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25173 - Shealy v. Aiken County
Shealy v. Aiken County


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


THE STATE OF SOUTH CAROLINA

In The Supreme Court



Albert B. Shealy,



Petitioner,



v.



Aiken County,

Employer/Self-Insured,



Respondent.



ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS



Appeal From Aiken County

Rodney A. Peeples, Circuit Court Judge



Opinion No. 25173

Heard June 21, 2000 - Filed July 24, 2000



AFFIRMED AS MODIFIED



Preston F. McDaniel, of McDaniel Law Firm, of

Columbia, for petitioner.



F. Earl Ellis, Jr., and Daniel W. Hayes, both of Ellis,

Lawhorne & Sims, P.A., of Columbia, for respondent.





CHIEF JUSTICE TOAL: Albert B. Shealy ("Shealy") appeals the

Court of Appeals' decision denying workers' compensation benefits for his

psychological injuries allegedly caused by conditions of his employment as a

"deep cover" undercover narcotics agent for the Aiken County Sheriffs



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Shealy v. Aiken County





Department ("Sheriff's Department").







FACTS/PROCEDURAL BACKGROUND



From 1981 to 1990, Shealy worked as a Lexington County deputy sheriff.

Shealy developed depression and an alcohol problem that ultimately led to his

departure from the Lexington County Sheriff's Department in May 1990. He

received treatment for these problems and was alcohol free in November 1990

when he applied for a position in the Sheriffs Department. In November 1990,

Aiken County Sheriff Carroll Heath, who was aware of Shealy's alcohol problem,

hired Shealy to work as a "deep cover" undercover narcotics agent.









The Sheriff's Department hires deep cover agents to go to known drug

locations, typically bars and nightclubs, to befriend drug dealers and other

criminals in order to gain information, intelligence, and make drug buys, which

are handed over to the police as evidence. The goal is for the deep cover agent

to buy as much drugs as he can from the dealers and then slowly disappear.

Deep cover work is extremely stressful and differs from regular police

undercover work because the agent does not wear a wire, is not operating under

police surveillance, does not have access to police back up, and does not carry

police identification. According to Shealy, the stress involved with deep cover

work was "extraordinary, it was more than I ever could imagine."







In August 1992, the Sheriffs Department assigned Shealy to infiltrate

Rambler's Bar and Grill in Aiken because the employees and management were

accused of illegal drug trafficking. Another deep cover agent, Stacey Coleman

("Coleman"), informed Shealy that Tony Kneese ("Kneese"), one of the alleged

drug dealers, suspected Shealy was an undercover officer. According to

Coleman, Kneese planned on taking Shealy "fishing." "Fishing" is a slang term

that means killing someone and then disposing of the body in a pond or lake.

According to Coleman's testimony:



The people were very well capable of committing a crime of murder.

I know there were times he and I both purchased drugs from them

and they were armed when we purchased drugs from them. Yes,

they were very well capable of committing [sic] such as that.







As a way to prove to Kneese that he was not a police officer, Shealy handed

Kneese his pistol and told him to go ahead and kill him if he thought Shealy was

a cop. Although Kneese did not harm Shealy, Shealy still felt he was under a

constant death threat after the confrontation. Shealy was also unable to work



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Shealy v. Aiken County





effectively as a deep cover agent after the confrontation with Kneese. His

condition worsened after the confrontation and he began seeing a psychiatrist,

Dr. Carol O. Kinard.







Shortly after the encounter with Kneese, a new sheriff was elected for

Aiken County. On Christmas Eve 1992, a representative from the Sheriff's

Department informed Shealy that he would be terminated because the new

sheriff intended to eliminate the deep cover narcotics program. According to

Shealy, his dismissal was extremely stressful because he was still under death

threats and he would lose both his permit to carry a weapon and the protection

of law enforcement. On December 30, 1992, Shealy was admitted to Baptist

Medical Center for depression, suicidal thoughts, post-traumatic stress disorder,

and acute alcoholism.







Shealy has worked only sporadically since his release from Baptist Medical

Center. He has been sober since July 1994, when he rejoined Alcoholics

Anonymous. Dr. Kinard treated Shealy for several years and determined Shealy

met the criteria for major depression recurrent, post- traumatic stress disorder,

anxiety, alcoholism, and panic disorder with agoraphobia. In August 1995, Dr.

Kinard indicated Shealy was unable to work in any gainful employment and

would be unlikely to work in the foreseeable future. Dr. Scott, in performing an

independent evaluation for the Social Security Administration, concurred in the

diagnosis.







Although Shealy's job as a deep cover agent contributed to his medical

conditions, Shealy admits to several other stressors in his life that may have

contributed to his illness. In 1992, during the same time as the death threats

and his termination from the Sheriff's Department, Shealy was also seeking a

divorce from his second wife on the grounds of her infidelity, was in a bitter

custody dispute over his son, and was declaring bankruptcy. Relying on these

non-job stressors, the Full Commission made a factual determination that

Shealy failed to meet his burden of proving that the conditions of his

employment as a deep cover agent proximately cause his psychological injuries.









The Single Commissioner awarded Shealy benefits for aggravation of his

preexisting alcoholism and psychological injury resulting from the extraordinary

conditions of his employment. The Full Commission reversed on October 15,

1996. After a remand to the Full Commission for specific findings of facts and

conclusions of law, the circuit court affirmed the Full Commission's decision.

The circuit court found Shealy's job conditions were usual to his employment.

Moreover, the circuit court held Shealy had failed to prove his psychological



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Shealy v. Aiken County





injuries were caused by unusual or extraordinary conditions of employment. The

Court of Appeals affirmed the circuit court's order. Shealy v. Aiken County, Op.

No. 98-UP-573 (S.C. Ct. App. filed December 16, 1998).







The following issues are before this Court on appeal:



1. Did the Court of Appeals err in holding the "unusual or

extraordinary conditions of employment" standard is determined by

reference to Shealy's particular employment and not to employment

in general?



2. Did the Court of Appeals err in finding Shealy's allegation of error

in the reversal of the award for the aggravation of his preexisting

alcoholism was not preserved for review?



3. Did the Court of Appeals err in holding that the issue of whether

medical evidence had to be presented to prove unusual or

extraordinary conditions of employment was not preserved for

review?







LAW/ANALYSIS



The Administrative Procedures Act ("APA") governs this Court's review of

the Full Commission's decisions. See Lark v. Bi-Lo, Inc. 276 S.C.130, 276 S.E.2d

304 (1981). We can reverse or modify the Full Commission's decision in this case

only if Shealy'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. See S.C. Code Ann. §

1-23-380(A)(6)(d), (e) (Supp. 1997). Substantial evidence is not a mere scintilla

of evidence nor evidence viewed from one side, but such evidence, when the

whole record is considered, as would allow reasonable minds to reach the

conclusion the Full Commission reached. Waters v. South Carolina Land

Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996).







In workers' compensation cases, the Full Commission is the ultimate fact

finder. Hunter v. Patrick Constr. Co., 289 S.C. 46, 344 S.E.2d 613 (1986). The

final determination of witness credibility and the weight to be accorded evidence

is reserved to the Full Commission. Ford v. Allied Chem. Co., 252 S.C. 561,16 7

S.E.2d 564 (1969). It is not the task of this Court to weigh the evidence as found

by the Full Commission. Ellis v. Spartan Mills, 276 S.C. 216, 277 S.E.2d 590

(1981).



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Shealy v. Aiken County





I. Unusual or Extraordinary Conditions of Employment



Shealy argues that under the standard for compensability that applies to

mental-mental injuries, 1 the phrase "unusual or extraordinary conditions in

employment" refers to conditions of employment in general, not to conditions

extraordinary to the particular job in which the injury occurs. The Court of

Appeals held compensability should be determined by unusual or extraordinary

conditions of a complainant's employment. We agree with the Court of Appeals.

However, we find the combination of death threats, gun incidents with violent

drug dealers, high tension confrontations, fear of being uncovered, and loss of

security as a police officer constitutes unusual or extraordinary conditions of

employment when they occur over several months.







In determining whether a work-related injury is compensable, the

Workers' Compensation Act is liberally construed toward the end of providing

coverage rather than noncoverage in order to further the beneficial purposes for

which it was designed. Dickert v. Metropolitan Life Ins., Co., 306 S.C. 311, 411

S.E.2d 672 (Ct. App. 1991). Any reasonable doubt as to the construction of the

Act will be resolved in favor of coverage. Mauldin v. Dyna-Color/Jack Rabbit,

308 S.C. 18, 416 S.E.2d 639 (1992). A compensable injury under the Workers'

Compensation Act is defined by S.C. Code Ann. § 42-1-160 (1985), 2 which states


1 A mental-mental injury is a purely mental injury resulting from

emotional stimuli. See Stokes v. First Nat'l Bank, 306 S.C. 46, 410 S.E.2d 248

(1991).







2 On June 18, 1996, section 42-1-160 was amended. Shealy's injury

occurred before the effective date of the amendment. The following two

sections were added to the original statute:



Stress arising out of and in the course of employment

unaccompanied by physical injury and resulting in mental illness or

injury is not a personal injury unless it is established that the

stressful employment conditions causing the mental injury were

extraordinary and unusual in comparison to the normal conditions

of the employment.



Stress arising out of and in the course of employment

unaccompanied by physical injury is not considered compensable if (2 continued...)





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Shealy v. Aiken County





in part:



"Injury" and "personal injury" shall mean only injury by accident

arising out of and in the course of the employment and shall not

include a disease in any form, except when it results naturally and

unavoidably from the accident ....







Mental or nervous disorders are compensable accidental injuries under the

statute when "the emotional stimuli or stressors are incident to or arise from

unusual or extraordinary conditions of employment." Powell v. Vulcan

Materials, Co., 299 S.C. 325, 384 S.E.2d 725 (1989). In Powell, this Court held

that courts should use the "heart attack standard" to determine when a mental

mental injury is compensable. A heart attack suffered by an employee

constitutes a compensable accident if it is induced by unexpected strain or

overexertion in the performance of his duties of employment, or by unusual and

extraordinary conditions in employment. Bridges v. Housing Auth., City of

Charleston, 278 S.C. 342, 295 S.E.2d 872 (1982). However, if a heart attack

results as a consequence of ordinary exertion that is required in performance of

employment duties in an ordinary and usual manner, and without any untoward

event, it is not compensable as an accident. Fulmer v. South Carolina Elec. &

Gas Co., 306 S.C. 34, 410 S.E.2d 25 (Ct. App. 1991). According to this Court in

Powell, the heart attack standard applies to mental-mental injuries:



Mental or nervous disorders resulting from either physical or

emotional stimuli are equally compensable provided the emotional

stimuli or stressors are incident to or arise from unusual or

extraordinary conditions of employment.



Powell, 299 S.C. at 327, 384 S.E.2d at 726; see also Stokes v. First Natl Bank,

306 S.C. 46, 410 S.E.2d 248 (1991).







This Court has never applied an obejective standard of reasonable




(2 continued...) it results from any event or series of events which is incidental to

normal employer/employee relations including, but not limited to,

personnel actions by the employer such as . . . terminations, except

when these actions are taken in an extraordinary and unusual

manner.



S.C. Code Ann. § 42-1-160 (Supp. 1997).



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Shealy v. Aiken County







employment when considering whether a worker was exposed to unusual or

extraordinary work conditions, but rather has compared the conditions to the

worker's particular employment. For example, in Powell this Court held that

"Powell's altercation with his supervisor was an unusual and extraordinary

condition of his employment resulting in a compensable accidental injury."

Powell, 299 S.C. at 328, 384 S.E.2d at 727 (emphasis added). All the factors

considered by this Court in Powell were based upon the claimant's particular

employment, not as compared to objective examples of employment in general. 3







Various states have applied different standards in determining whether

a condition is unusual or extraordinary. Professor Arthur Larson identified three

comparisons used by courts across the country that have specifically addressed

this issue: (1) compare whether the work conditions were unusual to the

employee's normal strains; (2) compare whether the work conditions were

unusual compared to the strains of employment in general; or (3) compare

whether the work conditions were unusual as compared to the everyday wear

and tear of non-employment life. 2 Arthur Larson & Lex K. Larson, Larson's

Workers' Compensation Law § 44.05(4)(d)(i) (1999). According to Professor




3 Accord Stokes v. First Nat'l Bank, 306 S.C. 46, 410 S.E.2d 248 (1991)

(holding the prolonged increase in Stokes' work hours and his additional job

responsibilities, as compared to his work hours and responsibilities prior to the

merger, constituted unusual and extraordinary conditions of employment);

Bridges v. Housing Auth., City of Charleston, 278 S.C. 342, 295 S.E.2d. 872 (1982)

(holding there was no showing of unusual or extraordinary conditions of

employment where security patrolman engaged in an investigation of the type

included in his duties during normal working hours and in his regular patrol

area); Black v. Barnwell County, 243 S.C . 531,134 S.E.2d 753 (1964) ("Whether

climbing the stairs by the deceased on the occasion in question constituted an

unusual or extraordinary exertion must be determined in the light of his usual

and normal duties as jailor of Barnwell County."); Fulmer v. South Carolina

Elec. & Gas Co. , 306 S.C. 34, 410 S.E.2d 25 (Ct. App. 1991) (holding automobile

mechanic's heart attack as a result of being unable to get a needed part from the

parts handler was not compensable because it was not unusual or extraordinary

for the mechanic to have difficulty in obtaining parts); DeBruhl v. Kershaw

County Sheriff's Dept, 303 S.C. 20, 397 S.E.2d 782 (Ct. App. 1990) (holding there

was no showing of unusual or extraordinary conditions of employment where the

investigation of a night fatality was not unusual or unexpected for the Sheriff of

Kershaw County).



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Shealy v. Aiken County





Larson, the most familiar application appears to be a comparison to the

claimant's particular employment:



It is quite possible that in many of the cases merely using the

undefined term `unusual' the courts intended to apply the familiar

comparison with the employee's own normal working conditions.

This is by far the most familiar meaning in the heart cases. At the

same time, quite possibly many of the courts simply did not address

their minds to the question of which comparison they were making.



Larson, § 44.05 (4)(d)(i). Larson's analysis further supports the precedent

established by South Carolina case law in applying the standard based upon the

employment of a particular claimant.







Although we agree with the standard applied by the Court of Appeals, we

find there is substantial evidence in the record that indicates Shealy's work

conditions during 1992 were unusual and extraordinary. Over several months

in 1992, Shealy experienced death threats, gun incidents with violent drug

dealers, high tension confrontations, fear of losing his cover, loss of security as

a police officer, and loss of his insurance. Knowing that a specific plot has been

developed for one's murder by people who are willing and able to commit such

a crime is certainly extraordinary. Furthermore, to have knowledge of an

imminent death threat and then be stripped of the protection of the Sheriffs

Department constitutes an extraordinary condition of employment.







This case is analogous to Kearse v. South Carolina Wildlife Resources

Dep't, 236 S.C. 540, 115 S.E.2d 183 (1960), where we held the activities of a

game warden during the week or two preceding his stroke were sufficient to

reasonably support a conclusion that the work conditions were unusual or

extraordinary. Although some of the activities were of the nature usually

performed by the game warden, the combination of late hours, frigid weather,

extreme exertion, and rough terrain, which continued uninterrupted over an

unusual length of time, constituted unusual or extraordinary conditions.

Likewise, gun incidents, death threats, high tension confrontations, and loss of

police security may be typical of a deep cover narcotics agent, but the

combination of these events over several months is extraordinary.







In order for Shealy to recover workers' compensation benefits, he must

prove both: (1) that he was exposed to unusual and extraordinary conditions in

his employment; and (2) that these unusual and extraordinary conditions were

the proximate cause of his mental breakdown. See generally Powell, supra;



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Shealy v. Aiken County





Gambrell v. Burleson, 252 S.C. 98, 165 S.E.2d 622 (1969) (must prove causal

connection between injury and subsequent condition in workers' compensation

cases). The Full Commission made the factual determination that Shealy failed

to meet the burden of proof because outside stressors unrelated to his work

contributed to or caused his injuries. Shealy was suffering from financial

problems that led to bankruptcy; marital problems, including a divorce and a

custody battle over his son; memories of a gun fight and shooting a man during

a previous employment; and the constant stress of fighting alcoholism. Based

on these non-job stressors, we conclude there is substantial evidence in the

record to support the Full Commission's finding.







II. Preservation Issues



Shealy argues the Full Commission erred in reversing the award for

aggravation of his preexisting alcoholism. The Court of Appeals held that

because the issue was not ruled on by the circuit court and no Rule 59(e), SCRCP

motion was made, the issue was not preserved for appellate review. We agree.







The order of the trial court does not address whether the work conditions

aggravated Shealy's alcoholism. In his order the trial judge addressed: (1)

whether Shealy is entitled to compensation under the heart attack exception

outlined in Holley v. Owens Corning Fiberglass Corp., 301 S.C. 519, 392 S.E.2d

804 (Ct. App. 1990); (2) whether the record contained substantial evidence that

the work conditions were unusual to Shealy's employment; and (3) whether

Shealy proved his work conditions were the proximate cause of his injuries. The

trial judge generally stated: "Inasmuch as it does not appear that the

Commission made any errors of law, and it does appear that there is substantial

evidence to support its findings, the order of the South Carolina Workers'

Compensation Commission is affirmed."









We agree with the Court of Appeals that the issue is not preserved

because: (1) the trial judge's general ruling is insufficient to preserve the specific

issue for appellate review; and (2) Shealy did not move to alter or amend the

judgment pursuant to Rule 59(e), SCRCP. See generally Jackson v. Speed, 326

S.C. 289, 486 S.E.2d 750 (1997) (holding issue not preserved for appellate review

where appellants failed to object to the cost issue either at the hearing or in their

motion to alter or amend the order); Noisette v. Ismail, 304 S.C. 56, 403 S.E.2d

122 (1991) (holding that where a trial court does not explicitly rule on an

argument raised, and appellant makes no Rule 59(e) motion to obtain a ruling,

the appellate court may not address the issue).



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Shealy v. Aiken County





Shealy also argues the Commission erred in holding that medical evidence

must be presented to show unusual or extraordinary conditions of employment.

This issue was not preserved for appellate review because it was not ruled upon

by the trial court and no Rule 59(e), SCRCP motion was made. See Jackson v.

Speed, supra; Noisette v. Ismail, supra. Furthermore, as noted by the Court of

Appeals, the Commission did not hold that medical evidence was necessary to

prove unusual and extraordinary conditions of employment, but merely that the

medical evidence Shealy presented was not sufficient evidence to establish

causation. According to the Commission:





The Claimant here has provided insufficient medical evidence to

prove unusual or extraordinary conditions in his employment at

Aiken County as the proximate cause of his current condition. A

review of the medical evidence shows the Claimant was admitted to

Charter Rivers Hospital on February 4, 1989 and his admitting

diagnosis was alcohol dependency, ruling out post-traumatic stress

disorder. At that point he reported a long history of alcohol abuse,

alcohol intoxication, and sedative withdrawal. This evidence shows

the Claimant's disorder pre-dated any admission for the same

aliments in December 1992 and was not related to extraordinary

stressors on the Aiken County job.



(Emphasis added).



CONCLUSION



Based on the foregoing, we AFFIRM the Court of Appeals' decision as

modified.



MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.





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