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2007-UP-388 - Collins v. Dodson Brothers Exterminating Co.

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


Michael Collins, Employee, Respondent,

v.

Dodson Brothers Exterminating Company, Employer; and Birmingham Fire Insurance Company, Carrier, Appellants.


Appeal From Horry County
 B. Hicks Harwell, Jr., Circuit Court Judge


Unpublished Opinion No. 2007-UP-388
Heard September 12, 2007 – Filed September 24, 2007


AFFIRMED


E. Ros Huff, Jr., of Irmo, for Appellants.

Craig A. Snook, of Myrtle Beach, for Respondent.

PER CURIAM:  In this workers’ compensation action, Dodson Brothers Exterminating Company and Birmingham Fire Insurance Company (collectively Dodson) appeal the finding of the Workers’ Compensation Commission’s Appellate Panel that Michael Collins was permanently and totally disabled.  We affirm.

FACTS

Collins worked at Dodson as a manager.  On October 16, 1996, Collins’s supervisor, Jim Vaughn, told Collins to dispose of a pest control product called Phostoxin by dissolving it in a bucket of water.  When Collins did this, a chemical reaction occurred, converting the Phostoxin into a gas, which Collins accidentally inhaled.  Shortly thereafter, Collins began to experience health problems.  Ultimately, following a MRI, Dr. Jerry Schexnayder diagnosed Collins with avascular necrosis, a disease where the bone experiences a loss of blood supply resulting in bone tissue dying and eventually collapsing.      

In 1998, Collins had his left hip replaced.  In a report dated February 7, 2001, Dr. Schexnayder found Collins achieved maximum medical improvement for his left hip and gave him a seventy-five percent impairment rating for the lower left extremity.  On December 4, 2001, Dr. Schexnayder also replaced Collins’s right hip.  In a report dated April 15, 2002, Dr. Schexnayer determined Collins was at maximum medical improvement for his right hip and gave him a seventy-five percent impairment rating for his lower right extremity. 

On August 24, 2000, Collins initially filed a workers’ compensation claim alleging he was totally and permanently disabled as a result of inhaling the Phostoxin gas.  On December 9, 2003, the single commissioner held a hearing on the matter and determined Collins was permanently and totally disabled.  Dodson appealed, and the Appellate Panel affirmed the single commissioner and adopted the single commissioner’s findings of fact and conclusions of law.  Dodson appealed, and the circuit court affirmed the Appellate Panel’s decision.  This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions by the Appellate Panel.  Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981).  Under the scope of review established in the APA, this court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law.  Stone v. Traylor Bros., Inc., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004).

The substantial evidence rule governs the standard of review in a workers’ compensation decision.  Frame v. Resort Servs. Inc.,357 S.C. 520, 527, 593 S.E.2d 491, 494 (Ct. App. 2004).  The Appellate Panel’s decision must be affirmed if supported by substantial evidence in the record.  Shuler v. Gregory Elec., 366 S.C. 435, 440, 622 S.E.2d 569, 571 (Ct. App. 2005).  An appellate court can reverse or modify the Appellate Panel’s decision only if the appellant’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.”  S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006); Bursey v. S.C. Dep’t of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct. App. 2004).

“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.

Lark, 276 S.C. at 135, 276 S.E.2d at 306.

“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”  Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm’n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).  In workers’ compensation cases, the Appellate Panel is the ultimate finder of fact.  Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).  Where the evidence is conflicting over a factual issue, the findings of the Appellate Panel are conclusive.  Hargrove v. Titan Textile Co.,360 S.C. 276, 290, 599 S.E.2d 604, 611 (Ct. App. 2004).

LAW/ANALYSIS

Dodson argues Collins failed to show by substantial evidence he is permanently and totally disabled under section 42-9-10 of the South Carolina Code  (Supp. 2006).[1]  We disagree.

Under section 42-9-10, a claimant has three ways to obtain total disability.  First, a claimant can be presumptively disabled.  

The list of injuries included in the presumptive total disability category include: “[t]he loss of both hands, arms, feet, legs, or vision in both eyes, or any two thereof, constitutes total and permanent disability to be compensated according to the provisions of this section” or that claimant “is a paraplegic, a quadriplegic, or who has suffered physical brain damage. . . .”

Wigfall v. Tideland Utils., Inc., 354 S.C. 100, 105 n.4, 580 S.E.2d 100, 102 n.4 (2003) (quoting § 42-9-10) (alteration and omission by court).  For these injuries, a claimant need not show a loss of earning capacity because the loss is conclusively presumed.  Id. at 105, 580 S.E.2d at 102.  Second, a claimant can show an injury that is not a scheduled injury under section 42-9-30 of the South Carolina Code (Supp. 2006) “caused sufficient loss of earning capacity to render him totally disabled.”  Id.  “Third, a claimant may establish total disability through multiple physical injuries.”  Id.

First, although Collins’s doctor gave a seventy-five percent impairment rating on each of his legs, Dodson contends Collins does not qualify for permanent and total disability without demonstrating a loss of earning capacity because Collins’s injuries were to his hips.[2]  Further, Dodson contends Collins did not demonstrate a loss of earning capacity.  We find the record contains substantial evidence Collins sustained a loss of earning capacity.  Accordingly, we need not address whether he was presumptively disabled.  See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not review remaining issues when its determination of a prior issue is dispositive of the appeal).

The hips are not a part of the leg; they are part of the pelvis.  Gilliam v. Woodside Mills, 319 S.C. 385, 387, 461 S.E.2d 818, 819 (1996).  Thus, Collins’s injuries are unscheduled under section 42-9-30.  South Carolina jurisprudence provides a claimant’s “bare statement that he is unable to work is insufficient, in our opinion, to afford reasonable basis for the conclusion that he is totally disabled,” where doctors testify to the contrary.  Wynn v. Peoples Natural Gas Co. of S.C., 238 S.C. 1, 13, 118 S.E.2d 812, 818 (1961).  However, in deciding whether substantial evidence supports the Appellate Panel’s findings, we consider both the lay and expert evidence.  Tiller v. Nat’l Health Care of Sumter, 334 S.C. 333, 341, 513 S.E.2d 843, 847 (1999).   While this court has previously found reasonable efforts to obtain employment and the testimony of a vocational expert are methods of demonstrating a loss of earning capacity, they are not the exclusive ways to prove the loss.  See Nettles v. Spartanburg Sch. Dist. # 7, 341 S.C. 580, 588, 535 S.E.2d 146, 150 (Ct. App. 2000); McCollum v. Singer Co.,300 S.C. 103, 107, 386 S.E.2d 471, 474 (Ct. App. 1989), Floyd v. City of Charleston, 287 S.C. 474, 480, 339 S.E.2d 166, 169 (Ct. App. 1986).  In Hanks v. Blair Mills, Inc., 286 S.C. 378, 384, 335 S.E.2d 91, 95 (Ct. App. 1985), although a doctor testified the claimant could perform jobs requiring minimum physical activity such as bricklaying, the doctor’s medical report following examination of the claimant stated the claimant became out of breath carrying out the garbage or taking a bath.  Further, the claimant himself testified to continual shortness of breath and tightness in his chest.  Id.  Additionally, another doctor testified that in his opinion, Hanks was permanently and totally disabled.  Id.  This court found substantial evidence supported the Appellate Panel’s determination that the claimant was totally disabled based on the second doctor’s testimony and the testimony of the claimant.  Id.

In the present case, Collins stopped working at Dodson in 1998 when he first had hip replacement surgery, and according to him, he continues to be unable to work.  He testified he could not get up after squatting and has difficulty walking.  He testified the pain in his knees and legs prevented him from working.  Further, Collins’s doctor, Dr. Schexnayder, twice provided his opinion that Collins could not work.  In 1999, Dr. Schexnayder stated “this patient is totally disabled from performing any occupation at this point.”  In 2001, Dr. Schexnayder again stated, “[Collins] currently is unable to perform any gainful employment and I am not optimistic that this will change in the future.”  Dodson presented no evidence Collins was able to work. 

Collins had a general equivalency degree and was fifty years old when he testified before the single commissioner in 2003.  He received no special training after school, and he had previously worked as a mechanic for thirteen years and prior to that, as a manual laborer.  Even though Collins’s job titles at Dodson were sales and then management, those jobs still entailed crawling under houses.  Collins also testified he was not a great reader and had difficulty balancing his checkbook.  Given Collins’s background, the fact he had both hips replaced, and his impairment of seventy-five percent to each leg, he does not seem a likely candidate for anything that does not involve some physical activity, and the record supports the Appellate Panel’s finding of total and permanent disability.  We note “the final determination of witness credibility and the weight to be accorded evidence is reserved to the Appellate Panel.”  Bass v. Kenco Group,366 S.C. 450, 458, 622 S.E.2d 577, 581 (Ct. App. 2005).  Therefore, we find the evidence sufficient to uphold the Appellate Panel’s finding Collins permanently and totally disabled.

Further, Collins has been found eligible for social security disability and Dodson’s disability insurance program.  While we are cognizant of the fact “awards and records of the Social Security Administration ordinarily cannot be relied upon to support or deny a workers’ compensation claim,” in conjunction with the other evidence Collins presented, we believe it can be considered as further evidence supporting the Appellate Panel’s decision.  Solomon v. W.B. Easton, Inc., 307 S.C. 518, 521, 415 S.E.2d 841, 843 (Ct. App. 1992) (emphasis added).  

CONCLUSION

The record contains substantial evidence Collins sustained a loss of earning capacity.  Accordingly, the Appellate Panel did not err in finding Collins permanently and totally disabled.  Therefore, the circuit court’s order is

AFFIRMED.

STILWELL, SHORT, and WILLIAMS JJ., concur.


[1] The South Carolina General Assembly recently overhauled South Carolina’s workers’ compensation laws.  These statutory changes affect claims for injuries occurring on or after July 1, 2007.  See 2007 S.C. Acts 111, Part IV, Section 2 (“Except as otherwise provided for in this act, this act takes effect July 1, 2007, or, if ratified after July 1, 2007, and except otherwise stated, upon approval by the Governor and applies to injuries that occur on or after this date.”) (emphasis added).  The injury in this case occurred on October 16, 1996.  Of note, however, is that injuries to the hips have now been scheduled. 

[2] This case is best resolved under the loss of earning capacity provision rather than the presumptively disabled provision due to a recent South Carolina Supreme Court case.  In Therrell v. Jerry’s Inc., 370 S.C. 22, 24-25, 633 S.E.2d 893, 894 (2006), the claimant injured her rotator cuff, which is defined as part of the shoulder, but the Appellate Panel awarded her compensation under the scheduled injury of an arm.  The circuit court and this court affirmed focusing on the claimant’s description of her injury as affecting her arm and on the fact that the medical evidence rated her injury as an impairment of the upper right extremity.  Id. at 25, 633 S.E.2d at 894.  The Supreme Court found two general theories of recovery for workers’ compensation exist: (1) the “functional impairment” approach, where the functional impairment that results from an injury is dispositive for determining under what schedule an injury is paid; and (2) the “situs of the injury” approach, where the focus is on the actual injured body part to determine how to compensate an injury.  Id. at 26-28, 633 S.E.2d at 895-96.  In affirming this court as modified, the Supreme Court found South Carolina follows the situs of the injury approach.  Id. at 28, 633 S.E.2d at 896.  The court cited Gilliam v. Woodside Mills, 319 S.C. 385, 461 S.E.2d 818 (1995), as standing “for the proposition that our scheduled compensation scheme focuses on the site of the injury and not the resulting functional limitation.”  Therrell, 370 S.C. at 29, 633 S.E.2d at 897.  Accordingly, because most of Collins’s evidence focuses on his hip replacements, affirming based on an unscheduled injury and loss of earning capacity seems more appropriate than finding he was presumptively disabled due to a loss of both legs.