Schurlknight v. City of North Charleston

545 S.E.2d 833, 345 S.C. 45, 2001 S.C. App. LEXIS 50
CourtCourt of Appeals of South Carolina
DecidedMarch 26, 2001
DocketNo. 3324
StatusPublished
Cited by2 cases

This text of 545 S.E.2d 833 (Schurlknight v. City of North Charleston) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schurlknight v. City of North Charleston, 545 S.E.2d 833, 345 S.C. 45, 2001 S.C. App. LEXIS 50 (S.C. Ct. App. 2001).

Opinions

SHULER, Judge:

In a decision affirmed by the workers’ compensation commission and the circuit court, the single commissioner found Ralph Schurlknight’s claim for benefits barred by the statute of limitations. Schurlknight appeals. We affirm.

[47]*47FACTS

Schurlknight worked as a fireman for the City of North Charleston from 1973 until August of 1997.1 Between 1976 and 1997, Schurlknight served as a captain and rode in the passenger seat of the fire truck between five and fifteen times per week. On each call, Schurlknight was exposed to the sirens and air horns which were several feet from his seat. Schurlknight would leave his window down to listen for traffic and other emergency vehicles, and turned the radio up to a volume that could be heard over the sirens and horns.

Schurlknight had a hearing test performed on April 14,1995 as part of a routine physical. Dr. Weissglass, Schurlknight’s physician, reported Schurlknight had “some hearing loss that fits the pattern of noise induced.” Schurlknight testified he was told he had a “slight, slight hearing impairment” which the physician would monitor each year. Prior to the physical, Schurlknight had not noticed any hearing loss. Dr. Weiss-glass recommended Schurlknight wear hearing protection and referred him to the Charleston Speech and Hearing Center (the Center).

Schurlknight received counseling at the Center regarding the adverse communication effects of his hearing impairment and was subsequently referred to vocational rehabilitation services for funding assistance for hearing aids. The Center’s report, which was mailed to Schurlknight on May 3, 1995, indicated that Schurlknight’s hearing loss was moderate and imposed a communication handicap. Dr. Fenwick, who reported on Schurlknight’s condition, described “a history of bilateral hearing loss which has slowly progressed over the last several years.” On May 10, 1995, Dr. Fenwick recommended Schurlknight obtain annual audiograms concluding the “hearing loss will likely continue to worsen and [Schurlknight] may ultimately need hearing aids in the future, although I would expect that this would be 10 years away.”

Schurlknight continued his work as a fireman and did not file a claim as he was still able to perform his job and he believed Dr. Weissglass would monitor his hearing at his annual physicals.

Schurlknight had another physical and hearing test performed in February of 1996, in anticipation of the North [48]*48Charleston District’s merger with the City of North Charleston. Dr. Weissglass again performed the physical and the hearing test and, according to Schurlknight, described his hearing loss as “minor, go back to work.” Dr. Weissglass reported “[Schurlknight] needs protective gear for hearing and annual audiograms.” Schurlknight testified that he did not wear his hearing protection because he could not hear the radio transmission while in the fire truck if he wore ear plugs. Schurlknight continued to work until August of 1997, when he left the fire department due to unrelated medical problems.2 Schurlknight has not worked since 1997.

After leaving the fire department, Schurlknight noticed more severe hearing loss. In December of 1997, Dr. Fenwick performed another audiogram. Schurlknight’s understanding of the results is that his hearing loss is severe. Dr. Fenwick reported Schurlknight’s loss as 22.5% to the right ear and 37.5% to the left ear resulting in a binaural hearing impairment of 12.5%, describing the loss as “mild to moderately— severe.”

Schurlknight filed his Form 50 claim for benefits on March 6,1998. The City of North Charleston and the State Accident Fund filed a Form 51 denying the claim based, inter alia, on the statute of limitations. The single commissioner denied the claim, finding it barred by the two year statute of limitations. The single commissioner concluded Schurlknight “knew that he had a workers’ compensation claim for a hearing loss at least by May 1995.”

Schurlknight appealed to the full commission arguing essentially four issues: 1) Schurlknight was not aware he had a compensable claim until much later than May of 1995; 2) Schurlknight timely filed his claim as he continued to incur damage until his last exposure in August of 1997 and it was thus not barred by the statute of limitations; 3) Schurlknight suffered from permanent partial disability; and 4) Schurlknight’s hearing loss is causally related to his employment.

In a two-to-one decision, the full commission affirmed the single commissioner. The dissenting commissioner concluded, inter alia, the City of North Charleston and the State Acci[49]*49dent Fund were estopped from denying the claim as they gave Schurlknight sufficient reason to believe they would provide yearly testing and take care of his hearing problems.

Schurlknight appealed to the circuit court raising the same issues raised to the full commission. The circuit court concluded the issues were: 1) the statute of limitations; and 2) estoppel. Concluding the discovery rule applied, the circuit court affirmed the commission’s ruling that the statute of limitations barred the claim. The circuit court did not rule on the estoppel issue. This appeal follows.

STANDARD OF REVIEW

The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers’ Compensation Commission. Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981). In an appeal from the commission, this Court may not substitute its judgment for that of the commission as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law. S.C.Code Ann. § 1-23-380(A)(6) (Supp.2000); Stephen v. Avins Constr. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct.App.1996); see also Smith v. Union Bleachery/Cone Mills, 276 S.C. 454, 456, 280 S.E.2d 52, 53 (1981) (court may reverse or modify agency’s decision “if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are ... affected by other error of law.”); Lyles v. Quantum Chem. Co., 315 S.C. 440, 434 S.E.2d 292 (Ct.App.1993) (in reviewing decision of workers’ compensation commission, [the] court of appeals will not set aside its findings unless they are not supported by substantial evidence or they are controlled by error of law).

LAW/ANALYSIS

Schurlknight argues the commission erred in barring his claim based upon the statute of limitations. We disagree. South Carolina Code Annotated Section 42-15-40 provides in part:

The right to compensation under this title is barred unless a claim is filed with the commission within two years after an [50]*50accident, or if death resulted from accident, within two years of the date of death.

S.C.Code Ann. § 42-15-40 (Supp.2000). In Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 416 S.E.2d 639

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Related

Wigfall v. Tideland Utilities, Inc.
580 S.E.2d 100 (Supreme Court of South Carolina, 2003)
Schurlknight v. City of North Charleston
574 S.E.2d 194 (Supreme Court of South Carolina, 2002)

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545 S.E.2d 833, 345 S.C. 45, 2001 S.C. App. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schurlknight-v-city-of-north-charleston-scctapp-2001.