THIS OPINION
HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Ex Parte:
GuideOne Insurance Company, Carrier, Appellant,
In
Re:
John T. Evans, Respondent,
v.
White Oaks Conference Center, Employer, Appellant.
Appeal From Fairfield County
Kenneth G. Goode, Circuit Court Judge
Unpublished Opinion No. 2008-UP-122
Submitted January 2, 2008 Filed February
19, 2008
REVERSED IN PART, AFFIRMED IN PART AND REMANDED
Matthew R. Cook, of Columbia, for Appellants.
J. Marvin Mullis, of Columbia, for Respondent.
PER CURIAM: Employer, White Oak Conference Center (Employer),[1] contends the circuit court erred in reversing the decision of the South Carolina Workers Compensation Commission finding Claimant, John Evans (Evans), (1)
had not suffered compensable injuries to his left knee and foot as a result of
an on the job fall, and (2) had reached maximum medical improvement. We
reverse in part, affirm in part, and remand.[2]
FACTS
On January 9, 2004, while working for
Employer, Evans fell 15 feet from a ladder to the concrete floor below. Evans
landed directly on his feet. An accident report, filled out at the scene of
the accident, indicates injury to Evans ankle.[3]
Later that day, after finishing work, Evans went to the Fairfield Memorial Hospital complaining of problems with his right ankle and foot. He did not complain
of any left ankle or knee pain. Evans was diagnosed with a sprain of the right
ankle and referred to Dr. Steven Barnett.
Evans
reported to Dr. Barnett, three days after the fall, complaining of a tremendous
pain and swelling around the right ankle and foot. Evans denied any other
trauma or injury. Dr. Barnett indicated Evans was not progressing as quickly
as I had hoped, and referred Evans to an orthopaedist, Dr. Bradley Presnal of
the Moore Orthopaedic Clinic. Dr. Presnal diagnosed a right ankle sprain. Because
Evans continued to complain of right ankle pain even after a lengthy recovery period,
Dr. Presnal referred Evans to Dr. Frank Noojin to rule out the need for
arthroscopy.
On
August 31, 2004, Evans saw Dr. Green Neal via a referral from Evans lawyer. Evans
complained to Dr. Neal of left and right ankle pain and left knee pain. Dr.
Neal found an enlarged right ankle . . . crepitation in the knees . . . [and
that] the left ankle does not have that much crepitation but [Evans] complains
of pain in it. Dr. Neal diagnosed Evans with Type II diabetes suggesting it is
the reason [Evans] injuries would not heal. Evans was also diagnosed with pre-existing
gouty arthritis with elevated uric acid levels which Dr. Neal believed complicated
Evans injuries and resulted in slowed recovery and failure to heal. He also
found these conditions were aggravated or worsened by the trauma from the
fall. Dr. Neal scheduled additional MRIs of Evans left knee and ankle for
September 14, 2004.
Meanwhile, on September 2, 2004, Evans returned to Dr. Noojin, but
did not complain of any injury or pain to his left ankle or knee. Dr. Noojin found
Evans at maximum medical improvement (MMI) and assigned a 3% permanent partial
impairment rating to his right lower extremity.
Evans
returned to Dr. Neal on September 28, 2004. Dr. Neal found: Evans left ankle
showed a contusion with a small amount of fluid, possibly associated with
plantar fasciitis; Evans left knee showed a thinning of the ACL suggesting
degenerative changes; and Evans right ankle evidenced a contusion and tear.
Finally, on November 3, 2004, Evans returned to Dr. Noojin complaining, for the
first time, of bilateral ankle pain. Yet, Evans did not bring the new MRIs
nor mention to Dr. Noojin the findings of Dr. Neal. Dr. Noojin reiterated his
previous findings and discharged Evans at MMI.
After an evidentiary hearing, the single commissioner
issued an order finding Evans had reached MMI, awarding six percent permanent
partial disability for the lower right extremity, and denying compensability
for the injuries to the left foot and knee. The single commissioner explained,
I give more weight to the reports of the authorized treating physicians than I
do the testimony of [Evans] physician, who is not a certified orthopedist.
The order was affirmed by the full commission. Evans then appealed to the
circuit court.
After a hearing, the circuit court found [t]he substantial
evidence in the record is susceptible of but one reasonable inference,
i.e. that the injuries to [Evans] left lower extremity were compensable as
having been sustained along with the injuries to his right lower extremity in
the admitted work accident. (emphasis in original) Further, the circuit court
noted no evidence was presented to contradict the expert medical opinion of
Dr. Neal indicating [Evans] left sided injuries were caused or at the
very least aggravated by the work fall and injuries. Thus, the circuit court reversed
the denial of compensability for Evans left-sided injuries, reversed the order
of permanent partial disability, and remanded to the full commission for an
order of causally related medical care. This appeal follows.
STANDARD OF REVIEW
Appellate review of
workers compensation decisions is governed by the South Carolina Administrative
Procedures Act (APA). Shealy v. Aiken County, 341 S.C. 448, 454, 535
S.E.2d 438, 442 (2000); See also Lark v. Bi-Lo, Inc., 276 S.C.
130, 134-35, 276 S.E.2d 304, 306 (1981). Pursuant to the APA, a reviewing
court may affirm the decision of an agency or remand the case for further
proceedings, or may reverse or modify the decision of an agency if the
findings, inferences, conclusions or decisions of that agency are clearly
erroneous in view of the reliable probative and substantial evidence on the
whole record. S.C. Code Ann. §1-23-380(A)(6) (2005); see also Bass
v. Kenco Group, 366 S.C. 450, 456, 622 S.E.2d 577, 580 (Ct. App. 2005).
The
commission is the ultimate fact finder and is specifically reserved the task of
assessing the credibility of the witnesses and the weight to be accorded
evidence. Shealy, 341 S.C. at 455, 535 S.E.2d at 442. On appeal, this court
determines whether the circuit court properly determined whether the commissions
findings of fact are supported by substantial evidence in the record or whether
the commissions decision is affected by an error of law. Geathers v. 3V.
Inc., 371 S.C. 570, 576, 641 S.E.2d 29, 32 (2007). Substantial evidence is
not a mere scintilla of evidence but rather is evidence which, considering the
record as a whole, would allow reasonable minds to reach the conclusion that
the commission reached. Shealy, 341 S.C. at 455, 535 S.E.2d at 442; Rodney
v. Michelin Tire Corp., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996). The
mere possibility of drawing two inconsistent conclusions from the evidence does
not prevent the commissions findings from being supported by substantial
evidence. Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d
388, 391 (1995).
LAW/ANALYSIS
Employer contends
the circuit court erred in reversing the decision of the commission because
substantial evidence existed to support the decision in full. We reverse and
remand.
Employer contends
the circuit erred in reversing the commissions finding and conclusion that
Evans had not suffered compensable injuries to his left knee and foot as a
result of the fall.
On
appeal, the circuit court found the commissions decision was disproportionally
based on the fact the accident and emergency room reports did not mention left
sided symptoms and on the lack of evidence as to the left-sided injuries in the
reports of the authorized physicians. The circuit court found no expert
medical evidence was offered to dispute Dr. Neals testimony the left-sided
injuries were caused or at the very least aggravated by the work fall
and injuries. The circuit court concluded,
the
record is susceptible of but one reasonable inference, i.e. that the
injuries to [Evans] left lower extremity were compensable . . . the
Commissions decision is unsupported where weight was given only to the opinion
of the authorized treating physicians yet those physicians made no mention of
[Evans] pre-existing conditions and left no opinion as to the effect of the
fall on those conditions or the effect of those conditions on the injuries
sustained in the fall.
We
find the commission considered all the medical evidence and other testimony in
finding Evans suffered no direct impairment of his lower left extremity or to
his feet as a result of the accident. The commission considered not only the
accident report and hospital report from the day of the accident but also the
reports of the authorized physicians and Dr. Neal. However, the commission
made no specific finding of fact concerning the issue of pre-existing
conditions and possible aggravation presented by Evans. Under the Workers
Compensation Act, an injured claimant is entitled to compensation and medical
benefits for disability arising from a permanent physical impairment in
combination with a pre-existing impairment if the combined effect results in a
substantially greater disability. Curiel v. Envtl. Mgmt. Servs., Op.
No. 26409 (S.C. Filed Dec. 20, 2007) (Shearouse Adv. Sh. No. 43 at 40) (citing Ellison
v. Frigidaire Home Prods., 371 S.C. 159, 638 S.E.2d 664 (2006) (applying
S.C. Code Ann. § 42-9-400 (1985 & Supp. 2005))).
The
commission must make specific findings of fact upon which a claimants right to
compensation is based. See S.C. Code Ann. §1-23-350 (2005); Shealy
v. Algernon Blair, Inc., 250 S.C. 106, 109, 156 S.E.2d 646, 648 (1967); 73A
C.J.S. Public Administrative Law and Procedure §274 (2007) (Where the
requirements as to administrative findings are contained in statutes, the
findings must comply therewith.) An appellate court, reviewing an order of
the commission, cannot make findings of fact when the commission has failed to
do so because, in doing so, [the] court would improperly assume the commissions
role as factfinder. Nettles v. Spartanburg Sch. Dist. #7, 341 S.C.
580, 590, 535 S.E.2d 146, 151 (Ct. App. 2000). In reviewing a final decision of
an ALJ, as when reviewing a final decision of an agency, the circuit court
essentially sits as an appellate court to review alleged errors committed by
the ALJ. Al-Shabazz v. State, 338 S.C. 354, 379, 527 S.E.2d 742, 755
(S.C. 2000). Because the commission did not make specific findings of fact concerning
the issue of aggravation, we cannot conduct a meaningful review and must reverse
the circuit courts finding of an aggravated compensable left-sided injury and remand
the issue to the commission. See, e.g., Parsons v. Georgetown Steel,
318 S.C. 63, 456 S.E.2d 366 (1995) (holding an order of the commission that
does not include sufficiently detailed findings of fact must be remanded to the
commission)
Additionally,
Employer contends the circuit court erred
in reversing the commissions finding and conclusion that Evans reached MMI. We
affirm.
The
circuit court held the commissions decision to decide the issue of permanent
partial disability constituted a denial of due process. The circuit court
found Evans specified in his Form 50 that he was not requesting a permanency
determination at this time. The circuit court concluded Evans was entitled to
notice of issues to be decided and was entitled to have the commission
determine only those issues properly brought before it.
On
appeal to this court, Employer asserts temporary benefits may be terminated
upon a showing of MMI, citing Smith v. S.C. Dept of Mental Health, 335
S.C. 396, 517 S.E.2d 694 (1999) and Anderson v. Baptist Medical Center and
Palmetto Hospital Trust Fund, 343 S.C. 487, 541 S.E.2d 526 (2001). Thus,
because there was substantial evidence to support this finding, specifically
Dr. Noojins report, Employer claims the circuit court erred in reversing the
finding of MMI. However, Employer failed to appeal the circuit courts finding
the commissions decision on permanent partial disability constituted a denial
of Evans due process.[4]
An unappealed ruling becomes the law of the case. See Auto Owners
Ins. Co. v. Langford, 330 S.C. 578, 583 n.2, 500 S.E.2d 496, 498 n. 2 (Ct.
App. 1998) (noting trial courts ruling on an issue becomes law of the case if
appellant fails to take exception to it both before the trial court and on
appeal). Accordingly, we affirm the circuit courts reversal and remand of the
commissions finding of MMI.
CONCLUSION
On
remand, we direct the commission to allow the parties to submit evidence and
fully develop the record as to aggravation of any pre-existing conditions, the
issue of permanent partial impairment and whether Evans has reached MMI.
Therefore,
the circuit courts order reversing the findings and conclusions of the commission
are hereby
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.
HUFF and PIEPER, JJ., and CURETON, A.J., concur.
[1] Employers Insurance Carrier, Guide One Insurance
Company, is also listed as an appellant to this action.
[2] We decide this case without oral argument pursuant to
Rule 215, SCACR.
[3] The
accident report does not indicate whether Evans injured his right or left
ankle.
[4] Similarly, on appeal, Evans did not present the
due process argument used by the circuit court. Rather, Evans contends the
circuit court properly reversed the finding of MMI because he was never
provided treatment for his left lower extremity and thereby has not reached
MMI.