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24915 - Tiller v. National Health Care Center

Shearouse Adv. Sh. No. 10
S.E. 2d



THE STATE OF SOUTH CAROLINA

In The Supreme Court



Elizabeth H. Tiller, Respondent,

v.

National Health Care

Center of Sumter, Petitioner.





ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Sumter County

H. Dean Hall, Judge

Opinion No. 24915

Heard January 21, 1999 - Filed March 8, 1999

AFFIRMED AS MODIFIED

John C. Land, III, and J. Calhoun Land, IV, of

Land, Parker & Reaves, of Manning, for

respondent.



George C. James, Jr., of Richardson & James, of

Sumter, for petitioner.





BURNETT, A.J.: In this workers' compensation case, a single

commissioner of the South Carolina Workers' Compensation Commission

(the Commission) concluded respondent had suffered a compensable back

injury and awarded temporary total benefits plus medicals. The full

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TILLER v. NATIONAL HEALTH CARE CENTER





Commission, the circuit court, and the Court of Appeals affirmed finding

substantial evidence supported the award. Tiller v. National Health Care

Center of Sumter, Op. No. 97-UP-343 (S.C. Ct. App. refiled Sept. 11,

1997). This Court granted National Health Care Center of Sumter's

(National Health) petition to review the Court of Appeals' opinion. We

affirm as modified.





FACTS



Respondent, a registered nurse, worked at National Health.

On December 18, 1994, respondent was dispensing medications to the

residents of National Health. As she pushed the medication cart from a

tile floor to a carpeted floor, the wheels unexpectedly jammed causing pain

in respondent's lower back and right leg. Respondent finished working

her shift; however, the next morning she was unable to get out of bed.

Respondent made an appointment to see Dr. Davis.





X-rays of respondent's back and legs were taken on December

20, 1994. These films were essentially normal; however, they did reveal

respondent's L5-SI disc was severely deteriorated and there was a milder

narrowing and spur formation at L3-L4. Because the pain persisted,

respondent was referred to Dr. Gee, an orthopaedist. By February 8,

1995, X-ray films showed the intervertebral space at L3-L4 was essentially

obliterated by what Dr. Gee diagnosed as discitis, a disc space infection

caused by E. coli bacteria. Respondent was hospitalized for approximately

one month.. On March 13, 1995, Dr. Edwards, an orthopaedist,

hospitalized respondent again and referred her to HealthSouth

Rehabilitation Center for physical therapy and antibiotic treatment.





The single commissioner found in favor of respondent and

awarded her temporary total weekly benefits. The commissioner found the

jamming of the medicine cart wheels aggravated respondent's pre-existing

condition of a degenerated disc at L5-S1. Further, the commissioner found

the discitis at L&IA, caused by either a stab wound or a urinary tract

infection, was aggravated by the injury of December 18, 1994.





National Health appealed arguing respondent failed to prove

her case by the preponderance of the evidence. The full Commission, the

circuit court, and the Court of Appeals affirmed the single commissioner's

decision.

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TILLER v. NATIONAL HEALTH CARE CENTER





ISSUE



Did the Court of Appeals fail to apply the correct standard of

proof regarding the sufficiency of medical evidence in this

medically complex workers' compensation case?





DISCUSSION



National Health argues in this medically complex case1

respondent failed to provide expert medical testimony about causation

required by Smith v. Michelin Tire Corp., 320 S.C. 296, 465 S.E.2d 9 (Ct.

App. 1995), and thus did not carry her burden of proof. Specifically,

National Health argues respondent failed to establish with expert medical

testimony, stated at least to a reasonable degree of medical certainty, that

the discitis was present prior to her accident on December 18, 1994.2 We


1Respondent does not deny this case is medically complex.



2 Both parties agree the accident did not actually cause the discitis.

Instead, respondent claims the accident aggravated or accelerated the

discitis. See Arnold v. Benjamin Booth Co., 257 S.C. 337, 185 S.E.2d~ 830

(1971) (where a previously existing condition or disease is aggravated by

injury or accident arising out of or in the course of employment and "his

results in disability, there is a compensable injury); Mullinax v. Winn-

Dixie Stores, Inc., 318 S.C. 431, 458 S.E.2d 76 (Ct. App. 1995).



The parties agree there are two possible sources of the E.coli

infection which caused respondent's discitis. One source could be a

urinary tract infection (UTI) which was diagnosed in February 1995 or

the infection could have originated from an incident in August 1994 when

a nursing home resident stabbed respondent with his fork. E. coli is

normally found in the digestive tract, and the resident's fork could have

been contaminated with digestive juices. National Health argues the

source of the infection determines whether the discitis existed at the time

of the accident. According to National Health, the discitis could only be

present prior to the accident if the fork stabbing incident was the source

of the infection. We disagree. The single commissioner found either the

fork stabbing incident or a UTI caused the discitis which was present on

December 18, 1994. Thus, regardless of the source of the infection, if the

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TILLER v. NATIONAL HEALTH CARE CENTER





disagree.





This Court must affirm the findings of fact made by the

Commission if they are supported by substantial evidence. Lark v. Bi-Lo.

Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). 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. Grayson v. Carter Rhoad Furniture, 317 S.C. 306, 454 S.E.2d

320 (1995). Where there is a conflict in the evidence, either by different

witnesses or in the testimony of the same witness, the findings of fact of

the Commission are conclusive. Glover v. Columbia Hospital of Richland

County, 236 S.C. 410, 114 S.E.2d 565 (1960). Indeed, the possibility of

drawing two inconsistent conclusions from the evidence does not prevent

an administrative agency's findings from being supported by substantial

evidence. Moore v. City of Easley , 322 S.C. 455, 472 S.E.2d 626 (1996).

An appellate court may not substitute its judgment for that of an agency

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. Rodney v. Michelin Tire Corp., 320

S.C. 515, 466 S.E.2d 357 (1996). Workers' compensation awards must not

be based on surmise, conjecture or speculation. Kennedy v. Williamsburg

County, 242 S.C. 477, 131 S.E.2d 512 (1963).





In Smith, the Court of Appeals held "if the claimant is

attempting to establish causation of a medically complex condition,

however, expert testimony is required."3 Id. at 298, 465 S.E.2d at 97.

Relying on Dr. Gee's February 1995 notes and Dr. Edwards' June 1995

letter, the Court of Appeals found respondent carried her burden of

presenting expert medical testimony as to causation and affirmed the


infection was present in the disc space on December 18, 1994, the

subsequent disability is compensable.



3 While the claimant in Smith did file a petition for writ of certiorari

with the Court, the claimant did not challenge the Court of Appeals'

statement that expert testimony was required to establish causation. The

only question raised in the petition was whether the Court of Appeals

erred in holding no expert testimony causally related petitioner's worsened

psychological condition to her neck injury. This Court denied the petition

for a writ of certiorari on July 24, 1996.

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TILLER v. NATIONAL HEALTH CARE CENTER





circuit court's order. Tiller, supra. Further, the Court of Appeals

concluded the doctors' testimony, combined with other evidence, provided

substantial evidence to support the award. Id.





The rule stated in Smith has some merit. In fact, this Court

suggested a similar rule in dicta. See Lorick v. S.C. Elec. & Gas Co., 245

S.C. 513, 141 S.E.2d 662 (1965) (stating medical causation should be

established with expert testimony in all but simple cases); Dennis v.

Williams Furniture Corp., 243 S.C. 53, 132 S.E.2d 1 (1963).





However, our case law does not support application of this rule

in workers' compensation cases. See Lorick, supra (the Court found

neither the expert testimony nor the lay testimony provided evidentiary

support of a causal connection); Dennis, supra (viewing the evidence in the

light most favorable to claimant, there was no competent evidence to

support an award). Instead, the Commission is given discretion to weigh

and consider all the evidence, both lay and expert, when deciding whether

causation has been established. See Ballenger v. Southern Worsted Corp.,

209 S.C. 463, 40 S.E.2d 681 (1946) (despite doctor's testimony that there

was not a connection with the accident that caused almost boiling dye to

fly in claimant's face and eyes and his subsequent eye problems, lay

testimony of claimant's good vision before the accident was sufficient to

support an award); Poston v. Southeastern Construction Co., 208 S.C. 35,

36 S.E.2d 858 (1946) (lay testimony that claimant's eyes became runny

and inflamed after some construction material blew into them and that

claimant lost vision in eyes subsequent to the accident was sufficient to

support an award, even though doctor testified vision loss was not related

to job injuries). Thus, while medical testimony is entitled to great respect,

the fact finder may disregard it if there is other competent evidence in the

record. Ballenger, supra. Indeed, "medical testimony should not be held

conclusive irrespective of other evidence. Ballenger, 209 at 467, 40 S~ E.2d

at 682-83.





Expert medical testimony is designed to aid the Commission in

coming to the correct conclusion; therefore, the Commission determine the

weight and credit to be given to the expert testimony. Poston, supra;

Hines v. Pacific Mills, 214 S.C. 125, 51 S.E.2d 383 (1949). Once admitted,

expert testimony is to be considered just like any other testimony. Smith

v. Southern Builders, 202 S.C. 88, 24 S.E.2d 109 (1943).



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TILLER v. NATIONAL HEALTH CARE CENTER





If a medical expert is unwilling to state with certainty a

connection between an accident and an injury, the "expression of a

cautious opinion" may support an award if there are facts outside the

medical testimony that also support an award. Grice v. Dickerson,

241 S.C. 225, 127 S.E.2d 722 (1962) (where medical testimony definite

recognized the possibility of a causal connection between the accident and

the rheumatoid arthritis but no medical testimony stated a connection!' to a

reasonable degree of medical certainty, the Commission had to weigh the

facts in light of the medical possibilities and draw inferences consistent

with the medical testimony in the record); Brewer v. Charleston

Shipbuilding & Drydock Co., 212 S.C. 43, 46 S.E.2d 173 (1948) (doctor's

testimony indicating a connection between claimant's accident and his

subsequent fungal infection, though not stated to a reasonable degree of

medical certainty, was sufficient to support an award when combined with

lay testimony about claimant's health before and after the accident,

despite the testimony of another doctor that stated there was no

connection). Thus, if medical expert testimony is not solely relied upon to

establish causation, the fact finder must look to the facts and

circumstances of the case. Grice, supra. Proof that a claimant sustained

an injury-may be established by circumstantial and direct evidence where

circumstances lead an unprejudiced mind to reasonably infer the injury

was caused by the accident. Grice, supra; Hewitt v. Cheraw Cotton Mills,

217 S.C. 90, 59 S.E.2d 712 (1950). However, such evidence need not reach

such a degree of certainty as to exclude every reasonable or possible

conclusion other than that reached by the Commission. Grice, supra.





Unlike the Court of Appeals, we decline to apply the standard

set out in Smith. Instead, in deciding whether substantial evidence

supports a finding of causation, we consider both the lay and expert

evidence.





Dr. Edwards testified b deposition that although he could

state with a reasonable degree of medical certainty that respondent had

discitis at L3-LA by February 10, 1995, he could not state with a

reasonable degree of medical certainty that respondent had discitis at L3-

LA on December 18, 1994, the date of the accident. Dr. Edwards noted

the majority of E. coli infections in the body stem from urinary tract

infections. When tests revealed respondent had a UTI in February 1905,

Dr. Edwards presumed the UTI was the cause of the discitis. However,

Dr. Edwards agreed it was possible the E. coli could have gone from the

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TILLER v. NATIONAL HEALTH CARE CENTER







fork stab wound to the disc and then to the urinary tract.4 Dr. Edwards

stated it was his opinion that most probably "something else" was going on

in respondent's spine at the time of the accident. Noting respondent had

no history of UTIs until February 1995, he said that given the chronology

of events, it made sense that there was some relationship between the

stab wound and discitis. However,, Dr. Edwards was unable to "state with

a reasonable degree of medical certainty about that [relationship]." Dr.

Edwards testified "I think basically by the time the diagnosis was made in

February, I think that [the discitis] had been there for some indeterminate

period of time and [there is] no way to know how I long it had been there,

or really, no way to know what exactly caused it."





In a letter addressed to respondent's attorney, Dr. Edwards

stated if discitis was present at UJA on December 18, 1994, then in his

opinion, based on a reasonable degree of medical certainty, the accident

aggravated the condition in her back. In addition, assuming there was no

evidence of a UTI, Dr. Edwards stated to a reasonable degree of medical

certainty the stab wound caused the discitis.





In February 1995, Dr. Gee stated "hematogenous spread from

stab wound caused the disc space infection. Studies may confirm or

contradict." In a letter dated May 30, 1995, contradicting his earlier

conclusion, Dr. Gee stated he believed it was more likely the UTI rather

than the fork-stabbing incident was the cause of the discitis. Dr. Gee

indicated he would defer to Dr. Ervin, a specialist in infectious diseases,

on this issue.





Dr. Ervin stated he could not relate the fork-stabbing incident

with the infection that caused the discitis. Further, Dr. Ervin states

"[s]ince she was already complaining of considerable malaise during

October and November, the injury in the nursing home back [sic] with her

back in December was either coincidental or reflective of the first symptom

of an evolving disc space infection-as time and destruction progressed."

(emphasis added). Dr. Ervin noted respondent did not have a history of


4 After the resident stabbed respondent, she was given a tetnus shot.

The tetanus shot caused an inflammation and she was prescribe Keflex,

an antibiotic. About a month later, respondent complained of a sore

throat, and she was again prescribed Keflex. Dr. Edwards testified Keflex

would tend to combat the spread and growth of E. coli bacteria.

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TILLER v. NATIONAL HEALTH CARE CENTER





UTIs and had no UTI symptoms.





Respondent testified she had not been feeling well during the

Fall of 1994. Dr. Perry confirmed respondent's malaise during this time

period. Within hours after the accident, respondent's back was causing

her great pain. While the pain diminished after she began wearing the

back brace prescribed by Dr. Gee, it did not disappear. Further, within

two months of the accident, the pain became unbearable even with the aid

of the brace. An X-ray taken on December 20, 1994, showed an

essentially normal L3-LA region. However, an X-ray taken less than two

months later showed the disc space surrounding this region was almost

completely destroyed.





In our opinion, the medical evidence and the lay testimony,

considered together, is sufficient to establish the discitis was present prior

to December 18, 1994. Thus, because substantial evidence supports the

award, we affirm.5



AFFIRMED AS MODIFIED.



FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur.




5 Because we affirm the award, there is no need to address National

Health's remaining issue.

p.30