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2005-UP-113 - McCallum v. Beaufort County School District

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


Elaine W. McCallum,        Appellant,

v.

Beaufort County School District, Self-Insured Employer, through the South Carolina Boards Insurance Trust,        


Appeal From Beaufort County
Perry M. Buckner, Circuit Court Judge


Unpublished Opinion No. 2005-UP-113
Submitted February 1, 2005 – Filed February 14, 2005


AFFIRMED


J. Olin McDougall, II, of Beaufort, for Appellant.

Kirsten Leslie Barr, of Mt. Pleasant, for Respondent.

PER CURIAM:  Elaine W. McCallum appeals the circuit court’s order affirming the South Carolina Workers’ Compensation Commission’s (the Commission) decision denying her workers’ compensation benefits.  We affirm. [1]

FACTS

McCallum sought benefits for injuries she sustained in an accident that allegedly occurred during the course and scope of her employment as a gifted and talented teacher at St. Helena Elementary School on August 23, 2000.   

McCallum testified on her own behalf before the Single Commissioner.  According to her testimony, on the day of the accident McCallum was calculating student grade point averages, which required her to review student files located in the school’s main office.  The files were stored in eleven by fourteen inch boxes.  McCallum alleged she was lifting a box of files when she turned and her right knee “popped out.”  She remained at work for part of the day, but eventually signed a “blank leave sheet,” a form an employee would sign to indicate absence, and went home.  McCallum did not fill out a workers’ compensation incident report or report her injury to a supervisor that day.  She testified that Joyce Chisolm, the school nurse, heard her cry out, “I think I’ve killed myself, I’ve hurt my knee.”  However, at the hearing, Chisolm testified that although her office was next to the student files, she never heard McCallum cry out in pain and knew nothing of an injury.     

Following the alleged accident, McCallum continued working.  McCallum testified that she made an appointment with Dr. Rodin, an orthopedist, for September 1, 2000.  Prior to her September 1 appointment with Dr. Rodin, McCallum sought treatment for a cough from Dr. Jenkins, an associate doctor within the same practice.  According to Dr. Jenkins’s record dated August 31, 2000, McCallum did not complain of any problem with her knee.

McCallum then saw Dr. Rodin, but failed to check the box directly above her signature on the patient registration form to indicate her injury was work related.  Language located directly above McCallum’s signature on the patient registration form stated that written workers’ compensation verification was needed before she could be seen if her problems were work related.  The second page of the registration form contained a space for McCallum to list “all injuries” she could recall with appropriate dates; however, she listed no injuries and Dr. Rodin filled the space with a “Ø” symbol showing no injuries.  On the final page of the registration form, McCallum signed a statement acknowledging her responsibility for the payment of treatment costs.  

On September 8, 2000, McCallum sustained another injury while shopping.  McCallum was leaving a store and leaning on a shopping cart when a store employee jerked the cart away causing her hip to “pop” and a pain to shoot down past her right knee. 

McCallum submitted Dr. Rodin’s records in support of her worker’s compensation claim.  Dr. Rodin’s record dated November 2, 2000, reveals that McCallum was unsure of the date of her injury.  Dr. Rodin’s report dated September 1, 2000, suggests McCallum twisted her knee carrying boxes of student files on August 23, 2000.  A notation at the bottom of the page shows the note was not dictated until April 24, 2001, because, according to Rodin, “the original dictation couldn’t be found.”  Dr. Rodin testified, via deposition, that he relied on his recollections, handwritten notes, and McCallum’s registration form in dictating the note.  McCallum, however, did not mention any history of an accident on her registration form, and Dr. Rodin’s handwritten notes indicate McCallum had no history of an accident.   Moreover, on March 21, 2001, Dr. Rodin dictated an operative note reporting McCallum injured her knee as the result of a fall.  The Commission affirmed the Single Commissioner’s finding that Dr. Rodin’s dictation was neither reliable nor credible and his opinions should be accorded little weight.  

Dr. Laverne Davis, principal of St. Helena Elementary School, testified on behalf of Beaufort County School District at the hearing.  Dr. Davis testified she first learned of McCallum’s injury in November 2000.  Prior to that time, Dr. Davis thought McCallum was out of work due to the injuries she sustained while shopping.  Although McCallum informed Davis she needed to attend physical therapy sessions, McCallum did not tell Davis she was injured at work during the months of August, September, or October. 

After she learned of McCallum’s allegations, Dr. Davis investigated by speaking to everyone who worked in the school office and witnesses listed on the incident report McCallum filled out in November 2000, including Terry Miller.  Dr. Davis testified that no one, including Miller, had any knowledge of McCallum injuring her right knee at work.  The Single Commissioner admitted the deposition testimony of Miller into evidence at the hearing.  In her deposition, Miller testified that she first learned McCallum was injured when she called and reported her shopping injury.  According to Miller, it was not until much later that she learned McCallum alleged she was injured at work.    

Following the hearing, the Single Commissioner issued an order finding McCallum was not entitled to workers’ compensation benefits because she was not injured within the course and scope of her employment.  McCallum appealed to the Commission, arguing the Single Commissioner erred in:  1). finding McCallum was not injured in the course and scope of her employment; 2). admitting the deposition testimony of Miller; 3). admitting the hearsay testimony of Dr. Davis; 4). according little weight to Dr. Rodin’s testimony and records; and 5). finding McCallum lacked credibility and was too highly educated to misunderstand the patient registration forms.  The Commission unanimously affirmed the order of the Single Commissioner in its entirety. 

McCallum appealed to the circuit court.  The circuit court affirmed the decision of the Commission and denied McCallum’s motion for reconsideration.  This appeal followed.

STANDARD OF REVIEW

The Administrative Procedures Act establishes the standard of review for decisions by the Workers’ Compensation Commission. Lark v. Bi-Lo, Inc., 276 S.C. 130, 132, 276 S.E.2d 304, 305 (1981).  “The appellate court’s review is limited to deciding whether the commission’s decision is unsupported by substantial evidence or is controlled by some error of law.” Hendricks v. Pickens County, 335 S.C. 405, 411, 517 S.E.2d 698, 701 (Ct. App. 1999); see Roper Hosp. v. Clemons, 326 S.C. 534, 536, 484 S.E.2d 598, 599 (Ct. App. 1997) (“On appeal from the Workers’ Compensation Commission, this court may reverse where the decision is affected by an error of law.”).  “It is not within our province to reverse findings of the Commission which are supported by substantial evidence.”  Broughton v. South of the Border, 336 S.C. 488, 496, 520 S.E.2d 634, 637 (Ct. App. 1999). 

DISCUSSION

I.  Scope of Employment

McCallum argues the Commission erred in finding that she did not prove she sustained an injury in the course and scope of her employment on August 23, 2000.  We disagree.

In order to receive workers’ compensation benefits, McCallum must prove that she sustained an “injury by accident arising out of and in the course of the employment.” S.C. Code Ann. § 42-1-160 (Supp. 2004).  The Commission found McCallum was not entitled to benefits and affirmed the Single Commissioner’s ruling that McCallum did not sustain an injury by accident arising out of her employment on August 23, 2000.  We must affirm the Commission’s ruling unless it is clearly erroneous in view of the substantial evidence on the whole record.  Nettles v. Spartanburg Sch. Dist. #7, 341 S.C. 580, 586, 535 S.E.2d 146, 149 (Ct. App. 2000).  “Substantial evidence is ‘not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action.’”  Miller by Miller v. State Roofing Co., 312 S.C. 452, 454, 441 S.E.2d 323, 324-25 (1994) (quoting Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981)).  “The substantial evidence rule does not allow judicial fact-finding, or the substitution of judicial judgment for agency judgment.  A judgment upon which reasonable men might differ will not be set aside.”  Todd’s Ice Cream, Inc. v. South Carolina Employment Sec. Comm’n, 281 S.C. 254, 258, 315 S.E.2d 373, 375 (Ct. App. 1984).  However, “[w]here there is a conflict in the evidence, either of different witnesses or of the same witnesses, the findings of fact of the Commission as triers of the fact are conclusive.”  Holcombe v. Dan River Mills/Woodside Div., 286 S.C. 223, 225, 333 S.E.2d 338, 340 (Ct. App. 1985).

Our review of the record indicates there was substantial evidence to support the Commission’s finding McCallum was not injured in the course of her employment.  The Commission noted that McCallum’s claim for benefits relied largely on her own testimony and that the Single Commissioner properly discounted her testimony because it lacked credibility.  The testimony of school employees Dr. Davis, Chisolm, and Miller contradicted McCallum’s testimony.  Specifically, Chisolm testified she did not witness McCallum injure herself, and Davis testified McCallum did not report the alleged injury until November 2000.

Additionally, although McCallum relied on medical records to support her claim, the Commission found some of Dr. Rodin’s medical records contradicted McCallum’s testimony.  Dr. Rodin’s record dated September 1, 2000, supported McCallum’s account of the injury, but Dr. Rodin did not dictate the note until the following April.  Dr. Rodin stated he relied on his recollections, handwritten notes, and McCallum’s registration form in dictating the note.  McCallum, however, did not mention any history of accident on her registration form, and Dr. Rodin’s handwritten notes indicate McCallum had no history of accident.  Moreover, on March 21, 2001, Dr. Rodin dictated an operative note reporting McCallum injured her knee as the result of a fall.  Therefore, we find substantial evidence existed to support the Commission’s decision to deny benefits to McCallum.

II.  Deposition testimony

McCallum argues the Commission erred in admitting the deposition testimony of Miller into evidence.  We disagree.

As discussed above, McCallum testified that she requested an incident report from school office manager, Miller.  In response, the School District moved to have Miller’s deposition admitted to show Miller testified McCallum did not ask for an incident form.  The Single Commissioner admitted the deposition over McCallum’s attorney’s objection that he had no notice the testimony would be admitted by the School District.  McCallum also argues admission of the deposition violated Rule 32, SCRCP, which governs the use of depositions in court proceedings.   

We find neither of McCallum’s arguments convincing.  Great liberality is exercised in permitting the introduction of evidence in proceedings under the Workers’ Compensation Act.  Hamilton v. Bob Bennett Ford, 339 S.C. 68, 70, 528 S.E.2d 667, 668 (2000).  Furthermore, the record reveals that McCallum’s attorney noticed the deposition and conducted all of the questioning.  Although McCallum’s attorney did not submit the deposition as an exhibit, he was aware of the substance of the testimony.  Additionally, in its notice of witnesses and medical reports submitted to McCallum’s attorney, the attorney for the school district indicated that Miller was a potential witness.  Moreover, even if admitting the testimony was error, it was harmless because the deposition was cumulative to other evidence in the record.  Specifically, Dr. Davis testified that at no point in August, September, or October 2000 did McCallum inform her of an injury to her right knee.  Dr. Davis also stated that his investigation into McCallum’s claim revealed that no one at the school had any knowledge of the alleged injury.  Chisolm, the school nurse, also testified that she was not aware of McCallum’s injury until November despite being in close proximity to the file room where the alleged injury occurred.  See Muir v. C.R. Bard, Inc., 336 S.C. 266, 299, 519 S.E.2d 583, 600 (Ct. App. 1999) (finding admission of improper evidence is harmless where it is merely cumulative to other evidence); see also Eadie v. H.A. Sack Co., 322 S.C. 164, 172, 470 S.E.2d 397, 401 (Ct. App. 1996) (holding an error not shown to be prejudicial does not constitute grounds for reversal).  

III.  Testimony

McCallum argues the Commission erred in allowing Dr. Davis to testify regarding the hearsay comments of Miller in contravention of Rule 802 of the South Carolina Rules of Evidence.  Rule 802, SCRE (“Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court of this State or by statute.”).  We disagree.

Dr. Davis testified that, in her capacity as principal, she undertook to investigate McCallum’s claim after learning of the allegation.  In the course of her investigation, Davis spoke to Miller, the school’s office manager.  At the hearing, Davis related that Miller said she had no knowledge of McCallum’s alleged work-related injury.  The Single Commissioner admitted the testimony over counsel’s hearsay objection.

“[T]he South Carolina Rules of Evidence do not apply in proceedings before the Workers’ Compensation Commission.”  Hamilton, 339 S.C. at 70, 528 S.E.2d at 668; see S.C. Code Ann. § 1-23-330(1) (2005) (providing that except in proceedings before the Workers’ Compensation Commission, rules of evidence apply in contested matters before an agency).  Therefore, great liberality is exercised in permitting the introduction of evidence in proceedings under the Workers’ Compensation Act, and even hearsay evidence may be admissible, provided it is corroborated by facts, circumstances or other evidence.  Hamilton, 339 S.C. at 70, 528 S.E.2d at 668.  We find the Commission committed no error in admitting Davis’s hearsay comments into evidence because it was corroborated by other evidence and circumstances.  Dr. Otis Smith, the executive director of human resources for the school district, testified that prior to his receipt of McCallum’s family leave request form, the district office had no knowledge of McCallum’s injury.  He further testified he assumed there was no injury because no one that he spoke with had any knowledge of an accident form being filed.  Moreover, as previously noted, neither Davis nor Chisolm were aware of McCallum’s claim until November 2000.  

IV.  Medical Testimony

McCallum argues the Commission erred in finding the records and reports of Dr. Rodin should be accorded little weight because there was not substantial evidence in the record to support that determination.  We disagree.

“The final determination of witness credibility and the weight to be accorded evidence is reserved to the Full Commission.”  Ross v. American Red Cross, 298 S.C. 490, 492, 381 S.E.2d 728, 730 (1989).  The reviewing 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) (2005). 

The Commission properly found Dr. Rodin’s testimony should be accorded little weight.  McCallum contends the Commission improperly substituted its opinion for that of her expert, Dr. Rodin.  However, the Commission only discounted Dr. Rodin’s testimony regarding the date, time and place of McCallum’s injury and questioned the credibility of the medical records he maintained.  As discussed above, internal inconsistencies existed between Dr. Rodin’s records and recollections.  Other witnesses’ testimony, found credible by the Commission, contradicted McCallum and Rodin’s account of the injury.  Therefore, the Commission committed no error in finding Dr. Rodin’s medical records were of questionable veracity and were outweighed by more credible evidence.      

V.  Credibility of Witness

McCallum argues the Commission erred in finding she lacked credibility and was too highly educated to misunderstand a patient registration form.  We disagree.

Prior to her first visit with Dr. Rodin, McCallum completed a patient registration form.  On the form, she failed to indicate her accident was work related and listed no injuries.  The registration form also informed McCallum workers’ compensation verification was needed before she could be seen if her problems were work related.  The Single Commissioner found:

The Claimant has a Masters (plus) in education.  I often find the injured workers unable to articulate their problems, which can lead to confusion.  Here, I find that the Claimant is highly educated and I do not find it believable that she signed certain documents, including insurance forms signed at Lowcountry Medical Group, without understanding them.     

McCallum argued the finding was erroneous before the Commission because the Single Commissioner could not make a finding regarding McCallum’s education level and credibility without expert testimony.  The Commission found the argument without merit, and we agree.  The Commission is accorded the final determination in all matters regarding witness credibility.  Ross, 298 S.C. at 492, 381 S.E.2d at 730.  We will not substitute our judgment for that of the Commission concerning the weight of evidence on questions of fact.  S.C. Code Ann. § 1-23-380(A)(6) (2005).  Because it is the province of the Commission to evaluate witness credibility in choosing to believe or disbelieve testimony, we find no error. 

CONCLUSION

The record reveals substantial evidence existed to support the Commission’s finding McCallum was not injured in the course and scope of her employment.  We find no error in the Commission’s decision to admit the deposition testimony of Miller into evidence and to allow Davis to testify regarding Miller’s statements.  Likewise, substantial evidence supports the Commission’s finding that Dr. Rodin’s reports and testimony were not credible and should be accorded little weight.  Finally, we find no error in the Commission’s determination McCallum’s testimony was not credible.  Therefore, the order of the circuit court affirming the Commission is

AFFIRMED.

ANDERSON, BEATTY, and SHORT, JJ., concur.


[1]   Because oral argument would not aid the court in resolving the issues on appeal, we decide this case without oral argument pursuant to Rule 215, SCACR.