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
Johnny Mosley, Employee, Respondent,
MeadWestvaco, Inc., Employer, and S.C. Chamber of Commerce Manufacturers, SIF, Insurers, Petitioners,
of whom MeadWestvaco, Inc., Employer, is the Appellant.
Appeal From Charleston County
J. C. Buddy Nicholson, Jr., Circuit Court Judge
Unpublished Opinion No. 2008-UP-073
Submitted January 2, 2008 – Filed February 4, 2008
Kirsten Leslie Barr, of Mt. Pleasant, for Appellant.
Waring S. Howe, of Charleston, for Respondent.
PER CURIAM: In this workers’ compensation action, MeadWestvaco appeals from an order of the circuit court affirming a finding of the Appellate Panel of the South Carolina Workers’ Compensation Commission (the Commission) that Johnny Mosley’s hip injuries were work-related and rendered him totally disabled. We affirm.
On December 1, 1998, Johnny Mosley suffered an injury while working for Westvaco, now MeadWestvaco. On this date, Mosley felt a pulling sensation in his back and down his leg while removing railroad spikes. Mosley subsequently claimed the injury was work-related, and the claim was litigated.
The matter was tried before the single commissioner of the Workers’ Compensation Commission in August of 2000. In an order filed in December of 2000, the single commissioner found Mosley’s injury “was the unexpected and unlooked for result of work activity,” and therefore was compensable. The single commissioner ordered MeadWestvaco to pay temporary total disability benefits and causally related medical care. In April of 2001, the Commission affirmed the single commissioner’s findings and also adopted those findings by reference. This order was not appealed further.
On August 16, 2001, Mosley sought the opinion and care of an orthopedic surgeon to address his physical ailments. Dr. Howard Brilliant, an orthopedic surgeon, ultimately diagnosed Mosley as having osteoarthritis in his hips. On May 13, 2003, Mosley underwent hip replacement surgery for his left hip, performed by Dr. Brilliant.
On April 9, 2004 MeadWestvaco filed a form requesting a hearing to address several issues regarding its liability for Mosley’s medical treatment and disability. On June 22, 2004, the single commissioner heard evidence regarding, among other matters, whether Mosley was permanently and totally disabled and whether his hip injuries were causally related to the December 1, 1998 accident. The single commissioner found: 1) Mosley’s hip injuries were causally related to the December 1, 1998 accident as established by credible expert medical testimony and 2) Mosley was permanently and totally disabled due to the combination of his back and hip injuries. The single commissioner ordered MeadWestvaco to pay all lifetime medical expenses related to these injuries and permanent and total disability benefits to Mosley.
MeadWestvaco appealed the single commissioner’s findings to the Commission. The Commission affirmed the single commissioner’s decision in full and adopted the single commissioner’s findings by reference. Thereafter, MeadWestvaco appealed to the circuit court, arguing there was not substantial evidence to support the Commission’s findings. The circuit court affirmed the Commission’s decision, and this appeal followed.
STANDARD OF REVIEW
The Administrative Procedures Act establishes our standard of review for decisions by the South Carolina Workers’ Compensation Commission as the “substantial evidence” standard. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). An appellate court may reverse or modify the Commission’s decision 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. Id. at 132-33, 276 S.E.2d at 305; see also S.C. Code Ann. § 1-23-380(A)(5)(d) & (e) (Supp. 2006). “Substantial evidence is not a mere scintilla of evidence nor evidence viewed from one side, but such evidence, when the whole record is considered, as would allow reasonable minds to reach the conclusion the Full Commission reached.” Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).
The Commission is the ultimate fact finder and is not bound by the single commissioner’s findings of fact. Ross v. Am. Red Cross, 298 S.C. 490, 492, 381 S.E.2d 728, 730 (1989). The final determination of witness credibility and the weight to be given to the evidence is reserved to the Commission. Id. 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. Frame v. Resort Servs., Inc., 357 S.C. 520, 527, 593 S.E.2d 491, 495 (Ct. App. 2004). Accordingly, our review is limited to deciding only whether the Commission’s decision is unsupported by substantial evidence or is controlled by some error of law. Rodriguez v. Romero, 363 S.C. 80, 84, 610 S.E.2d 488, 490 (2005).
I. Mosley’s Hip Injuries
Initially, Mosley suggests the unappealed order of April 14, 2001 requires MeadWestvaco to pay for Mosley’s hip injuries. We disagree, although we do recognize that MeadWestvaco has attempted in this action to relitigate the compensability of the underlying 1998 work related accident.
The April 2001 order determined that Mosley “suffered a compensable injury by accident arising out of and in the course of his employment on or around December 1, 1998.” The Commission found Mosley was “entitled to medical care for his back and lower extremities” and ordered MeadWestvaco to provide “causally related medical treatment/care.” MeadWestvaco did not appeal the decision further; therefore, it is the law of the case and has been decided with absolute finality. See Charleston Lumber Co. v. Miller Housing Corp., 338 S.C. 171, 175, 525 S.E.2d 869, 871 (2000) (stating an unchallenged or unappealed ruling is the law of the case).
The full nature and extent of Mosley’s injuries, however, had not fully been discovered at the time of the Commission’s April 14, 2001 decision. The evidence presented to the Commission showed that Mosley suffered from back and leg pain. Mosley’s doctors did not diagnose the osteoarthritis in his hips until August 2001. The issue of whether these specific hip injuries were causally related to the December 1, 1998 accident was not before the Commission. Therefore, although the Commission’s finding that Mosley suffered a compensable injury from the December 1, 1998 accident is the law of the case, the issue of whether Mosley’s hip injuries were causally related has not been determined with finality. Accordingly, MeadWestvaco properly brought the matter before the Commission for determination, and we now turn to MeadWestvaco’s arguments on appeal.
MeadWestvaco first argues Mosley did not present substantial evidence to support a finding that Mosley’s accident subsequently caused his hip injuries. We disagree.
Specifically, MeadWestvaco argues that the Commission erred in relying on the testimony of Dr. Brilliant, who testified Mosley’s hip injuries were causally related to the December 1, 1998 accident. In making this argument, MeadWestvaco asserts Dr. Brilliant’s expert opinion was based on nonexistent facts and therefore the probative value of his testimony “is destroyed.”
As MeadWestvaco correctly points out, “it is well settled that the probative value of expert testimony, based upon hypothetical facts, stands or falls on the existence or nonexistence of the facts upon which it is predicated.” Chapman v. Foremost Dairies, Inc., 249 S.C. 438, 449, 154 S.E.2d 845, 851 (1967). The key issue for determining whether such testimony is probative, then, is whether the hypothetical facts relied upon by the expert witness are supported by evidence. See id. If the hypothetical facts are supported by evidence within the record, the probative value of the expert’s testimony is not destroyed. Id.
At his deposition, Dr. Brilliant testified made several assumptions in order to have an opinion to a reasonable degree of medical certainty as to how osteoarthritis developed in Mosley’s hips. He explained:
The assumptions are that Mr. Mosley was indeed hurt at work in December and that since that time until I saw him over the three-year period that he had back and left leg pain. That the pain wasn’t --did not respond to the injections for his back. Then I -- I feel pretty strongly that he got hurt at work.
In arguing Dr. Brilliant based his testimony upon nonexistent facts, MeadWestvaco focuses on Dr. Brilliant’s assumption that Mosley’s pain did not respond to the injections, pointing to multiple notations within Mosley’s medical records indicating that his pain improved following the epidural steroid injections.
While the notations in the medical records suggest the epidural steroid injections had some effect, there is evidence in the record which supports a conclusion that Mosley’s pain did not respond to the injections because they did not provide an ultimate solution to Mosley’s problem. Indeed, Dr. Brilliant testified that he believed the December 1, 1998 accident caused Mosley’s hip condition because “he was working until he got hurt on that day and from that day on he continued to have problems.” Dr. Richardson, the physician who treated Mosley for his back injuries and administered the majority of the injections, testified these injections only temporarily reduced Mosley’s pain so that he would need periodic injections “for the foreseeable future.” Dr. Richardson also testified that aside from these injections, there was nothing else that he could do for Mosley’s pain.
Because there is evidence that supports Dr. Brilliant’s assumption that Mosley’s back and leg pain did not respond to these injections, the probative value of his testimony is not “destroyed,” as MeadWestvaco argues. The existence of evidence supporting a conclusion contrary to the Commission’s findings does not mean the Commission’s determination is unsupported by substantial evidence. Ellis v. Spartan Mills, 276 S.C. 216, 218, 277 S.E.2d 590, 591 (1981). The credibility and weight of the doctor’s testimony was, of course, for the Commission as the trier of facts. See Chapman, 249 S.C. at 449, 154 S.E.2d at 851 (citing McCarty v. Kendall Co., 238 S.C. 493, 120 S.E.2d 860 (1961)). Therefore, the Commission did not err in relying on Dr. Brilliant’s testimony that Mosley’s hip injuries were causally related to the December 1, 1998 accident.
II. Permanent and Total Disability.
MeadWestvaco also argues the Commission erred in finding Mosley was permanently and totally disabled. We disagree.
A claimant may establish total disability in one of three ways under S.C. Code Ann. § 42-9-10 (Supp. 2006). See Wigfall v. Tideland Utils., Inc., 354 S.C. 100, 105, 580 S.E.2d 100, 102 (2003). First, a claimant may be presumptively totally disabled by showing a physical injury enumerated in section 42-9-10. Id. If the claimant’s injury is one of the enumerated injuries, “the claimant need not show a loss of earning capacity.” Id. Loss of earning capacity is conclusively presumed in such a situation “because the Legislature has categorized certain types of injuries as per se totally disabling . . . .” Id. Second, a claimant may establish total disability under section 42-9-10 by showing an injury diminished earning capacity to such an extent as to entitle the claimant to total disability. Id. It follows that in this scenario, a claimant bears the burden of proving lost earning capacity to establish total disability. Third, a claimant may establish total disability through multiple physical injuries. Id. at 106, 580 S.E.2d at 103. Under this scenario a claimant who has a scheduled injury under section 42-9-30 must show an additional injury. Id.
A. Combination of Injuries
MeadWestvaco first argues that Mosley suffered only a single scheduled injury under S.C. Code Ann. § 42-9-30 (1985 & Supp. 2006) and is therefore not entitled to benefits under section 42-9-10. We disagree.
As discussed in the preceding section, there was substantial evidence to support the Commission’s finding that Mosley’s hip injuries were causally related to the December 1, 1998 accident. In addition to these injuries, Mosley’s back injuries have been established through the prior Commission decision of April 14, 2001. Accordingly, Mosley’s situation falls under the third category for recovery pursuant to section 42-9-10, i.e., establishing total disability through multiple physical injuries. Indeed, the single commissioner found Mosley is permanently and totally disabled “because of the combination of injuries to the back and hips” under section 42-9-10. Because there is evidence in the record to support the conclusion Mosley’s hip injuries were causally related to the December 1, 1998 accident, the Commission’s finding that Mosley was entitled to recover under section 42-9-10 due to multiple injuries is also supported by substantial evidence. Therefore, we may not disturb this finding on appeal.
B. Reasonable Efforts to Secure Employment
MeadWestvaco’s next argument is that Mosley failed to meet his burden of proving total disability because he did not make reasonable efforts to secure employment. We note the issue of whether Mosley met his burden under the Act is not preserved for our review. In order to be preserved for our review, an issue must be raised to and ruled upon by the trial court. In re Michael H., 360 S.C. 540, 546, 602 S.E.2d 729, 732 (2004) (“An issue may not be raised for the first time on appeal. In order to preserve an issue for appeal, it must be raised to and ruled upon by the trial court.”); Lucas v. Rawl Family Ltd. P’ship, 359 S.C. 505, 510-11, 598 S.E.2d 712, 715 (2004) (“It is well settled that, but for a very few exceptional circumstances, an appellate court cannot address an issue unless it was raised to and ruled upon by the trial court.”). Based on the trial record, we find MeadWestvaco failed to raise this issue to either the Commission or the circuit court for review, and consequently the issue was never ruled upon. This issue is not preserved for our review.
The judgment of the circuit court is
HEARN, C.J., and KITTREDGE and THOMAS, JJ., concur.