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2007-UP-404 - Dew v. Santee Cooper

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


Willie J. Dew, Employee, Respondent,

v.

Santee Cooper, Employer, through South Carolina Public Service Authority, Carrier, Appellant.


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


Unpublished Opinion No. 2007-UP-404
Submitted September 1, 2007 – Filed October 3, 2007   


AFFIRMED


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

Joseph T. McElveen, Jr., of Sumter, for Respondent.

PER CURIAM:  This action originated from a workers’ compensation claim filed by Willie Joe Dew against his employer, Santee Cooper.  Santee Cooper appeals the decision of the Appellate Panel of the Workers’ Compensation Commission, which found Dew’s injuries to his right knee and back were compensable and ordered payment by lump sum to be allocated over Dew’s lifetime.  We affirm.

FACTS

On April 30, 2001, Dew was in the process of loading two vehicles onto a low-boy trailer when his right leg gave way causing him to fall backwards off the trailer.  The low-boy trailer was approximately three and one half feet tall.  Dew worked about three hours prior to the accident on April 30th. 

Following his fall, Dew went to the emergency room, which recorded right knee and right hip injuries.  Santee Cooper’s physician, Dr. Marcus Schaefer, examined Dew on the day of the fall.  Dr. Schaefer recorded that Dew fell backwards off of the low-boy and diagnosed him with a right knee strain, a right hip strain, and a contusion.      

The first report for Workers’ Compensation, Form 12A, was submitted following the accident.  Subsequently, Dew received temporary compensation, which was interrupted multiple times when Dew attempted to return to work.  Dew filed a claim by submitting a Form 50 on April 25, 2003, which listed injuries to his back, right leg, right hip, and right testicle, as well as psychological effects from the fall on April 30, 2001.  Santee Cooper filed a Form 21, requesting a hearing to stop payment of compensation. 

The single commissioner held a hearing on November 14, 2003.  The single commissioner concluded Dew was totally and permanently disabled under sections 42-9-10 and 42-9-30 of the South Carolina Code (Supp. 2002).  The single commissioner ordered Santee Cooper to pay Dew a lump sum payment, not to exceed a total of five hundred weeks of compensation.  The order allocated the lump sum payment to Dew over his lifetime. 

Santee Cooper requested the Appellate Panel review the single commissioner’s order, citing forty-five exceptions.  The Appellant Panel affirmed the single commissioner and adopted her order in full. 

Santee Cooper then appealed the Appellate Panel’s order to the circuit court.  The circuit court affirmed the Appellate Panel.  This appeal follows. 

STANDARD OF REVIEW

The findings of an administrative agency, such as the Appellate Panel, are presumed correct and will only be set aside if unsupported by substantial evidence.  Rodney v. Michelin Tire Corp., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996).  “Substantial evidence is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached.”  Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984) (internal quotations omitted).

When conflicting medical evidence is presented, the Appellate Panel’s findings of fact are conclusive.  Grayson v. Carter Rhoad Furniture, 317 S.C. 306, 309, 454 S.E.2d 320, 321-22 (1995).  The duty to determine facts is placed solely on the Appellate Panel, and the court reviewing the decision of the Appellate Panel has no authority to determine factual issues but must remand the matter to the Appellate Panel for further proceedings if necessary.  Fox v. Newberry County Mem’l Hosp., 319 S.C. 278, 280, 461 S.E.2d 392, 394 (1995). 

LAW/ANALYSIS

I. Right Knee Injury

Santee Cooper argues the Appellate Panel erred regarding Dew’s right knee for three reasons: 1) by holding compensation for Dew’s right knee injury was properly before the Appellate Panel; 2) by failing to find Dew’s right knee injury was time barred; and 3) by finding substantial evidence supported Dew’s claim for his right knee.  We disagree.

a. The Compensation Issue Was Properly Before The Appellate Panel

Santee Cooper submits because Dew “never legally claimed any entitlement to benefits for his knee or leg,” the issue was not before the Appellate Panel.  We disagree.

In his Form 50, a workers’ compensation form used to file a claim, Dew listed his back, right leg, and right hip as injuries sustained from the April 30, 2001 accident.  Additionally, Dew testified before the single commissioner that on the day of the accident his right leg “went away” and he fell onto his back.  On the day of the fall, Santee Cooper’s doctor diagnosed Dew with a right knee strain, a right hip strain, and a contusion.  Therefore, Dew presented sufficient evidence to place his right knee injury properly before the Appellate Panel.   

b. Dew’s Claim Is Not Time Barred

Santee Cooper alleges Dew’s claim for his right knee injury is time barred under section 42-15-40 of the South Carolina Code (Supp. 2006).  We disagree.

Section 42-15-40 states, “The right to compensation under this title is barred unless a claim is filed with the commission within two years after an accident . . . .”

The accident occurred on April 30, 2001, and Dew filed his Form 50 on April 25, 2003.  The Form 50 states Dew “sustained an accidental injury to his back, right leg, [and] right hip.”  Further, Dew notes on the form that he fell when his leg gave way.  Additionally, the Form 50 states Dew was filing the form as a claim.  Therefore, Dew followed section 42-15-40 by filing a claim for his right knee within the statutory time limit. 

c. Substantial Evidence Supports The Appellate Panel’s Finding

Santee Cooper argues substantial evidence does not support the Appellate Panel’s finding that Dew’s right knee was injured by an accident arising out of Dew’s employment.  We disagree.

Substantial evidence is defined as evidence that would allow reasonable minds to reach the same conclusion as the Appellate Panel.  Gibson, 282 S.C. at 386, 318 S.E.2d at 367.  Additionally, “the trier of fact [which is the Appellate Panel] is not necessarily bound by, and need not accept or believe, medical or other expert testimony, even when it is unanimous, uncontroverted, or uncontradicted.”  100A C.J.S. Workers’ Compensation §1023 (2000).

Dew testified at trial that on April 30, 2001, his “right leg went away” causing him to fall.  Dr. Preston B. Fitzgerald, a chiropractor, determined to a reasonable degree of chiropractic orthopedic probability the injuries Dew suffered were from the April 30, 2001 accident.  Dr. Stephen Rawe noted that Dew “sustained a work related injury on 4/30/01.”  Additionally, Dr. Schaefer, the company doctor, noted, “I do not believe [Dew’s] knee injury is work related, but [it] can be.”  Therefore, substantial evidence supports finding Dew’s right knee was injured by the April 30, 2001 accident.

Santee Cooper further disputes the causation of Dew’s knee injury by noting Dew saw Dr. Fitzgerald prior to the accident complaining of knee pain. 

In Gordon v. E. I. Du Pont De Nemours & Co., the South Carolina Supreme Court stated that a latent or quiescent weakened, but not disabling, condition resulting from disease or previous accidental injury that is aggravated, accelerated, or activated within the course of employment may result in a compensable disability.  228 S.C. 67, 76, 88 S.E.2d 844, 848 (1955).

Prior to the accident, Dew’s knee bothered him for a number of years following an incident when he jumped over a ditch.  On April 16, 2001, Dew saw Dr. Fitzgerald regarding pain in his right knee.  Dr. Fitzgerald referred Dew to an orthopedist, whom Dew saw on April 20, 2001.  An MRI was performed on Dew’s right knee on April 27, 2001.  The radiologist, Dr. Robin Daum-Kowalski, concluded Dew’s right knee had a lateral meniscal tear with related separation, joint effusion, and a medial meniscal signal without a tear. 

Dr. George Dawson and Dr. Robert Eagerton signed documents instructing Dew to return to full-duty work on April 30, 2001, the date of the accident.  Additionally, Dr. Marcus Schaefer recorded that Dew’s knee completely gave out on the day of the accident for the first time and subsequently gave out four additional times. 

The Appellate Panel’s adopted order explains:

The Claimant’s accident aggravated his pre-existing condition to his knee. . . .  Although the knee would have required surgery even without the accident, the fact is that everyone reasonably believed on the date of injury that Claimant was able to work with no restrictions. . . . Claimant worked several hours, putting considerable strain on his right leg and knee.  The knee “gave away”, (sic) causing him to fall.  Under the circumstances of this claim, the back and right leg injuries both arose out of and in the course of employment.

The Appellate Panel’s finding that Dew’s knee injury arose out of an accident within his scope of employment is supported by substantial evidence and, therefore, is not reversible error. 

II. Total Disability

Santee Cooper argues the Appellate Panel erred in finding Dew is entitled to benefits for permanent and total disability under sections 42-9-10 and 42-9-30 of the South Carolina Code (Supp. 2006) due to a lack of evidentiary support and the applicable law.[1]  We disagree.

In Wigfall v. Tideland Util., Inc., the South Carolina Supreme Court interpreted section 42-9-10.  Our Supreme Court elucidated three ways a claimant may obtain total disability: (1) by demonstrating one of the injuries designated as total disabilities in section 42-9-10; (2) by showing a nonscheduled injury under section 42-9-30, which caused such a loss in earning capacity to make the claimant totally disabled; and (3) by suffering a section 42-9-30 scheduled injury and an additional injury to his body.  354 S.C. 100, 105-06, 580 S.E.2d 100, 102-03 (2003).  This third option is explored below.

In Singleton v. Young Lumber Co., 236 S.C. 454, 471, 114 S.E.2d 837, 845 (1960), our Supreme Court stated:

Where the injury is confined to the scheduled member, and there is no impairment of any other part of the body because of such injury, the employee is limited to the scheduled compensation, even though other considerations such as age, lack of training, or other conditions peculiar to the individual, effect (sic) a total or partial industrial incapacity. To obtain compensation in addition to that scheduled for the injured member, claimant must show that some other part of his body is affected.

Section 42-9-30 lists various injuries and the amount and period of payments for the corresponding scheduled injuries.  Section 42-9-30(19) lists the following scheduled injury:

For the total loss of use of the back, sixty-six and two-thirds percent of the average weekly wages during three hundred weeks. The compensation for partial loss of use of the back shall be such proportions of the periods of payment herein provided for total loss as such partial loss bears to total loss, except that in cases where there is fifty percent or more loss of use of the back, in which event the injured employee shall be deemed to have suffered total and permanent disability and compensated therefor under paragraph two of § 42-9-10.

The evidence regarding Dew’s injuries does not need to come solely from doctors.  “Unless the question of the extent of partial loss of use under Code § 42-9-30 is so technically complicated as to require exclusively expert testimony, lay testimony is admissible.”  Linen v. Ruscon Constr. Co., 286 S.C. 67, 68, 332 S.E.2d 211, 212 (1985).  Additionally, “[t]he commission may find a degree of disability different from that suggested by expert testimony.”  Lyles v. Quantum Chem. Co. (Emery), 315 S.C. 440, 445, 434 S.E.2d 292, 295 (Ct. App. 1993). 

In the case at hand, Dr. W. S. Edwards, Jr. used his experience rather than the guidelines to determine Dew had a 10% back impairment.  Dr. Rawe believed Dew suffered a 5% back impairment.  Dr. Edwards further stated that Dew should not repeatedly lift anything, even if the item only weighed five pounds.  Also, Dew was not to sit or stand for extended periods of time.  Dew testified regarding his pain and his difficulty in accomplishing normal tasks such as driving or regular hygiene practices. 

Regardless of whether the Appellate Panel’s assessment that Dew sustained greater than 50% impairment to his back is correct, Dew suffered a back injury on April 30, 2001, within the scope of his employment.  Therefore, substantial evidence exists in the record that Dew suffered impairment to his back, which is a scheduled injury under section 42-9-30(19).

Now that a section 42-9-30 schedule injury has been established, this Court again turns to Wigfall and section 42-9-10.  Under Wigfall, a claimant may recover total disability if he suffered a section 42-9-30 scheduled injury and an additional injury to his body.  Wigfall, 354 S.C. at 105-06, 580 S.E.2d at 102-03.  As discussed above, Dew suffered his scheduled back injury and an additional injury to his knee during the accident.  Therefore, the Appellate Panel did not err by finding Dew suffered total disability.  Accordingly, we need not address any remaining issues regarding Dew’s injury rating.  See Rule 220(c), SCACR (“The appellate court may affirm any ruling, order, or judgment upon any ground(s) appearing in the Record on Appeal.”).

III. Loss of Use Factors

Santee Cooper argues the Appellate Panel erred in determining Dew sustained a greater than 50% loss of use to his back because the Appellate Panel’s order considers factors outside of the medical model.  We decline to reach this issue as the above determination of total disability is dispositive.  Hagood v. Sommerville, 362 S.C. 191, 199, 607 S.E.2d 707, 711 (2005) (stating an appellate court need not reach remaining issues when an issue is dispositive).

IV. Payment of Compensation

Santee Cooper contests the Appellate Panel’s allocation of Dew’s compensation in a lump sum to be paid over Dew’s lifetime by arguing the payment method circumvents federal law governing social security disability benefits.  We disagree.

Section 42-9-301 of the South Carolina Code (1976) provides a specialized scope of review for appellate courts when determining if the Appellate Panel properly granted a lump sum payment.  This applicable scope of review is whether the Appellate Panel abused its discretion.  Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612, 632 S.E.2d 874, 878 (Ct. App. 2006).

Further, section 42-9-301 states:

Whenever any weekly payment has been continued for not less than six weeks, the liability therefor may, when the employee so requests and the commission deems it not to be contrary to the best interest of the employee or his dependents, or when it will prevent undue hardship on the employer or his insurance carrier, without prejudicing the interest of the employee or his dependents, be redeemed, in whole or in part, by the payment by the employer of a lump sum which shall be fixed by the commission . . . .

Section 42-9-10 of the South Carolina Code (Supp. 2006) limits compensation to five hundred weeks and prohibits lump sum payments for a person entitled to lifetime benefits, such as paraplegics, quadriplegics, or individuals with physical brain damage.

In this case, the Appellate Panel’s order grants Dew a lump sum payment of his worker’s compensation benefits not to exceed 500 weeks.  Once the appropriate lump sum is determined, the order provides this lump sum should be allocated to Dew for the remainder of his life expectancy, which totaled 25.36 years.  The Appellate Panel found no evidence indicating Santee Cooper would be prejudiced by making the lump sum payment. 

We hold that the Appellate Panel did not abuse its discretion in providing Dew a lump sum payment to be allocated over the remainder of his life expectancy.  Santee Cooper is not prejudiced because it still compensates Dew for 500 weeks, the maximum time period.  Dew may receive this payment in a lump sum, which may even be allocated over a longer period of time; however, Santee Cooper pays the same amount regardless of the method the Appellate Panel believed best served Dew.

Santee Cooper’s main criticism of the order regarding payment hinges on an allegation that this method proscribed by the Appellate Panel’s adopted order improperly affects Dew’s potential Social Security benefits. 

Rule 201(b), SCACR, states, “Only a party aggrieved by an order, judgment, or sentence may appeal.”  Santee Cooper is not an aggrieved party.  A party is aggrieved if a judgment or order bears directly on his or her interest.  Shaw v. City of Charleston, 351 S.C. 32, 36-37, 567 S.E.2d 530, 532 (Ct. App. 2002) (“The word ‘aggrieved’ refers to a substantial grievance, a denial of some personal or property right, or the imposition on a party of a burden or obligation.  An aggrieved party or person is one who is injured in a legal sense; one who has suffered an injury to person or property.”)   (internal quotations and citations omitted).  Consequently, a party which is not aggrieved by a court’s decision is prohibited from bringing an appeal.  This is true even if the court’s decision may be erroneous and prejudicial to some other person’s rights and interests.  Id.

In the present case, even if we assumed the decision below somehow improperly affects Dew’s Social Security benefits, this in no way affects Santee Cooper’s interests.  Thus, Santee Cooper is not an aggrieved party.  Other considerations prevent us from adjudicating Santee Cooper’s claim. 

“The function of appellate courts is not to give opinions on merely abstract or theoretical matters, but only to decide actual controversies injuriously affecting the rights of some party to the litigation.” Sloan v. Greenville County, 356 S.C. 531, 552, 590 S.E.2d 338, 349 (Ct. App. 2003).  An appellate court examines justiciable controversies, which are real and substantial controversies, which are ripe and appropriate for judicial determination instead of merely contingent, hypothetical, or abstract disputes.  Spivey ex rel. Spivey v. Carolina Crawler, 367 S.C. 154, 160, 624 S.E.2d 435, 438 (Ct. App. 2005).  Therefore, issues that are not ripe are not appropriately before this Court.  Id.

This issue is not yet ripe.  Dew does not receive Social Security disability benefits at the present time.  If Dew does apply for such benefits, the Social Security Administration will be charged with the determination of any applicable set-offs. 

Additionally, to institute an action a plaintiff must first have standing.  Joytime Distribs. & Amusement Co. v. State, 338 S.C. 634, 639, 528 S.E.2d 647, 649 (1999).  “To have standing, one must have a personal stake in the subject matter of the lawsuit, i.e., one must be a real party in interest.”  Charleston County Sch. Dist. v. Charleston County Election Comm’n, 336 S.C. 174, 181, 519 S.E.2d 567, 571 (1999).  “A real party in interest is one who has a real, material, or substantial interest in the subject matter of the action, as opposed to one who has only a nominal or technical interest in the action.”  Anchor Point, Inc. v. Shoals Sewer Co., 308 S.C. 422, 428, 418 S.E.2d 546, 549 (1992). 

For a plaintiff to have taxpayer standing, the party must demonstrate some overriding public purpose or concern to confer standing to sue on behalf of his or her fellow taxpayers.  Sloan, 356 S.C. at 549, 590 S.E.2d at 347-48.  Further, taxpayer standing developed from taxpayers suing municipalities, not a former employee.  See id.; Beaufort County v. Trask, 349 S.C. 522, 529-30, 563 S.E.2d 660, 664 (Ct. App. 2002).

Santee Cooper lacks standing to bring this issue.  Merely being a taxpayer does not create standing to challenge the Appellate Panel’s adopted order as Santee Cooper was not personally injured by the Appellate Panel’s adopted order.  Therefore, the Appellate Panel’s disposition of Dew’s compensation does not create any justiciable controversy in this case, and the Appellate Panel did not abuse its discretion.

CONCLUSION

Dew’s knee injury was properly before the Appellate Panel, and substantial evidence supported the Appellate Panel’s finding that Dew injured his knee and his back during the course of his employment.  This dual injury allowed the Appellate Panel to find Dew was permanently and totally disabled.  Further, the Appellate Panel did not abuse its discretion in its determination of appropriate compensation payments for Dew. 

Accordingly, the circuit court’s rulings are

AFFIRMED. [2]

STILWELL, SHORT, AND WILLIAMS, JJ., concur.


[1] The South Carolina General Assembly recently amended 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).  This case involves an injury which occurred on April 30, 2001. 

[2] We decide this case without oral arguments pursuant to Rule 215, SCACR.