the Commission’s fee payment schedule for ambulatory surgery centers.[6]

Finally, we hold the protections provided by our state Constitution are inapplicable in the instant case.  Under our state Constitution, due process in the administrative context has been established by Article I, Section 22.[7]  This section provides:

No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard; nor shall he be subject to the same person for both prosecution and adjudication; nor shall he be deprived of liberty or property unless by a mode of procedure prescribed by the General Assembly, and he shall have in all such instances the right to judicial review.

S.C. Const. art. I, § 22 (emphasis added).

In explaining this provision, we have stated, “[i]n recognition of the increasing number of governmental powers delegated to administrative agencies, South Carolina Constitution article I, § 22 was added to the 1895 Constitution in 1970 ‘as a safeguard for the protection of liberty and property of citizens.'”  Ross v. Med. Univ. of S.C., 328 S.C. 51, 68, 492 S.E.2d 62, 71 (1997) (quotingFinal Report of the Committee to Make a Study of the South Carolina Constitution of 1895, p. 21 (1969)).

Although our appellate courts have not always used the term “due process rights” when discussing Article I, Section 22, we have consistently indicated that the protections provided under this section are the equivalent of those afforded by the Due Process Clause of our state and federal Constitutions.  See, e.g., Kurschner v. City of Camden Planning Comm’n, 376 S.C. 165, 171, 656 S.E.2d 346, 350 (2008) (citing Article I, Section 22 and stating “[p]rocedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment of the United States Constitution.  The fundamental requirements of due process include notice, an opportunity to be heard in a meaningful way, and judicial review.” (citation omitted));Harbit v. City of Charleston, 382 S.C. 383, 393, 675 S.E.2d 776, 781 (Ct. App. 2009) (citing Amendments V and XIV of the United States Constitution and Article I, Section 22 of the South Carolina Constitution and stating “[t]he fundamental requirements of due process under the United States Constitution and the South Carolina Constitution include notice, an opportunity to be heard in a meaningful way, and judicial review”).

Given the absence of distinction in our jurisprudence, we conclude a traditional due process analysis is required to assess whether the Commission’s actions deprived Surgery Centers of constitutionally-protected interests.

Applying this analysis, we hold Surgery Centers have not established the requisite liberty or property interest to invoke the due process protections of Article I, Section 22.  Initially, we agree with the circuit court’s conclusion that Surgery Centers have no property interest that was implicated by the Commission’s revision of the maximum allowable payment schedules.  Furthermore, Surgery Centers have not set forth any argument that the result of the Commission’s actions implicated a liberty interest. Instead, as we interpret Surgery Centers’ argument, they are primarily concerned with receiving future income based on desired future work.  The mere desire for future work, however, is not sufficient to constitute a private right.  Moreover, we emphasize that Surgery Centers’ decision to provide medical care to workers’ compensation claimants is entirely voluntary.

Accordingly, we conclude Surgery Centers have failed to establish any private right that warrants the protections provided in Article I, Section 22.  See 16C C.J.S. Constitutional Law § 1516 (2010) (“[A]n interest in property which is protected by due process arises only when there is a legitimate claim of entitlement, as created and defined by independent sources, and a person clearly must have more than an abstract need or desire for it, and the person must have more than a unilateral expectation of it.”); see also Am. Soc’y of Cataract & Refractive Surgery v. Thompson, 279 F.3d 447 (7th Cir. 2002) (holding physicians providing Medicare services had no protected property interest in statutory transition formula used to determine practice expense relative value units as a component of a Medicare physician fee schedule); Painter v. Shalala, 97 F.3d 1351 (10th Cir. 1996) (concluding physicians, who voluntarily participated in Medicare program, failed to demonstrate a legitimate property interest in having reimbursement payments calculated in a specific manner).

Our conclusion should not be interpreted as providing the Commission with “unfettered authority” to adjust the reimbursement rate.  If Surgery Centers believe that the authorized payment for services rendered is inadequate, they may invoke the due process protections afforded by the Commission. See 25A S.C. Code Ann. Regs. 67-1305 (Supp. 2009) (outlining appellate procedures for when a medical provider disagrees, based on Commission payment policy, with a charge reduction).

Furthermore, to the extent Surgery Centers claim our decision will in essence provide all state agencies with unlimited authority, we find this concern to be unfounded.  Given the analysis outlined in the opinion, we emphasize our decision is controlled by specific statutory and regulatory provisions at issue in the instant case.  Thus, our holding should not be construed as advocating for state agencies to exceed the authority granted to them by the General Assembly.  See Bazzle v. Huff, 319 S.C. 443, 445, 462 S.E.2d 273, 274 (1995) (“An administrative agency has only such powers as have been conferred by law and must act within the authority granted for that purpose.”); Captain’s Quarters Motor Inn, Inc. v. S.C. Coastal Council, 306 S.C. 488, 490, 413 S.E.2d 13, 14 (1991) (stating that “[a]s a creature of statute, a regulatory body is possessed of only those powers expressly conferred or necessarily implied for it to effectively fulfill the duties with which it is charged”).

III.  CONCLUSION

Based on the foregoing, we affirm the circuit court’s findings that Surgery Centers did not establish a right to a “contested case” hearing under the APA and did not have the requisite property interest to invoke our state’s constitutional due process protections.  We, however, reverse the circuit court’s holding that the Commission was required to promulgate a new regulation in order to change the fee payment schedule.  In light of our decision, we lift the pendente lite order enjoining the Commission from instituting the new payment schedule.

AFFIRMED IN PART AND REVERSED IN PART.

TOAL, C.J. and PLEICONES, J., concur. HEARN, J., dissenting in a separate opinion in which KITTREDGE, J., concurs.

JUSTICE HEARN:  I respectfully dissent and would affirm the decision of the circuit court.  In my opinion, the Workers Compensation Commission (Commission), when changing the reimbursement rate for ambulatory surgery centers in a manner that substantially alters the prior rate, must afford notice and an opportunity to be heard to those affected by the change.  The proper means to achieve notice and an opportunity to be heard is by requiring these revisions to be promulgated through regulations submitted to the General Assembly for its approval, and I would require the Commission to do so in this case.

Although both sides agree this issue should be decided as a matter of law, both disagree with the decision of the circuit court.  Surgery Centers argue the circuit court erred in finding they did not have the right to a contested case under Section 1-23-310(3).[8]  Conversely, the Commission contends the circuit court erred in holding Surgery Centers had a right to have any revision of the schedules promulgated in a regulation, while at the same time holding Surgery Centers had no property interest in the payment schedule established by the Commission.  Unlike the majority, I would find no error, because I believe the right to notice and a hearing claimed by Surgery Centers does not hinge on the existence of a liberty or property interest.

Section 42-3-30 of the South Carolina Code (1985) requires the Commission to promulgate regulations relating to the administration of the workers’ compensation laws of this State.  Section 1-23-110 of the South Carolina Code (2005 & Supp. 2009) provides that, before the Commission promulgates a regulation, it must publicize notice of the change, detailing an address where interested persons may submit written comments before the regulations are tendered to the General Assembly.  Thus, generally speaking, section 42-3-30 requires the Commission to promulgate regulations for matters affecting workers’ compensation programs in this state, and section 1-23-110 requires the Commission to give notice before promulgating a regulation and provide interested individuals with the opportunity to be heard.  Therefore, pursuant to the statutes detailed above, I believe the Commission is required to give notice and provide for an opportunity to be heard before adopting the new schedules contained in the recommendations of the Hospital Advisory Committee.

The Commission maintains, and the majority holds, the necessary regulation authorizing its conduct has already been promulgated in regulation 67-1304.  Following this reasoning, the Commission’s conduct in commissioning the Advisory Committee to study the situation, then subsequently adopting its recommendations, is simply fulfilling the directive of regulation 67-1304, albeit nine years later.  Additionally, the Commission cites the affidavit of its Executive Director, Gary Thibault, wherein he stated that since 1984, “in each case where the Commission has established a new or revised schedule of maximum allowable payments for services, the Commission did so by a vote of the Full Commission at a monthly Business Meeting.”  The mere fact that this practice has existed, without apparent challenge until today, is, in my opinion, not dispositive of its legitimacy.

Furthermore, “there is a basic presumption that the legislature has knowledge of previous legislation as well as of judicial decisions construing that legislation when later statutes are enacted concerning related subjects.”  Whitner v. State, 328 S.C. 1, 6, 492 S.E.2d 777, 779 (1997) (citing Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993); 82 C.J.S. Statutes § 316, at 541-42 (1953)).  Therefore, absent specific language in regulation 67-1304, or other qualifying statute, that authorizes the Commission to act in the revision of these maximum allowable payment schedules for ambulatory surgery centers without promulgating a new regulation as provided in sections 42-3-30 and 1-23-110, this Court must presume the General Assembly intended the Commission to promulgate a regulation in this matter.  Instead, the majority reads a mandate in favor of the Commission that does not expressly exist within the plain and unambiguous terms of regulation 67-1304:  instead of adhering to the general rule that all changes in the administration of Workers’ Compensation must be accomplished through the promulgation of regulations, the majority holds that a legislative directive contained in a prior regulation absolves the Commission in perpetuity from thereafter complying with an express statute.  Importantly, although regulations authorized and adopted by the General Assembly generally have the force of law, a regulation may not alter or add to an existing statute.  See Goodman v. City of Columbia, 318 S.C. 488, 490, 458 S.E.2d 531, 532 (1995) (stating that insofar as a regulation added a requirement to a statute, the specifications set forth in the statute must prevail).  Therefore, even assuming such a “mandate” can be read into regulation 67-1304, it is invalid insofar as it could be interpreted to permit the Commission to act absent promulgation of a regulation under section 42-3-30.

Moreover, article 1, section 22 of the South Carolina Constitution, which was adopted by the General Assembly in 1970, provides:  “No person shall be finally bound by a judicial or quasi judicial decision of an administrative agency[9] affecting private rights except on due notice and an opportunity to be heard . . . and he shall have in all such instances the right to judicial review.”  Commenting on the basis for the recommended addition of section 22, the Committee authorized to make proposals to change the existing Constitution stated:

More and more governmental decisions are being made under powers delegated to administrative divisions of State Government.  In many cases, the decisions of administrative divisions are more significant than laws enacted by the General Assembly or decisions made by the courts.  The Committee agrees with many other constitutional study groups throughout the country that judicial and quasi-judicial decisions of administrative agencies should be consistent with due process of law and complete fairness to the citizen.  This provision is recommended as a safeguard for the protection of liberty and property of citizens.

Final Report of the Committee to Make a Study of the South Carolina Constitution of 1895, p. 21 (1969).

I agree with the majority that the circuit court correctly found Surgery Centers had no “property” interest that was implicated by the Commission’s revision of the maximum allowable payment schedules, in the sense that Surgery Centers had no right to a guaranteed payment schedule at the discount rate of 12.1 percent.  In order to determine the effect of Surgery Centers’ lack of a cognizable property interest on their entitlement to notice and an opportunity to be heard under article 1, section 22, it is imperative that this Court examine the source of these private rights.  While the circuit court, the parties, and the majority by acquiescence, have denominated the rights sought by Surgery Centers as “due process rights,” I believe a closer examination reveals the label to be incorrect.  In previous cases, this Court has been inconsistent in the manner in which it has labeled rights flowing from article 1, section 22 of our State Constitution.  In some cases, we have referred to the guarantees of notice and the right to be heard emanating from article 1, section 22 as “due process rights.”  See League of Women Voters of Georgetown County v. Litchfield-by-the-Sea, 305 S.C. 424, 426-27, 409 S.E.2d 378, 380 (1991) (overruled on specific grounds by Brown v. S.C. Dep’t of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002); Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 444, 511 S.E.2d 48, 54 (1998).  In other cases, the Court has, without calling them “due process rights,” simply stated article 1, section 22 guarantees “persons the right to notice and an opportunity to be heard by an administrative agency . . . .”  Ross v. Medical Univ. of S.C., 328 S.C. 51, 68, 492 S.E.2d 62, 71 (1997).

I do not think the rights guaranteed under article 1, section 22 are the same as those classically protected under the Due Process Clause of our State and National Constitutions.  See U.S. Const. amend. XIV § 1; S.C. Const. art. V, § 5 (stating no person shall be deprived of life, liberty, or property without due process of law).  Even if the Court has referred to the rights under article 1, section 22 as “due process rights,” for claims under section 22, we have neither focused on, nor required the existence of a liberty or property interest, in the sense of a prerequisite to the Court’s analysis of claims under the Due Process Clause.  Stono River Envtl. Prot. Ass’n v. S.C. Dep’t of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991); League of Women Voters of Georgetown County, 305 S.C. at 426-27, 409 S.E.2d at 380; Ross, 328 S.C. at 68, 492 S.E.2d at 71; Garris, 333 S.C. at 444, 511 S.E.2d at 54.

As stated above, I recognize the right to notice and an opportunity to be heard are typically identifiable with rights incident to the Due Process Clause of the Fourteenth Amendment.  See Clear Channel Outdoor v. City of Myrtle Beach, 372 S.C. 230, 235, 642 S.E.2d 565, 567 (2007) (“Due process requires (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses.”).  However, in this case, the right of Surgery Centers to notice and an opportunity to be heard emanates, not from the Due Process Clause, but from article 1, section 22 of our State Constitution and from section 1-23-110.  Therefore, because the rights in this case do not flow from the Due Process Clause, I believe it unnecessary, as the majority has done, to employ a traditional due process analysis to determine whether Surgery Centers’ constitutionally protected interests have been deprived.  See Sloan v. S.C. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 483, 636 S.E.2d 598, 614 (2006) (stating in order for due  process rights to attach, a party must show that he was arbitrarily and capriciously deprived of a cognizable property interest rooted in state law).

Instead, I would look solely to the process through which the Commission enacted its new prospective payment system for Surgery Centers.  In my view, the Commission’s actions in forming the Advisory Committee to study, develop, and propose a new prospective payment system for outpatient hospital services and the services rendered by ambulatory surgical centers, and the Commission’s subsequent adoption of the Advisory Committee’s proposal, all without the proper notice and opportunity to be heard by Surgery Centers, constitute exactly the sort of quasi judicial decision section 22 was intended to address.

Finally, I am not persuaded that the General Assembly intended to provide the Commission with unfettered authority to adjust this reimbursement rate in perpetuity without affording the safeguards which attach to provisions promulgated within the framework of the regulatory process.  Consequently, I would vote to affirm the circuit court’s determination that Surgery Centers are entitled to the proper notice and opportunity to be heard under section 1-23-110.  Under out State’s jurisprudence, should the Commission want to establish a new prospective payment system it should do so by promulgating a new regulation subject to the participation of interested parties under sections 42-3-30 and 1-23-110, and the subsequent adoption by the General Assembly.

KITTREDGE, J., concurs.

[1]  Section 42-15-90 provides in relevant part:

Fees for attorneys and physicians and charges of hospitals for services under this title shall be subject to the approval of the Commission; but no physician or hospital shall be entitled to collect fees from an employer or insurance carrier until he has made the reports required by the Commission in connection with the case.

S.C. Code Ann. § 42-15-90 (1985).  The approval process is outlined in 25A S.C. Code Ann. Regs. 67-1305 (Supp. 2009), which provides that a fee dispute between a medical provider and an employer or insurance carrier is referred to the Commission’s medical division for final resolution.  Any policies or procedures implementing the provisions of section 42-15-90 are governed by the South Carolina Administrative Procedures Act.  S.C. Code Ann. § 42-3-185 (1985).

[2]  In terms of medical cost containment, the General Assembly has provided that medical costs should be limited to reasonable costs.  See S.C. Code Ann. § 42-15-70 (1985) (“The pecuniary liability of the employer for medical, surgical and hospital service or other treatment required, when ordered by the Commission, shall be limited to such charges as prevail in the community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person . . . .”).

[3]  To a limited extent, articles about the issues and the process were published in the following periodicals:  (1) the Winter 2004 and 2005 editions of Workers’ Comp Notes, a publication of the South Carolina Workers’ Compensation Educational Association; (2) the April 2005 Commission Update; and (3) the State Register that was published in April 2006.

[4]  S.C. Code Ann. §§ 1-23-10 to -660 (2005 & Supp. 2009).

[5]  Section 1-23-310(3) defines a “contested case” as “a proceeding including, but not restricted to, ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.”  S.C. Code Ann. § 1-23-310(3) (2005).

[6]  Although not relied upon by the circuit court, we likewise reject Surgery Centers’ contention that section 42-3-30 of the South Carolina Code required the Commission to promulgate a regulation in this instance.  Section 42-3-30 provides that the Commission “shall promulgate all regulations relating to the administration of the workers’ compensation laws of this State necessary to implement the provisions of this title and consistent therewith.”  S.C. Code Ann. § 42-3-30 (1985).  We believe this general code provision merely represents the General Assembly’s intent to identify the Commission as the sole authority for the administration of workers’ compensation law.  Given the absence of a specific statutory provision, we decline to read into section 42-3-30 a requirement that the Commission promulgate a regulation in order to change the fee payment schedule for ambulatory care centers.

[7]  In terms of our state’s general due process protection, Article I, Section 3 provides:

The privileges and immunities of citizens of this State and of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

S.C. Const. art. I, § 3.

[8] I agree with the majority that the circuit court correctly held Surgery Centers did not establish the necessary independent right to a contested case under section 1-23-310(3).  See Triska v. Dep’t of Health and Envtl. Control, 292 S.C. 190, 196-97, 355 S.E.2d 531, 534 (1987) (stating a contested case does not exist where there is no requirement deriving from South Carolina or Federal law that there be an opportunity for a hearing).  However, that ruling does not foreclose Surgery Centers’ right to notice and an opportunity to be heard on other grounds, as set forth herein.  See Stono River Envtl. Prot. Ass’n v. S.C. Dep’t of Health and Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991) (finding parties are entitled to notice and an opportunity to be heard, apart from the APA, under article 1, section 22 of our Constitution).

[9] The Commission qualifies as an agency under section 1-23-10(1) of the South Carolina Code (2005).  (providing an “‘[a]gency’ or ‘State agency’ means each state board, commission, department, executive department or officer . . . authorized by law to make regulations or to determine contested cases”).

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.