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
Kenneth L. Thigpen, Employee/Claimant, Appellant,
v.
Baker Homes, Inc., Self-Insured Employer, through the S.C. Home Builders
SIF, Respondent.
Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge
Unpublished Opinion No. 2004-UP-370
Submitted June 8, 2004 Filed June 15, 2004
AFFIRMED
Kenneth L. Thigpen, Jr., Pro se, for Appellant.
John Steven Rodenberg and Kirsten Leslie Barr, both of Mt. Pleasant,
for Respondent.
PER CURIAM: Kenneth L. Thigpen appeals an order of the circuit court
affirming the decision of an appellate panel of the Workers Compensation Commission
denying his claim for compensation. We affirm.
FACTS
Kenneth Thigpen was employed by Baker Homes on January 6, 2000, to disassemble
a house. While on the site, a large overhead beam fell and Thigpen reacted
by attempting to catch or block the beam. After seeing a chiropractor, he sought
the medical attention of Dr. James Aymond. Dr. Aymond indicated Thigpen complained
of lower back pain and posterior thigh pain. He recommended Thigpen undergo
an MRI, which later revealed a paracentral disc herniation. Thigpen continued
to be seen for treatment of his lower back and underwent physical therapy.
On May 11, 2000, Dr. Aymond indicated that Thigpen was able to lift weights
up to 60 pounds and recommended he undergo a functional capacity evaluation.
At his next visit on May 25, 2000, Thigpen was found to be able to lift within
a physical demand of medium. He was placed on a weight restriction of 50 pounds.
Dr. Aymond also found Thigpen had reached Maximum Medical Improvement (MMI)
and assigned an 8% impairment rating to his spine.
In April 2000, Thigpen was involved in a non work-related automobile accident.
In October 2000, he returned to Dr. Aymond, complaining of pain in his hip and
groin. Thigpen was referred to Dr. McCrosson for evaluation. After an MRI,
it was determined that Thigpen had right femoral head osteonecrosis.
[1] The main treatment plan was to perform a core depression of the hip.
Following a delay in treatment, the femoral head collapsed, requiring Thigpen
to undergo a hip replacement.
After filing for compensation benefits, the single commissioner found that
the spinal injury was compensable, that there was no compensable injury to Thigpens
hip, and that Thigpen reached MMI on May 25, 2000. In addition, the commissioner
found Thigpen was not entitled to temporary total disability benefits between
May 25 and September 8, 2000, and Baker Homes was entitled to a credit towards
the amount of permanent disability owed for the payments made to Thigpen between
May 25 and September 8, 2000.
An Appellate Panel of the Workers Compensation Commission (Commission) affirmed
the commissioners findings and awarded Thigpen $27,396.36 in permanent partial
disability for an 18% disability to his spine. The amount was offset by the
payments made between May 25 and September 8, 2000. The Commission reaffirmed
the finding that the femoral head osteonecrosis was not a compensable injury
related to the January 6, 2000 accident. The circuit court affirmed and determined
there was substantial evidence to support the decision of the Commission. This
appeal follows.
STANDARD OF REVIEW
The Administrative Procedures Act establishes the standard
of review for decisions by the South Carolina Workers Compensation Commission
as the substantial evidence standard. Lark v. Bi-Lo, Inc., 276 S.C.
130, 134-35, 276 S.E.2d 304, 306 (1981). Substantial evidence is not a mere
scintilla of evidence nor evidence viewed from one side, but such evidence,
when the whole record is considered, as would allow reasonable minds to reach
the conclusion the Full Commission reached. Shealy v. Aiken County,
341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000). In workers compensation cases,
the Full Commission is the ultimate fact finder. Id.
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. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2003). The appellate
court can reverse or modify the Commissions decision only if the claimants
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. Id.
DISCUSSION
Thigpen raises a total of ten issues in his pro se brief. However
only three issues were properly presented to the circuit court. Any issue raised
to this court must previously been raised to and ruled upon by the commission
and the circuit court. [2] See Pratt v. Morris Roofing, Inc.,
353 S.C. 339, 352, 577 S.E.2d 475, 481-82 (Ct. App. 2003) (noting that an issue
cannot be raised for the first time on appeal, but must have been raised to
and ruled upon by the trial court).
Therefore, the only issues that are properly preserved
for our review are the three that were ruled upon by the Commission and presented
for appellate review to the circuit court. See Rodney v. Michelin
Tire Corp., 320 S.C. 515, 517, 466 S.E.2d 357, 358 (1996) (Arguments not
raised to the workers compensation commission or to the circuit court are not
preserved for appeal.). The three issues which are preserved for our review
include whether the Commission properly determined: 1) the femoral head osteonecrosis
was not causally related to the January 2000 accident; 2) Thigpen reached MMI
as to his spinal injury in May 2000 and is not entitled to any further medical
treatment for his hip or his spine; and 3) Thigpen was not entitled to temporary
total disability payments from May 25, 2000 through September 8, 2000, and Respondent
is entitled to a credit for these payments against the amount of permanent partial
disability it is required to pay.
I. Coverage for the Hip Injury
Thigpen contends the Commission erred in finding he was not entitled to compensation
benefits for his alleged hip injury. He maintains the evidence indicates the
injury was an injury by accident sustained during the course of his employment.
We find there is evidence in the record to support the Commissions determination
that the hip injury was not causally related to the January 2000 accident.
Dr. Aymonds medical notes indicate Thigpen complained of lower back pain,
which radiated through his thighs. Throughout several months of visits with
Dr. Aymond for follow-up and treatment, there is no mention in the medical records
of a complaint of hip pain. Thigpen did not complain of pain in the hip or
the groin until October of 2000. In a letter regarding his treatment of Thigpen,
Dr. Aymond explained:
In my experience, avascular necrosis from trauma is only suspected after
a severe pelvic injury, such as a hip dislocation that disrupts the blood
supply to the femoral head. There are other nontraumatic reasons for avascular
necrosis, but these by definition do not involve any trauma in my experience.
Therefore, in my opinion to a reasonable degree of medical certainty, Mr.
Thigpens avascular necrosis of his right hip is not related to his work-related
injury in January of 2000.
Thigpen was referred to Dr. McCrosson for evaluation of the
hip. Dr. McCrosson initially indicated the femoral head osteonecrosis might
have been related to Thigpens work injury on January 6, 2000. However, he
later indicated: At this time I feel that there are too many factors confounding
the issue and that it is impossible to say with any medical certainty what the
cause of Mr. Thigpens avascular necrosis is. Dr. Rustin, who also saw Thigpen
for his hip injury, stated, it is impossible for me to attribute the probability
of the cause of his avascular necrosis to his workers comp event.
We find that substantial evidence exists in the record to support the finding
of the Commission that Thigpens injury is not the result of an injury by accident
arising out of and in the course of his employment.
II. Entitlement to Benefits Beyond May 25, 2000
Thigpen asserts that he should be entitled to compensation and continued medical
care for his femoral head osteonecrosis. As we have determined above, Thigpens
hip injury is not causally related to the January 2000 accident. Accordingly,
he is not entitled to continued medical care for his hip.
We construe a portion of Thigpens argument as questioning the finding that
he reached maximum medical improvement (MMI) as to his compensable injury.
Maximum medical improvement is a term used to indicate that a person has reached
such a plateau that in the physicians opinion there is no further medical care
or treatment which will lessen the degree of impairment. OBanner v. Westinghouse
Elec. Corp., 319 S.C. 24, 28, 459 S.E.2d 324, 327 (Ct. App. 1995). The
Commission must make a factual determination of whether the claimant has reached
MMI. See id. This Court would only reverse the finding of the
Commission if it is unsupported by substantial evidence. See Shealy,
341 S.C. at 455, 535 S.E.2d at 442.
In this case, Dr. Aymond indicated in a medical record dated May 25, 2000:
I believe the patient has reached [MMI] and has an impairment of 8% impairment
of the spine. We will plan to see him in follow-up as needed. While Thigpen
does not specifically challenge the finding that he reached MMI as to his spinal
injury, the above documentation provides support for the Commissions finding.
Accordingly, the determination that Thigpen reached MMI on May 25, 2000 and
is not entitled to further temporary total disability benefits is supported
by substantial evidence.
III. Benefits Between May and September 2000
Thigpen contends the Commission erred in determining that he was not entitled
to benefits from May 25 to September 8, 2000. We disagree.
Workers compensation awards have generally provided
for temporary total disability benefits until maximum medical improvement, at
which point a claimant receives permanent partial disability if warranted.
OBanner, 319 S.C. at 28, 459 S.E.2d at 326. The Commission must make
a factual determination of whether the claimant has reached MMI, and therefore,
the employer would no longer be liable for temporary total disability compensation.
Dr. Aymond found Thigpen reached MMI on May 25, 2000, and assigned 8% impairment
to the spine. Baker Homes continued to pay Thigpen temporary total disability
compensation until September 8, 2000, when the payments were stopped after Baker
Homes received videotaped evidence that Thigpen was able to work. The surveillance
records detailing the videotape indicate that on September 8, 2000, Thigpen
was seen lifting vinyl siding, using tools, climbing a ladder, and bending over
while working at a job site.
As we have determined the Commission correctly
found Thigpen reached MMI by May 25, 2000, it also correctly determined he was
then entitled to permanent partial disability and not temporary total disability.
The Commission awarded Thigpen 18% disability to the spine and required permanent
partial disability compensation of $27,396.36.
We find the decision denying Thigpen temporary total disability benefits
from May 25 to September 8, 2000 was supported by substantial evidence. In addition,
Baker Homes is entitled to a credit for the amount of temporary total disability
payments made to Thigpen during this period of time.
CONCLUSION
Most of the issues raised by Thigpen attempt to relitigate issues which were
abandoned after an adverse decision by the single commissioner and later the
Commission. Accordingly, these issues were not preserved for our review on
appeal. We find there is substantial evidence to support the Commissions findings
that the femoral head osteonecrosis was not compensable, that Thigpen had reached
MMI on May 25, 2000 and was not entitled to additional temporary total disability
benefits, and that Baker Homes was entitled to a credit for benefits paid between
May 25 and September 8, 2000. Accordingly, the decision of the circuit court
is
AFFIRMED.
ANDERSON, HUFF, and KITTREDGE, JJ., concur.
[1] This is also referred to in the record as avascular
necrosis or AVN.
[2] We note that Thigpen has failed to follow the South Carolina Appellate
Court Rules in his filings with this court. His brief is conclusory and contains
no supporting authority for his positions. See First Sav. Bank
v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994); Solomon v.
City Realty Co., 262 S.C. 198, 201, 203 S.E.2d 435, 436 (1974).