Wilson v. Charleston Cnty. Sch. Dist.

419 S.C. 442

798 S.E.2d 449

Sara Y. WILSON, Appellant,

v.CHARLESTON COUNTY SCHOOL DISTRICT, Respondent.

Appellate Case No. 2014-002596

Opinion No. 5475

Court of Appeals of South Carolina.

Heard November 3, 2016

Filed March 22, 2017

Rehearing Denied June 23, 2017

John S. Nichols and Blake A. Hewitt, both of Bluestein Nichols Thompson & Delgado, LLC, of Columbia; and Tiffany R. Spann-Wilder, of Spann Wilder Law, LLC, of North Charleston, for Appellant.

Stephen Lynwood Brown, Leslie Michelle Whitten, and Catherine Holland Chase, all of Young Clement Rivers, LLP, of Charleston, for Respondent.

MCDONALD, J.:

In this appeal from a circuit court order affirming the Appellate Panel of the South Carolina Workers' Compensation Commission (the Appellate Panel), Sara Wilson argues the Appellate Panel erred in (1) holding res judicata barred her change of condition claim because although she had experienced situational anxiety and depression in the past, she had not suffered from endogenous depression until after her work injury and subsequent back surgery and (2) determining her depression had to begin or worsen between January 2008 and January 2009 to be compensable. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

While employed as a data entry clerk for the Charleston County School District (School District), Wilson was a bystander to a fight between two male students on May 6, 2006.¹ The students inadvertently pushed into Wilson and pinned her against a marble countertop, which resulted in injuries to her neck and back.² Wilson filed a Form 50 to initiate her claim on August 9, 2006, and alleged permanent and total disability at an October 2, 2007 hearing. On November 29, 2007, the single commissioner found Wilson was not permanently and totally disabled but had a 45% disability to her back due to her cervical and lumbar injuries. The Form 19 reflecting the date of last payment of compensation was filed January 25, 2008, and an Amended Form 19 signed by Wilson was filed May 7, 2008.

On January 6, 2009, Wilson filed a Form 50 Notice of Claim alleging a change of condition, asserting her back injury was affecting her mental health. Wilson did not request a hearing at this time. On March 29, 2011, Wilson filed another Form 50 and requested a hearing on the change of condition claim.

The single commissioner heard Wilson's change of condition claim on June 29, 2011. At the hearing, Wilson indicated she was in so much pain she did not want to get up in the morning. She testified she did not go out with her friends anymore and felt helpless. She admitted to taking medication for anxiety—which began following the death of her husband—at the time of her initial hearing before the single commissioner. Still, Wilson explained that she did not experience significant depression until after the pain from her back injury worsened. In support of her claim, Wilson pointed out that it was not until May 2008, that her primary care physician, Dr. Robert Olivero, referred her for psychiatric treatment. The parties submitted the deposition transcript of Wilson's psychiatrist, Dr. Samuel H. Rosen, who testified that Wilson had suffered situational anxiety and depression off and on for years. His initial appointment note indicates:

Her past psychiatric history includes a depressive episode following the death of her husband in 2003. They had been happily married for [thirty-nine] years. Her treating physician at the time put her in the hospital for a couple of days and started her on Prozac [,] which either was helpful or time itself was helpful and she returned to full function. She had an ... episode that may have been anxiety related in 2005. The workup was negative and while in the office of [Dr.] Jervey she was tearful and upset. He placed her on Zoloft 100 mg.... After a few months, this was tapered to 25 mg and as noted above by the time of the incident at the school, she was once again back to her normal self.

There's no history of alcohol or drug abuse. No history of other mood disorders. No history of other psychiatric disorder.

Dr. Rosen explained that when he first saw Wilson on May 16, 2008, she did not have endogenous depression.³ However, his record from her May 23, 2011 appointment notes Wilson was "sleeping much more than normal" and "had poor concentration, lack of interest and motivation, decreased socialization and decreased energy." Dr. Rosen testified Wilson did have endogenous depression at the time of his June 24, 2011 deposition. He opined that although she previously suffered from some depression and anxiety, "the work injury either exacerbated or caused the new episode to begin." He interpreted Dr. Olivero's May 2008 psychiatric referral to indicate the primary care physician was no longer able to comfortably treat Wilson's depression—she needed treatment from a specialist.

Dr. Rosen also reviewed the vocational assessment of Dr. William Stewart from September 2007, which indicated Wilson was receiving medications and treatment for anxiety and depression related to her work injury. The following exchange occurred:

[School District]: Okay.... is it your opinion that Ms. Wilson had anxiety and depression from her work injury and required medication and treatment at least by September of 2007?

[Dr. Rosen]: Yeah, that the work injury was causing some depression and anxiety by—right.

[School District]: Okay. And then when she saw you in May of 2008, it wasn't endogenous, but it is now?

[Dr. Rosen]: It wasn't—right. It didn't appear to be endogenous then but that changed.

The single commissioner made several findings relating to jurisdiction, the statute of limitations, laches, and Wilson's change of condition claim regarding her psychological condition. Citing Estridge v. Joslyn Clark Controls, Inc. ,⁴ the single commissioner found Wilson "has proven a change of condition for her psychological issues" and concluded Wilson was entitled to ongoing psychiatric care and temporary total disability benefits.

The School District timely appealed and the Appellate Panel reversed, finding Wilson had not proven a change of condition relative to her psychological condition. The Appellate Panel further determined the doctrine of res judicata barred Wilson from asserting the psychological claim. The circuit court affirmed the Appellate Panel and subsequently denied Wilson's motion to alter or amend.

STANDARD OF REVIEW

The Administrative Procedures Act establishes the standard of review for decisions of the Appellate Panel. Lark v. Bi-Lo, Inc. , 276 S.C. 130, 134–35, 276 S.E.2d 304, 306 (1981). "The Appellate Panel is the ultimate fact finder in workers' compensation cases, and if its findings are supported by substantial evidence, it is not within our province to reverse those findings." Mungo v. Rental Unif. Serv. of Florence, Inc. , 383 S.C. 270, 279, 678 S.E.2d 825, 829–30 (Ct. App. 2009). This court can reverse or modify the decision of the Appellate Panel only if the substantial rights of the appellant 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." Transp. Ins. Co. & Flagstar Corp. v. S.C. Second Injury Fund , 389 S.C. 422, 427, 699 S.E.2d 687, 689–90 (2010) ; S.C. Code Ann. § 1–23–380(5)(d)–(e) (Supp. 2016).

LAW AND ANALYSIS

I. Res Judicata

Wilson argues the Appellate Panel erred in holding res judicata barred her change of condition claim because although she experienced situational anxiety and depression in the past, she did not suffer from endogenous depression until after her work injury and subsequent back surgery. We agree.

"Res judicata bars subsequent actions by the same parties when the claims arise out of the same transaction or occurrence that was the subject of a prior action between those parties." S.C. Pub. Interest Found. v. Greenville Cty. , 401 S.C. 377, 385, 737 S.E.2d 502, 506 (Ct. App. 2013) (quoting Judy v. Judy , 393 S.C. 160, 172, 712 S.E.2d 408, 414 (2011) ). "[T]he fundamental purpose of res judicata ... is to ensure that ‘no one should be twice sued for the same cause of action.’ " Judy , 393 S.C. at 173, 712 S.E.2d at 414 (quoting First Nat'l Bank of Greenville v. U.S. Fid. & Guar. Co. , 207 S.C. 15, 24, 35 S.E.2d 47, 56 (1945) ). "The doctrine requires three essential elements: (1) the judgment must be final, valid and on the merits; (2) the parties in the subsequent action must be identical to those in the first; and (3) the second action must involve matter properly included in the first action." Estridge , 325 S.C. at 539, 482 S.E.2d at 581 (quoting Owenby , 313 S.C. at 183, 437 S.E.2d at 131 ). "Under the doctrine of res judicata, ‘[a] litigant is barred from raising any issues which were adjudicated in the former suit and any issues which might have been raised in the former suit.’ " Plum Creek Dev. Co. v. City of Conway , 334 S.C. 30, 34, 512 S.E.2d 106, 109 (1999) (quoting Hilton Head Ctr. of S.C., Inc. v. Pub. Serv. Comm'n of S.C. , 294 S.C. 9, 11, 362 S.E.2d 176, 177 (1987) ).

Relying on Owenby v. Owens Corning Fiberglas ,⁵ and Krell v. South Carolina State Highway Department ,⁶ the Appellate Panel found Wilson could have raised a psychological injury claim at the October 2, 2007 hearing but did not. Therefore, the Appellate Panel reasoned res judicata barred Wilson's change of condition claim for psychological injury.

In Krell , our supreme court explained that "[i]f a review of a compensation agreement or settlement is sought on the change in the condition of the employee, a change in condition must be shown, and it must be causally connected with the original compensable accident." 237 S.C. at 588, 118 S.E.2d at 323.

In a reopening proceeding, the issue before the Commission is sharply restricted to the question of extent of improvement or worsening of the injury on which the original award was based. If [the] claimant sustained injuries at the time of the original action which he

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