THE STATE OF SOUTH CAROLINA
In The Supreme Court
Elizabeth H. Tiller, Respondent,
National Health Care
Center of Sumter, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF
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
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
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.
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
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?
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
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
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
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.
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
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).
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
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
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
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.
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
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.
Health's remaining issue.