Beckman v. Sysco Columbia, LLC

408 S.C. 501

759 S.E.2d 750

Neal BECKMAN, Employee, Appellant,

v. SYSCO COLUMBIA, LLC, Employer, and Gallagher Bassett Services, Inc., Carrier, Respondents.Appellate Case No. 2013–000005.

No. 5205.

Court of Appeals of South Carolina.

Heard Feb. 20, 2014.

Decided March 19, 2014.

Withdrawn, Substituted and Refiled July 9, 2014.

Rehearing Denied July 9, 2014.

Frederick W. Riesen, Jr., of Riesen Law Firm, LLP, of N. Charleston, and Stephen Benjamin Samuels, of Samuels Law Firm, LLC, of Columbia, for Appellant.

Joseph Hubert Wood, III, and Kathryn Fiehrer Walton, both of Wood Law Group, LLC, of Charleston, for Respondents.

SHORT, J.

In this appeal from the Workers' Compensation Commission (Commission), Neal Beckman argues the Appellate Panel of the Workers' Compensation Commission (Appellate Panel) erred in finding he was limited to a disability award for his back as a scheduled member because the evidence showed he should have been awarded disability under the loss of earning capacity statute. We reverse and remand.

FACTS

Beckman, a delivery driver, was injured on March 25, 2010, while loading a hand truck for his employer, Sysco Columbia, LLC (Sysco). Beckman alleged in his Workers' Compensation Form 50 that he pulled muscles in his back, injuring his back, buttocks, both legs, and right foot. Sysco admitted Beckman's back injury, but denied his other injuries. Following the accident, Sysco provided Beckman with authorized medical care and treatment, primarily with Dr. Timothy Zgleszewski. Beckman also underwent an independent medical evaluation with Dr. Scott Boyd.

On March 8, 2012, Sysco filed a Form 21 seeking to terminate temporary compensation and have an award made for permanent disability compensation. Sysco asserted Beckman reached a level of maximum medical improvement on May 2, 2011, per a note by Dr. Zgleszewski, or alternatively, by February 27, 2012, per a note by Dr. Boyd.

During the hearing before the single commissioner, Sysco asserted Beckman was entitled to permanent disability pursuant to section 42–9–30(21) of the South Carolina Code. Beckman asserted any permanency award should be based on a loss of earnings under section 42–9–20.¹ In her order, the single commissioner found Beckman “sustained a 35% permanent loss of use of the spine (encompassing [Beckman's] entire spine and including any alleged radiculitis) pursuant to § 42–9–30(21).” The single commissioner further found Beckman's treating physician assigned a 15% combined impairment rating for Beckman's back and sacroiliac joint (SI joint), and the independent medical examiner assigned an 8% impairment rating. However, the single commissioner also found the greater weight of the evidence showed only Beckman's back was affected by the March 25, 2010 admitted injury by accident. The commissioner ordered Sysco to pay a lump sum payment to Beckman representing compensation for 35% permanent loss of use to the back pursuant to § 42–9–30(21), with Sysco being entitled to take credit for all temporary disability compensation paid to Beckman for the period after February 27, 2012.

Beckman filed a Form 30 notice of appeal. After a hearing, the Appellate Panel issued an order affirming the decision of the single commissioner in full. 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. Carolinas Recycling Grp. v. S.C. Second Injury Fund, 398 S.C. 480, 482, 730 S.E.2d 324, 326 (Ct.App.2012). 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.” SeeS.C.Code Ann. § 1–23–380(5)(e) (Supp.2013). “It is not within our province to reverse findings of the Appellate Panel which are supported by substantial evidence.” Hall v. United Rentals, Inc., 371 S.C. 69, 79–80, 636 S.E.2d 876, 882 (Ct.App.2006). 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 the Appellate Panel reached. Lark v. Bi–Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). “[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

Beckman argues the Appellate Panel erred in finding he was limited to a disability award for his back as a scheduled member because the evidence showed he should have been awarded disability under the loss of earning capacity statute in section 42–9–20 of the South Carolina Code. We agree.

“[T]he guiding principle undergirding our workers' compensation system [is] that the Act is to be liberally construed in favor of the claimant.” Hutson v. S.C. State Ports Auth., 399 S.C. 381, 387, 732 S.E.2d 500, 503 (2012). In a workers' compensation case, the extent of impairment “need not be shown with mathematical precision.” Linen v. Ruscon Constr. Co., 286 S.C. 67, 68, 332 S.E.2d 211, 212 (1985). However, an award “may not rest on surmise, conjecture, or speculation; it must be founded on evidence of sufficient substance to afford it a reasonable basis.” Id.

Dr. Zgleszewski assigned a 10% medical impairment to Beckman's back and spine, and a 5% medical impairment to his SI joint, for a combined 15% impairment rating. Dr. Zgleszewski also stated Beckman would need two to three SI joint injections over the following two years. Dr. Boyd assigned Beckman with an impairment rating of 8%. The Appellate Panel's order adopted the single commissioner's finding that Beckman's treating physician assigned a 15% combined impairment rating for Beckman's back and SI joint. The Appellate Panel also adopted the single commissioner's finding that the greater weight of the evidence showed only Beckman's back was affected by the March 25, 2010 admitted injury by accident. Furthermore, the Appellate Panel agreed with the single commissioner's finding that there was no objective evidence of radiculopathy, and Dr. Zgleszewski diagnosed radiculitis based on Beckman's subjective complaints.

Beckman argues the Appellate Panel erred in applying the “two body-part rule” set forth in Singleton v. Young Lumber Co., 236 S.C. 454, 114 S.E.2d 837 (1960). In Singleton, Singleton suffered a sole injury to a scheduled member, his leg, and no other condition was claimed to have contributed to his disability. Id. at 471, 114 S.E.2d at 845. Singleton argued the injury to his leg was so disabling that he should be found totally disabled. Id. at 468, 114 S.E.2d at 844. The court held that because the injury was confined to a scheduled member, compensation must be determined under the scheduled injury statute as provided by the legislature. Id. at 473, 114 S.E.2d at 846. Thus, an impairment involving only a scheduled member is compensated under the scheduled injury statute and not the general disability statute. Id. The court stated that “[t]o obtain compensation in addition to that scheduled for the injured member, [Singleton] must show that some other part of his body is affected.” Id. at 471, 114 S.E.2d at 845.

In Wigfall v. Tideland Utilities, Inc., 354 S.C. 100, 106–07, 580 S.E.2d 100, 103 (2003) (citation omitted), our supreme court summarized its holding in Singleton:

Singleton stands for the exclusive rule that a claimant with one scheduled injury is limited to the recovery under § 42–9–30 alone. The case also stands for the rule that an individual is not limited to scheduled benefits under § 42–9–30 if he can show additional injuries beyond a lone scheduled injury. This principle recognizes “the common-sense fact that, when two or more scheduled injuries [or a scheduled and non-scheduled injury] occur together, the disabling effect may be far greater than the arithmetical total of the schedule allowances added together.”

Similarly, in Simmons v. City of Charleston, 349 S.C. 64, 76, 562 S.E.2d 476, 482 (Ct.App.2002), this court affirmed the Workers' Compensation Commission's finding that the claimant was entitled to proceed under the general disability statute, as substantial evidence was presented that the claimant suffered additional complications to another part of the body, other than a scheduled member. “The policy behind allowing a claimant to proceed under the general disability § 42–9–10 and § 42–9–20 allows for a claimant whose injury, while falling under the scheduled member section, nevertheless affects other parts of the body and warrants providing the claimant with the opportunity to establish a disability greater than the presumptive disability provided for under the scheduled member section.” Id. (quoting Brown v. Owen Steel Co., 316 S.C. 278, 280, 450 S.E.2d 57, 58 (Ct.App.1994)). “All that is required is that the injury to a scheduled member also affect another body part.” Id.

Beckman asserts that although the primary injury was to his back, he also injured his SI joint, and he suffered radiculopathy in his left leg caused by the back injury. He argues that because the evidence shows his injury is not limited to his back, he is entitled to proceed under the loss of earnings capacity statute found in section 42–9–20 of the South Carolina Code. Section 42–9–20 provides:

Except as otherwise provided in § 42–9–30, when the incapacity for work resulting from the injury is partial, the employer shall pay, or cause to be paid, as provided in this chapter, to the injured employee during such disability a weekly compensation...