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2008-UP-028 - Barr v. Williamsburg 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


Doris Barr, Claimant, Respondent,

v.

Williamsburg County School District,
Employer, and SC School Boards
Insurance Trust, Carrier, Appellants.


Appeal From Williamsburg County
Clifton Newman, Circuit Court Judge


Unpublished Opinion No. 2008-UP-028
Submitted January 2, 2008 – Filed January 10, 2008


AFFIRMED


Kirsten Leslie Barr, of Mt. Pleasant, for Appellants

Joe Ann M. Calvy, of Kingstree, for Respondent.

PER CURIAM: In a decision affirmed by the South Carolina Workers' Compensation Commission (Appellate Panel) and the circuit court, the single commissioner found Doris Barr sustained an injury due to repetitive trauma at Williamsburg School District and was entitled to temporary total benefits and compensation for medical treatment related to Barr’s workers’ compensation injury.  Williamsburg School District and South Carolina School Boards Insurance Trust (Appellants) appeal and we affirm.[1]

FACTS

Doris Barr (Barr) began working for Williamsburg County School District (Employer) as a food service operator in the school cafeteria in 1995. Her duties varied but included scrubbing pans, lifting bags of ingredients, thawing meat, and baking in preparation to feed over 700 students.

In 2000 or 2001, Barr began experiencing tingling and numbness in her fingers. In June 2001 she was diagnosed with carpal tunnel syndrome but continued to work in the cafeteria. Barr’s pain had increased and progressed up both hands by the time she saw Dr. Gheraibeh on January 30, 2003. The next day Dr. Gheraibeh performed carpal tunnel release surgery on Barr’s left hand.  On February 19, 2003, she underwent the same surgery on her right hand.  Barr continued to suffer from pain and numbness after the surgeries. 

Although Barr had previously complained about her hands to her co-workers and the cafeteria’s assistant manager, Barr did not file a Form-50 requesting workers’ compensation until May 8, 2003. The single commissioner awarded Barr temporary total benefits for the period of January 30 to December 30, 2003. The Appellate Panel affirmed.  Appellants appealed to the circuit court which found substantial evidence supported the Appellate Panel’s findings of fact and the Appellate Panel did not err in any matters of law.  Appellants appeal.

STANDARD OF REVIEW

South Carolina Code section 1-23-380(A)(6) governs our review of workers’ compensation decisions.  Shealy v. Aiken County, 341 S.C. 448, 454-55, 535 S.E.2d 438, 442 (2000).  “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, but may reverse where the decision is affected by an error of law.” Corbin v. Kohler Co., 351 S.C. 613, 617, 571 S.E.2d 92, 95 (Ct. App. 2002) “The findings of an administrative agency are presumed correct and will be set aside only if unsupported by substantial evidence.” Id.  Substantial evidence is not a mere scintilla of evidence, but is evidence that, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached.  McCraw v. Mary Black Hosp., 350 S.C. 229, 235, 565 S.E.2d 286, 289 (2002). 

LAW/ANALYSIS

1. Appellants claim the Appellate Panel’s finding that Barr sustained repetitive trauma to her right and left upper extremities is not supported by substantial evidence.  Specifically, Appellants claim Barr’s activities at the cafeteria were neither repetitive nor traumatic.  We disagree.

Under Section 42-1-160 of the South Carolina Code (2007), a claimant is entitled to benefits for an “injury by accident arising out of and in the course of employment.” Pee v. AVM, Inc., 352 S.C. 167, 170, 573 S.E.2d 785, 787 (2002). In interpreting “injury by accident,” the Supreme Court has held that no mishap was required for an accident so long as there was an unexpected injury occurring while the employee was performing his usual duties in his customary manner. Id. at 171, 573 S.E.2d at 787;  See, e.g., Colvin v. E.I. DuPont De Nemours Co., 227 S.C. 465, 88 S.E.2d 581 (1955) (injury by accident is an injury occurring unexpectedly without the prior occurrence of any external event of an accidental nature); Hiers v. Brunson Const. Co., 221 S.C. 212, 70 S.E.2d 211 (1952) (injury by accident is an injury that is accidental in that it is unforeseen and unexpected). “The focus is not on some specific event, but rather on the injury itself.” Stokes v. First Nat'l Bank, 306 S.C. 46, 50, 410 S.E.2d 248, 250 (1991). If an injury is unexpected from the worker's point of view, it qualifies as an injury by accident. Pee at 171, 573 S.E.2d at 787.

The Appellate Panel found Barr sustained repetitive trauma to her right and left upper extremities, including trigger thumbs and cyst, and such injury arose out of and in the course of her employment as a food service operator for Employer. Barr prepared food, served food, cleaned, and stocked shelves, job duties which “required repetitive use of her hands.”  The Appellate Panel concluded Barr sustained thirty-five percent loss of use to each the right and left upper extremity. In finding Barr suffered a temporary total disability caused by her course of employment, the Appellate Panel relied upon testimony from Barr and deposition testimony from Dr. Gheraibeh concerning causation, treatment, and maximum medical improvement. 

Barr testified that she began noticing numbness and tingling in her fingers in 2000 or 2001. She continued to work but as time passed the pain and numbness progressed to her hands, her wrists became sore, and she could not maintain a grip on objects in her hands.  Barr also described the “baking, mopping,… scrubbing, lifting, stocking, and serving” required by her job. She testified she worked with three other women to prepare meals for 700 to 800 students. While the kitchen tasks rotated every week, Barr still repeated such tasks over and over again during the course of her employment. In addition, the tasks all required use of her hands in a repetitive motion as she made numerous biscuits, pulled apart frozen chickens, and washed dishes every day. Barr worked seven hours a day, five days a week during the school year for six years in the school cafeteria.

Dr. Gheraibeh testified Barr came to him after suffering from numbness in both hands for several years.  Dr. Gheraibeh explained that he performed carpal tunnel release surgery on both of Barr’s hands since surgery is more effective than Barr’s previous treatment of splinting.[2]  Dr. Gheraibeh testified the carpal tunnel release surgeries would “not cure the damage already done to the nerve,” but was intended to “prevent the condition from getting worse.”

Although Barr reached maximum medical improvement regarding her carpal tunnel syndrome in April 2003, Barr also suffered from trigger thumb. Dr. Gheraibeh performed trigger thumb release surgery on Barr’s left hand in June 2003.[3]  Dr. Gheraibeh testified that it is difficult to conclude the pain in Barr’s thumb is separate from carpal tunnel syndrome since “the thumb is involved in the carpal tunnel.” In August of 2003, Dr. Gheraibeh also diagnosed Barr as suffering from cervical strain and neck pain. Dr. Gheraibeh testified that the pain “is all connected” as the nerve that runs through the carpal tunnel in the wrist continues up the neck. Dr. Gheraibeh found Barr reached maximum medical improvement in December 2003.

Dr. Gheraibeh testified that Barr’s carpal tunnel syndrome was caused by “repeated forceful flexion of the wrist and fingers.” He described the “combination of force and repetition and posture” present in food processing work as the source of Barr’s repetitive trauma.[4] Accordingly, we find substantial evidence in the record to support the Appellate Panel’s finding that Barr’s injuries to both her right and left upper extremities arose out of repetitive trauma in the course of her employment. 

2.  Appellants claim the Appellate Panel erred in failing to make a detailed finding with respect to the statutory notice requirement.  More specifically, Appellants claim Barr did not give timely notice as required by South Carolina Code Section 42-15-20.  We disagree.

The Appellate Panel found the last date of exposure was January 30, 2003, and “the claimant gave notice to employer within ninety days.” The South Carolina Supreme Court has held, “[t]he findings of fact of an administrative body must be sufficiently detailed to enable the reviewing court to determine whether the findings are supported by the evidence and whether the law has been properly applied to those findings.” Heater of Seabrook, Inc. v. Public Service Com’n of South Carolina, 332 S.C. 20, 26, 503 S.E.2d 739, 742 (1998).  With a simple review of the record on appeal this court was able to determine the Appellate Panel’s finding is sufficiently supported by evidence from Employer’s own records.

On March 19, 2003, Employer stamped a “Certification of Physician or Practitioner” form as received by their personnel department. The form includes Barr’s name, her treating physician, and the diagnosis of bilateral carpal tunnel syndrome. The form also notes the carpal tunnel syndrome commenced “several years ago” and that Barr is currently not able to work. Accordingly, we find substantial evidence in the record to support the Appellate Panel’s finding that Barr gave notice to Employer within the statutorily required ninety days.[5]

In Bass v. Isochem, this court found that “Section 42-15-20 provides no specific method of giving notice, the object being that the employer be actually put on notice of the injury so he can investigate it immediately after its occurrence and can furnish medical care for the employee.” 365 S.C. 454, 473, 617 S.E.2d 369, 379 (Ct. App. 2005). The requirement of notice is not a mere formality and the burden is upon the claimant to show compliance with the notice provision. Id.  A repetitive trauma injury, such as carpal tunnel syndrome, has a gradual onset caused by the cumulative effect of repetitive traumatic events or “mini-accidents.”  Schulknight v. City of North Charleston, 352 S.C. 175, 178, 574, S.E.2d 194, 195 (2002).  The exact date an accident occurs is difficult to ascertain in a repetitive trauma case because there is no definite time of injury. Id. 

Although Barr did not file a worker’s compensation commission Form 50 until May 8, 2003, Barr testified she previously informed her immediate supervisor and assistant manager, Hurley McMillian, that she was hurting. “When there is some knowledge of accompanying facts connecting the injury or illness with the employment, and signifying to a reasonably conscientious supervisor that the case might involve a potential compensation claim,” then notice is adequate. Bass at 473-74, 617 S.E.2d at 379.  Accordingly, we find Barr gave adequate notice to Employer. 

AFFIRMED.

HEARN, C.J., KITTREDGE and THOMAS, JJ., concur.


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

[2] Before Barr sought treatment with Dr. Gheraibeh, she saw Dr. Healy in Florence in June 2001. Dr. Healy diagnosed Barr’s carpal tunnel syndrome and prescribed pain medication and the use of splints on Barr’s wrists. When he first saw her in January 2003, Dr. Gheraibeh was aware of Barr’s previous treatments and that her pain continued to increase.

[3] Barr elected not to have the recommended trigger thumb release surgery on her right hand.

[4] Dr. Gheraibeh denied Barr’s carpal tunnel syndrome or trigger thumb had any relation to an incident in the Spring of 2001 when the back of Barr’s hand was popped by a mixer.

[5] South Carolina Code Section 42-15-20 provides that “[e]very injured employee or his representative shall immediately on the occurrence of an accident, or as soon thereafter as practicable, give or cause to be given to the employer a notice of the accident” and “[n]o compensation shall be payable unless such notice is given within ninety days after the occurrence of the accident.” S.C. Code Ann. § 42-15-20 (2007).