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2007-UP-511 - McDermott v. Kentucky Fried Chicken/Sylvan Food

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


Margaret McDermott, Appellant,

v.

Kentucky Fried Chicken/Sylvan Food, Employer; and Security Insurance Co. of Hartford (Covenant Administrators) and Coregis Insurance Company (GE Cypercomp), Carriers, Respondents.


Appeal From Lexington County
 Clyde N. Davis, Jr., Special Circuit Court Judge


Unpublished Opinion No. 2007-UP-511
Submitted November 1, 2007 – Filed November 5, 2007


AFFIRMED


J. Marvin Mullis, Jr., of Columbia, for Appellant.

Harold J. Willson, Jr., of Greenville; Mark Andrews Allison and Weston Adams, III, both of Columbia, for Respondents.

PER CURIAM:  In this worker’s compensation case, the Appellate Panel found Margaret McDermott did not suffer a compensable mental-mental injury, a mental injury caused or aggravated by physical injury, or a physical injury to her left shoulder.  The circuit court affirmed the decision and order of the Appellate Panel.  We affirm.[1]

FACTS

Kentucky Fried Chicken (KFC) employed McDermott as a general manager.  On June 13, 2003, McDermott slipped and fell on a wet floor at KFC.  She was taken to the emergency room where her right arm was placed in a brace.  She visited Dr. Joseph Gabriel on June 16 and 23, 2003.  The doctor’s report indicated she complained of some “pain in her right arm, hand, and shoulder but is otherwise doing well.”  When she returned for a follow up with right wrist pain, he described her condition as “some trouble with some right wrist pain as well as occasional pins and needles type sensation in her right hand.  She denies any new problems at this time.”  McDermott was excused from work June 16 through 22, 2003, returning to work on June 23, 2003. 

September 2003, McDermott learned she had been the victim of identity theft when an employee used her social security number to attempt activation of a cell phone.  McDermott was never responsible for any charges resulting from the use of her social security number, and the situation was resolved within two months.  In addition, McDermott asserts in her brief that her social security number was used in an attempt to obtain a credit card. 

In October 2003, McDermott was promoted to manager of a larger KFC.  On October 19, 2003, an incident (the Wrench Incident) occurred between McDermott and an employee, Lamont Summers.  McDermott questioned Summers about why there was not a sufficient amount of chicken prepared for the lunch crowd.  Summers picked up a pair of pliers or a wrench, which he raised to shoulder level while speaking to McDermott, and McDermott said to him, “You’d better use it.”  McDermott later became upset and started crying. 

On October 23, 2003, McDermott was admitted to Richland Springs Hospital for treatment of major depression and anxiety related to work stress.  The admitting physician indicated McDermott had a profile consistent with severe anxiety, including features of dependent and compulsive personality, and mild depression.  On October 31, 2003, McDermott was discharged with (1) a diagnosis of major depressive disorder, single episode, severe; (2) anxiety disorder; and (3) stress from work and identity theft.  The discharging physician noted her condition had rapidly improved and her mood had stabilized.  Following her discharge, McDermott was treated with electroconvulsive or “shock” therapy.  Previously, in 2001 McDermott was treated with prescription medication for depression and anxiety arising out of her exposure to pool chemicals.  The exposure was not related to employment.

McDermott filed three claims: (1) for the slip and fall, alleging it caused physical injuries and a nervous condition; (2) for the identity theft, asserting the incident caused a “nervous condition (aggravation of pre-existing condition)”; and (3) for the Wrench Incident contending it caused a “nervous condition (aggravation of pre-existing condition).” 

The single commissioner found McDermott’s physical injuries to her right arm arising out of her fall compensable and denied the remainder of the claims.  The single commissioner found McDermott’s psychological problems were neither related to nor aggravated by events she described.  These findings were based on McDermott’s lack of credibility due to her inconsistent demeanor at the hearing, her demonstration of selective memory, and her inconsistent speech patterns.  Accordingly, the single commissioner found McDermott failed to prove by the greater weight of the evidence that: (1) her work conditions were extraordinary or unusual compared to ordinary conditions of managerial employment with KFC and (2) her emotional problems were neither caused nor aggravated by unusual and extraordinary conditions of employment. 

The Appellate Panel affirmed and adopted the single commissioner’s factual findings and conclusions of law as the decision and order of the Appellate Panel.  The circuit court affirmed, incorporating the order of the Appellate Panel by reference. 

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions by the Appellate Panel of the South Carolina Workers’ Compensation Commission.  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 if 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).  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).  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).  The final determination of witness credibility and the weight to be accorded evidence is reserved for the Appellate Panel.  Bass v. Kenco Group,366 S.C. 450, 458, 622 S.E.2d 577, 581 (Ct. App. 2005).

DISCUSSION

I.  Mental Injury

McDermott contends the circuit court erred in affirming the Appellate Panel’s finding that her mental injury did not arise out of her compensable physical injury and the stressful incidents at work.  McDermott asserts all expert medical opinion submitted indicated her mental condition was caused and aggravated by the work incidents.  We disagree.

“A mental-mental injury is a purely mental injury resulting from emotional stimuli.”  Doe v. S.C. Dep’t of Disabilities & Special Needs, 364 S.C. 411, 418, 613 S.E.2d 785, 788 (Ct. App. 2005).  In order to receive benefits for a mental-mental injury unaccompanied by a physical injury, a claimant must demonstrate the stressful employment conditions causing the mental injury were extraordinary and unusual in comparison to the normal conditions of the employment.  S.C. Code Ann. § 42-1-160 (Supp. 2006).  However, where the mental injury is induced by physical injury, it is not necessary that it result from unusual or extraordinary conditions of employment.  Bass v. Kenco Group, 366 S.C. 450, 465, 622 S.E.2d 577, 584 (Ct. App. 2005).  Thus, mental injuries are compensable if induced either by physical injury or by unusual or extraordinary conditions of employment. Getsinger v. Owens-Corning Fiberglas Corp., 335 S.C. 77, 80, 515 S.E.2d 104, 105 (Ct. App. 1999).

The right of a claimant to compensation for aggravation of a pre-existing condition arises only where the claimant has a dormant condition which has produced no disability but becomes disabling because of the aggravating injury.  Anderson v. Baptist Med. Ctr., 343 S.C. 487, 493, 541 S.E.2d 526, 528 (2001).  Aggravation of pre-existing psychiatric problems is compensable if that aggravation is caused by a work-related physical injury.  Id.

For an injury to be compensable, it must arise out of and in the course of employment.  S.C. Code Ann. § 42-1-160.  An injury arises out of employment if a causal relationship between the conditions under which the work is to be performed and the resulting injury is apparent to the rational mind, upon consideration of all the circumstances.  Rodney v. Michelin Tire Corp., 320 S.C. 515, 518, 466 S.E.2d 357, 358 (1996)The claimant has the burden of proving facts that will bring the injury within the workers’ compensation law, and such award must not be based on surmise, conjecture, or speculation.  Clade v. Champion Labs., 330 S.C. 8, 11, 496 S.E.2d 856, 857 (1998).

While medical testimony is entitled to great respect, it should not be held conclusive irrespective of other evidence and the fact finder may disregard it if the record includes other competent evidence.  Tiller v. Nat’l Health Care of Sumter, 334 S.C. 333, 340, 513 S.E.2d 843, 846 (1999).  Expert medical testimony is designed to aid the Appellate Panel in coming to the correct conclusion; therefore, the Appellate Panel determines the weight and credit to be given to the expert testimony.  Id.  Once admitted, expert testimony is to be considered just like any other testimony. Id.  Accordingly, in deciding whether substantial evidence supports a finding of causation, we consider both the lay and expert evidence.  Id. at 341, 513 S.E.2d at 847.

In Sharpe v. Case Produce, Inc., 336 S.C. 154, 161, 519 S.E.2d 102, 106 (1999), the South Carolina Supreme Court explained that, where uncontroverted medical opinions are merely deductions drawn from certain symptoms, the final conclusion in disputes concerning compensability remains with the fact finder.  The court further observed that in the absence of actual testimony from a physician in the record, it is impossible to determine whether his opinion was based strictly upon medical symptoms reported by the claimant, or on other medical factors.  Id. at 161 n.2, 519 S.E.2d at 106 n.2.  The burden is on claimants to prove their injuries arise out of employment.  Id.  It was within the Appellate Panel’s discretion, as the ultimate fact-finder, to weigh the doctor’s opinion.  Id. at 161, 519 S.E.2d at 106.  The court ultimately held, although the record contained evidence from which the Appellate Panel could have gone the other way, there was evidence which would allow reasonable minds to reach the conclusion the Appellate Panel reached.  Id.  The decision of the Appellate Panel was affirmed.

The only evidence that the work incidents caused McDermott’s mental condition is her testimony and doctors’ reports.  The Appellate Panel found McDermott’s testimony was not credible.  Some of the doctors’ reports indicated the work incidents caused McDermott’s mental problems.  However, the doctors did not actually testify at McDermott’s hearing and were unavailable for cross-examination.  As in Sharpe, whether the physicians formed their opinions based solely on McDermott’s self-report or on other medical factors cannot be ascertained from the record.  In fact, the Appellate Panel found McDermott “falsely told a physician that someone made ‘a lot’ of unauthorized purchases and charges in her name.” 

Jessica Jaques, a witness the Appellate Panel found credible, testified McDermott was experiencing marital problems, including accusations of adultery by her husband.  Another manager at KFC stated McDermott disclosed that she and her husband fought.  Additionally, a medical report from April 2004 indicates McDermott’s children caused her a lot of stress and she “feels ugly.”  An undated report from Dr. Robert Schnackenberg indicates McDermott was upset because of a denied workers’ compensation claim. 

A.  “Nervous Condition” Arising from Slip and Fall

The Appellate Panel found McDermott did not develop a nervous condition because of the fall at KFC.  Immediately following the fall, McDermott reported that she was anxious and nervous.  However, at a follow up visit a week later, she did not mention being anxious or nervous, and it was the last time she mentioned pain in her right arm.  McDermott returned to work on June 19, 2003.  She did not seek treatment for anxiety and depression until September 2003, and the doctor made no mention of any causal relationship to the previous fall in his report.  Therefore, substantial evidence supports the Appellate Panel’s decision McDermott was not entitled to compensation for mental injury induced by her physical injury.

B.  “Nervous Condition” Arising from Identity Theft

A compensable injury under the Workers’ Compensation Act includes only an “injury by accident arising out of and in the course of employment.” S.C. Code Ann. § 42-1-160.  In workers’ compensation, the word “accident,” means an unlooked for and untoward event that the person who suffered the injury did not expect, design, or intentionally cause.  Yates v. Life Ins. Co. of Ga., 291 S.C. 301, 304, 353 S.E.2d 297, 299 (Ct. App. 1987).

Tamika Scott, the employee who used McDermott’s social security number, was a prisoner on work release.  McDermott’s social security number was used as the manager’s code to void orders.  KFC’s policy was that no one other than the manager should have access to the code.  KFC may have used the social security number to discourage the managers from giving the code to other employees.  Regardless of the policy, McDermott gave her code to Mable Bauknight, a team leader, as well as other employees.  Although McDermott could not recall which employees she gave her code to, she specifically denied giving it to any of the work-release employees.  Jaques, a KFC employee who the Appellate Panel found credible, testified McDermott had given her the code and Tamika Scott was one of the employees who used the code.  Jaques claimed other work-release employees had the code. 

McDermott did attribute her nervousness and anxiety to the identity theft when she visited the doctor.  However, as the Appellate Panel noted, she misrepresented the extent of the identity theft.  Further, McDermott continued to work following this incident and was promoted and assigned to a larger store in October 2003.  The Appellate Panel found it was not unexpected or out of the ordinary for other employees, including prison-release workers, to unlawfully use a social security number they obtained.  Therefore, the record contains substantial evidence supporting the Appellate Panel’s decision McDermott was not entitled to compensation for a mental injury induced by the identity theft.

C.  “Nervous Condition” Arising from Wrench Incident

The Appellate Panel found Summers to be credible and his version of the events surrounding the Wrench Incident was accurate.  Furthermore, the Appellate Panel concluded the incident between McDermott and Summers was nothing more than joking between co-workers.  Summers testified the exchange between McDermott and himself was a joking, playful one.  He testified later in the day, she told him she was upset because he picked up the wrench.  He stated he told McDermott, “I thought we was all playing” and she responded, “I know but I got upset.  I took it the wrong way,” and the two then hugged.  A doctor’s report from the day following the Wrench Incident does not mention it, although the visit was for anxiety.  Accordingly, the record contains substantial evidence supporting the Appellate Panel’s decision McDermott was not entitled to compensation for a mental injury induced by the Wrench Incident.

Substantial evidence supports the Appellate Panel’s decision that McDermott failed to meet her burden in showing a compensable mental injury arose out of her physical injury, the identity theft, and the Wrench Incident.  The Appellate Panel found (1) McDermott was not credible; (2) other events in her life caused her nervous condition, and (3) the work-related incidents were not unusual and extraordinary conditions of employment with KFC.  The circuit court did not err in affirming the Appellate Panel’s denial of McDermott’s mental injury claim.

II.  Physical Injury

McDermott argues the circuit court erred in affirming the Appellate Panel’s finding that she did not sustain a compensable physical injury to her left shoulder.  We disagree.

The factual finding of Appellate Panel that McDermott’s fall at KFC did not cause injury to the left shoulder is supported by substantial evidence in the record.  McDermott first complained of left should pain on April 28, 2004, over ten months after her fall at KFC.  At that time, she did not relate the shoulder pain to the fall.  The only evidence linking the fall at KFC to McDermott’s left shoulder pain is her testimony, which was found not credible.  While testifying, McDermott seemed to be confused about which arm she injured.  She raised her right arm to indicate it was the one injured, while stating at the same time that her left arm was injured.  A co-worker who witnessed her fall stated McDermott did not complain of any shoulder pain at the time of her injury.  McDermott asserted in her brief that the doctor’s report from June 16, 2003, reveals McDermott “injured her right hand, arm, and left shoulder.”  However, the record to which McDermott referred reads that she suffered “pain in her right arm, hand and shoulder area.” 

CONCLUSION

Substantial evidence supports the Appellate Panel’s findings that (1) McDermott’s mental condition was neither caused nor aggravated by the work related incidents at KFC, and (2) McDermott’s left shoulder pain was not causally related to the slip and fall at KFC.  We find no error in the circuit court’s incorporation of the Appellate Panels findings of fact and conclusions of law.  Accordingly, the decision and order of the circuit court is

AFFIRMED.

ANDERSON, SHORT, and WILLIAMS, JJ., concur.


[1]   We decide this case without oral argument, pursuant to Rule 215, SCACR.