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2004-UP-370 - Thigpen v. Baker Homes, Inc.

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Kenneth L. Thigpen, Employee/Claimant, Appellant,

v.

Baker Homes, Inc., Self-Insured Employer, through the S.C. Home Builders SIF, Respondent.


Appeal From Charleston County
 R. Markley Dennis, Jr., Circuit Court Judge


Unpublished Opinion No. 2004-UP-370
Submitted June 8, 2004 – Filed June 15, 2004


AFFIRMED


Kenneth L. Thigpen, Jr., Pro se, for Appellant.

John Steven Rodenberg and Kirsten Leslie Barr, both of Mt. Pleasant, for Respondent.

PER CURIAM:  Kenneth L. Thigpen appeals an order of the circuit court affirming the decision of an appellate panel of the Workers’ Compensation Commission denying his claim for compensation.  We affirm.

FACTS

Kenneth Thigpen was employed by Baker Homes on January 6, 2000, to disassemble a house.  While on the site, a large overhead beam fell and Thigpen reacted by attempting to catch or block the beam.  After seeing a chiropractor, he sought the medical attention of Dr. James Aymond.  Dr. Aymond indicated Thigpen complained of lower back pain and posterior thigh pain.  He recommended Thigpen undergo an MRI, which later revealed a paracentral disc herniation.  Thigpen continued to be seen for treatment of his lower back and underwent physical therapy.

On May 11, 2000, Dr. Aymond indicated that Thigpen was able to lift weights up to 60 pounds and recommended he undergo a functional capacity evaluation.  At his next visit on May 25, 2000, Thigpen was found to be able to lift “within a physical demand of medium.”  He was placed on a weight restriction of 50 pounds.  Dr. Aymond also found Thigpen had reached Maximum Medical Improvement (MMI) and assigned an 8% impairment rating to his spine.

In April 2000, Thigpen was involved in a non work-related automobile accident.  In October 2000, he returned to Dr. Aymond, complaining of pain in his hip and groin.  Thigpen was referred to Dr. McCrosson for evaluation.  After an MRI, it was determined that Thigpen had right femoral head osteonecrosis. [1]   The main treatment plan was to perform a core depression of the hip.  Following a delay in treatment, the femoral head collapsed, requiring Thigpen to undergo a hip replacement. 

After filing for compensation benefits, the single commissioner found that the spinal injury was compensable, that there was no compensable injury to Thigpen’s hip, and that Thigpen reached MMI on May 25, 2000.  In addition, the commissioner found Thigpen was not entitled to temporary total disability benefits between May 25 and September 8, 2000, and Baker Homes was entitled to a credit towards the amount of permanent disability owed for the payments made to Thigpen between May 25 and September 8, 2000. 

An Appellate Panel of the Workers’ Compensation Commission (Commission) affirmed the commissioner’s findings and awarded Thigpen $27,396.36 in permanent partial disability for an 18% disability to his spine.  The amount was offset by the payments made between May 25 and September 8, 2000.  The Commission reaffirmed the finding that the femoral head osteonecrosis was not a compensable injury related to the January 6, 2000 accident.  The circuit court affirmed and determined there was substantial evidence to support the decision of the Commission.  This appeal follows.

STANDARD OF REVIEW

The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers’ Compensation Commission as the “substantial evidence” standard.  Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981).  “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.”  Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).  “In workers’ compensation cases, the Full Commission is the ultimate fact finder.”  Id. 

In an appeal from the Commission, this court may not substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact.  S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2003).  The appellate court can reverse or modify the Commission’s decision only if the claimant’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.  Id.  

DISCUSSION

Thigpen raises a total of ten issues in his pro se brief.  However only three issues were properly presented to the circuit court.  Any issue raised to this court must previously been raised to and ruled upon by the commission and the circuit court. [2]   See Pratt v. Morris Roofing, Inc., 353 S.C. 339, 352, 577 S.E.2d 475, 481-82 (Ct. App. 2003) (noting that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court).   

Therefore, the only issues that are properly preserved for our review are the three that were ruled upon by the Commission and presented for appellate review to the circuit court.  See Rodney v. Michelin Tire Corp., 320 S.C. 515, 517, 466 S.E.2d 357, 358 (1996) (“Arguments not raised to the workers’ compensation commission or to the circuit court are not preserved for appeal.”).  The three issues which are preserved for our review include whether the Commission properly determined:  1) the femoral head osteonecrosis was not causally related to the January 2000 accident; 2) Thigpen reached MMI as to his spinal injury in May 2000 and is not entitled to any further medical treatment for his hip or his spine; and 3) Thigpen was not entitled to temporary total disability payments from May 25, 2000 through September 8, 2000, and Respondent is entitled to a credit for these payments against the amount of permanent partial disability it is required to pay.  

I.  Coverage for the Hip Injury

Thigpen contends the Commission erred in finding he was not entitled to compensation benefits for his alleged hip injury.  He maintains the evidence indicates the injury was an injury by accident sustained during the course of his employment.  We find there is evidence in the record to support the Commission’s determination that the hip injury was not causally related to the January 2000 accident.

Dr. Aymond’s medical notes indicate Thigpen complained of lower back pain, which radiated through his thighs.  Throughout several months of visits with Dr. Aymond for follow-up and treatment, there is no mention in the medical records of a complaint of hip pain.  Thigpen did not complain of pain in the hip or the groin until October of 2000.  In a letter regarding his treatment of Thigpen, Dr. Aymond explained:

In my experience, avascular necrosis from trauma is only suspected after a severe pelvic injury, such as a hip dislocation that disrupts the blood supply to the femoral head.  There are other nontraumatic reasons for avascular necrosis, but these by definition do not involve any trauma in my experience.

Therefore, in my opinion to a reasonable degree of medical certainty, Mr. Thigpen’s avascular necrosis of his right hip is not related to his work-related injury in January of 2000. 

Thigpen was referred to Dr. McCrosson for evaluation of the hip.  Dr. McCrosson initially indicated the femoral head osteonecrosis might have been related to Thigpen’s work injury on January 6, 2000.  However, he later indicated:  “At this time I feel that there are too many factors confounding the issue and that it is impossible to say with any medical certainty what the cause of Mr. Thigpen’s avascular necrosis is.”  Dr. Rustin, who also saw Thigpen for his hip injury, stated, “it is impossible for me to attribute the probability of the cause of his avascular necrosis to his worker’s comp event.” 

We find that substantial evidence exists in the record to support the finding of the Commission that Thigpen’s injury is not the result of an injury by accident arising out of and in the course of his employment.

II. Entitlement to Benefits Beyond May 25, 2000

Thigpen asserts that he should be entitled to compensation and continued medical care for his femoral head osteonecrosis.  As we have determined above, Thigpen’s hip injury is not causally related to the January 2000 accident.  Accordingly, he is not entitled to continued medical care for his hip.

We construe a portion of Thigpen’s argument as questioning the finding that he reached maximum medical improvement (MMI) as to his compensable injury.  “Maximum medical improvement is a term used to indicate that a person has reached such a plateau that in the physician’s opinion there is no further medical care or treatment which will lessen the degree of impairment.”  O’Banner v. Westinghouse Elec. Corp., 319 S.C. 24, 28, 459 S.E.2d 324, 327 (Ct. App. 1995).  The Commission must make a factual determination of whether the claimant has reached MMI.  See id.  This Court would only reverse the finding of the Commission if it is unsupported by substantial evidence.  See Shealy, 341 S.C. at 455, 535 S.E.2d at 442.

In this case, Dr. Aymond indicated in a medical record dated May 25, 2000:  “I believe the patient has reached [MMI] and has an impairment of 8% impairment of the spine.  We will plan to see him in follow-up as needed.”  While Thigpen does not specifically challenge the finding that he reached MMI as to his spinal injury, the above documentation provides support for the Commission’s finding.  Accordingly, the determination that Thigpen reached MMI on May 25, 2000 and is not entitled to further temporary total disability benefits is supported by substantial evidence. 

III. Benefits Between May and September 2000

Thigpen contends the Commission erred in determining that he was not entitled to benefits from May 25 to September 8, 2000.  We disagree. 

“Workers’ compensation awards have generally provided for temporary total disability benefits until maximum medical improvement, at which point a claimant receives permanent partial disability if warranted.”  O’Banner, 319 S.C. at 28, 459 S.E.2d at 326.  The Commission must make a factual determination of whether the claimant has reached MMI, and therefore, the employer would no longer be liable for temporary total disability compensation.

Dr. Aymond found Thigpen reached MMI on May 25, 2000, and assigned 8% impairment to the spine.  Baker Homes continued to pay Thigpen temporary total disability compensation until September 8, 2000, when the payments were stopped after Baker Homes received videotaped evidence that Thigpen was able to work.  The surveillance records detailing the videotape indicate that on September 8, 2000, Thigpen was seen lifting vinyl siding, using tools, climbing a ladder, and bending over while working at a job site. 

As we have determined the Commission correctly found Thigpen reached MMI by May 25, 2000, it also correctly determined he was then entitled to permanent partial disability and not temporary total disability.  The Commission awarded Thigpen 18% disability to the spine and required permanent partial disability compensation of $27,396.36.

We find the decision denying Thigpen temporary total disability benefits from May 25 to September 8, 2000 was supported by substantial evidence.  In addition, Baker Homes is entitled to a credit for the amount of temporary total disability payments made to Thigpen during this period of time.  

CONCLUSION

Most of the issues raised by Thigpen attempt to relitigate issues which were abandoned after an adverse decision by the single commissioner and later the Commission.  Accordingly, these issues were not preserved for our review on appeal.  We find there is substantial evidence to support the Commission’s findings that the femoral head osteonecrosis was not compensable, that Thigpen had reached MMI on May 25, 2000 and was not entitled to additional temporary total disability benefits, and that Baker Homes was entitled to a credit for benefits paid between May 25 and September 8, 2000.  Accordingly, the decision of the circuit court is

AFFIRMED.

ANDERSON, HUFF, and KITTREDGE, JJ., concur. 


[1] This is also referred to in the record as avascular necrosis or AVN.

[2]   We note that Thigpen has failed to follow the South Carolina Appellate Court Rules in his filings with this court.  His brief is conclusory and contains no supporting authority for his positions.  See First Sav. Bank v. McLean, 314 S.C. 361, 363, 444 S.E.2d 513, 514 (1994); Solomon v. City Realty Co., 262 S.C. 198, 201, 203 S.E.2d 435, 436 (1974).