Brown v. Peoplease Corp.

402 S.C. 476

741 S.E.2d 761

Thomas Lee BROWN, Appellant,

v. PEOPLEASE CORPORATION and Arch Insurance Company, c/o Gallagher Bassett Services, Inc., Respondents.Appellate Case No. 2011–196726.

No. 5082.

Court of Appeals of South Carolina.

Heard Oct. 16, 2012.

Decided Feb. 13, 2013.

Withdrawn, Substituted and Refiled March 27, 2013.

Preston F. McDaniel, of the McDaniel Law Firm, of Columbia, for Appellant.

Weston Adams, III, and Helen Faith Hiser, both of McAngus Goudelock & Courie, LLC, of Columbia, for Respondents.

SHORT, J.

In this workers' compensation case arising out of an automobile accident, Thomas Brown appeals, arguing: (1) the Appellate Panel of the South Carolina Workers' Compensation Commission (Appellate Panel) erred by (a) not granting him lifetime medical care for his lower back problems, (b) not raising the compensation rate to $591.73, and (c) not writing its order; and (2) the court of appeals erred by denying Brown's motion for leave to present additional evidence to the Workers' Compensation Commission (the Commission) pursuant to section 1–23–380(3) of the South Carolina Code (Supp. 2012). We affirm.

FACTS

On May 2, 2008, a passenger vehicle collided with the truck Brown was driving. At the time of the accident, Peoplease Corporation employed Brown to drive a truck for Bulldog Trucking, and Brown had been working for the company for approximately 16 weeks. After the accident, doctors treated Brown for pain in the cervical region of his neck and performed two surgeries on his neck. Brown's diabetes also worsened following the accident, and he is now insulin dependent.

Brown filed a Form 50 on July 13, 2010, seeking an award for permanent and total disability benefits with lifetime medical care for his neck, back, and arm pain from the accident. Peoplease Corporation and Arch Insurance Company, c/o Gallagher Bassett Services, Inc., (collectively, Respondents) admitted Brown sustained a compensable injury by accident arising out of and in the course of his employment; however, they denied Brown sustained injuries to his lower back and arms.

On October 22, 2010, the single commissioner heard the matter. In his order, the commissioner noted the only issues before him were a determination of Brown's entitlement to a disability award and the resulting average weekly wage and compensation rate to be applied. He determined Brown is permanently and totally disabled based on the combination of his cervical injury and the aggravation of his underlying diabetes; however, he found no specific medical report tied Brown's lumbar (lower back) problems to his injury at work. Therefore, he ordered Respondents to provide Brown with lifetime, causally-related medical treatment for his cervical spine and diabetes. The commissioner also found exceptional circumstances existed to determine a fair and reasonable average weekly wage and compensation rate. Thus, he calculated the average weekly wage based on the salary and income a top producer for Bulldog would make per year. This amounted to $38,500 per year, resulting in an average weekly wage of $740.38 and a compensation rate of $493.84.

Brown appealed to the Appellate Panel, arguing the commissioner erred in not awarding him (1) lifetime medical care for his lower back and legs and (2) a higher average weekly wage and compensation rate. The Appellate Panel heard the matter on March 21, 2011. Thereafter, it affirmed the single commissioner's factual findings and conclusions of law. 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, 483, 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.2012). 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. “[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). “Where there are no disputed facts, the question of whether an accident is compensable is a question of law.” Grant v. Grant Textiles, 372 S.C. 196, 201, 641 S.E.2d 869, 872 (2007).

LAW/ANALYSISI. Lifetime Medical Care

Brown argues the Appellate Panel erred in denying him lifetime medical care for his lower back problems. We disagree.

This court must affirm the Appellate Panel's findings of fact if they are supported by substantial evidence. Tiller v. Nat'l Health Care Ctr. of Sumter, 334 S.C. 333, 338, 513 S.E.2d 843, 845 (1999). “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. “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.” Id. This court may not substitute its judgment for that of the agency's as to the weight of the evidence on questions of fact unless the agency's findings are clearly erroneous in view of the reliable, probative, and substantial evidence on the record. Id. at 339, 513 S.E.2d at 845. When determining if a claimant has established causation, the Appellate Panel has discretion to weigh and consider all the evidence, both lay and expert. Potter v. Spartanburg Sch. Dist. 7, 395 S.C. 17, 23, 716 S.E.2d 123, 126 (Ct.App.2011). “Thus, while medical testimony is entitled to great respect, the fact finder may disregard it if other competent evidence is presented.” Id. The Appellate Panel has the final determination of witness credibility and the weight to be accorded the evidence. Id.

In his order, the commissioner stated that McLeod v. Piggly Wiggly Carolina Co., 280 S.C. 466, 313 S.E.2d 38 (Ct.App.1984), “calls the back a much more complicated area of the body and calls for expert medical opinions in those kinds of cases.” See id. at 471, 313 S.E.2d at 41 (noting the back is “a much more complicated area of the body,” which requires “a higher degree of expertise than was presented to determine the degree of ... loss of use”). He then found Brown presented “no specific medical report that ties the lumbar [lower back] problems to the injury at work.”

Brown argues the commissioner overlooked or disregarded the undisputed evidence in the record that his lower back problems were caused by and stemmed from the accident. In support of his argument, Brown submits that on July 6, 2008, two months after the accident, he went to the emergency room complaining of lower back pain. The report notes, “History obtained from patient.” The admission notes state Brown indicated he was in an automobile accident two months prior to when he developed the pain, and he does a lot of heavy lifting at work, which he thinks exacerbated the pain. However, he denied any back pain when a nurse assessed him. Brown's back was x-rayed, and the hospital discharged him with a lumbosacral strain and prescribed him Percocet, a drug for pain.

On July 10, 2008, Brown saw Dr. Abu–Ata, who noted Brown told him he was in a car accident two months prior, and afterwards, he started having neck and back pain. Brown told Dr. Abu–Ata “he had x-rays for his spine that were negative.” Dr. Abu–Ata “did a nerve conduction study/EMG for him that was normal and that showed no evidence of cervical or lumbosacral peri-radiculopathy.” He then scheduled Brown for a magnetic resonance imaging (MRI) of his cervical spine and lower back. The lower back MRI revealed “mild to moderate degenerative disc disease at L3–4.” However, the cervical spine MRI indicated Brown had “moderately severe degenerative disc/ osteophytedisease of the cervical spine,” and Dr. Abu–Ata gave him an emergency referral to Dr. Scott Boyd, a neurosurgeon.

On August 4, 2008, Dr. Boyd determined Brown had cervical stenosis and scheduled him for an anterior cervical discectomy and fusion on September 2, 2008. In February 2010, Dr. Boyd performed a second cervical fusion on Brown. In relation to his claim for workers' compensation, Brown sent Dr. Boyd a letter that stated:

Is it your opinion to a reasonable degree of medical certainty that the problems that [Brown] has with his neck and back and his need for medical care either stem directly from the automobile accident of May 2, 2008[,] or the accident aggravated and caused to become symptomatic a pre-existing conditions [sic] in his neck and back which resulted in the need for medical care?

Dr. Boyd checked “yes” and signed the letter. However, Dr. Boyd also signed a note excusing Brown from work, which stated: “Mr. Brown is having back surgery 09/02/08. He will be out of work until approximately 3 weeks after surgery.” (Emphasis added.) Brown's first cervical fusion was on September 2, 2008. Therefore, Respondents contend Dr. Boyd interchangeably used the word “back” to refer to Brown's “neck.” Further, Dr. Leonard Forrest did an independent medical evaluation of Brown, and although he notes Brown told him “his neck-related symptoms have always been worse than the low back related symptoms,” he stated he did “not see any studies of a...