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2008-UP-076 - Richardson v. Lee 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


Wallace H. Richardson, Sr., Respondent,

v.

Lee County School District, Employer, and South Carolina School Boards Insurance Trust, Carrier, Appellants.


Appeal From Lee County
 Clifton Newman, Circuit Court Judge


Unpublished Opinion No. 2008-UP-076
Submitted December 1, 2007 – Filed February 4, 2008


AFFIRMED


Adrianne L. Turner, of Columbia, for Appellants.

E. W. Cromartie, II, of Columbia, for Respondents.

PER CURIAM:  In this workers’ compensation action, Lee County School District (School District) appeals the award of benefits to Dr. Wallace Richardson, contending (1) the work-related accident on which Richardson’s claim was based did not result in any permanent injury; (2) Richardson was not permanently and totally disabled; and (3) Richardson’s unjustified refusal to undergo surgery made him ineligible for benefits.  We affirm.[1] 

FACTS

Richardson had taught school for thirty years.  At the time of his accident, he was a science teacher with School District at Lee County Middle School.  On October 16, 2002, while Richardson was attending a school staff conference, the wicker chair in which he was sitting collapsed, causing him to fall backwards onto his back and hips and hit his shoulder.  As a result of the accident, Richardson sustained substantial injuries to his back and hips, as well as injuries to his head, shoulders, elbows, wrists, and neck. 

Before the incident, Richardson suffered from degenerative joint disease and arthritis for which he sought treatment from Dr. Williams, his regular physician.  Just two days before the accident, Richardson, on a referral from Dr. Williams, consulted Dr. Ervin, an orthopedic physician in Florence, who determined Richardson was suffering from severe degenerative disease of both hips and advised Richardson he would eventually have to undergo replacement of both hips.  Richardson was also an overweight smoker and suffered from chronic bronchitis and sleep apnea. 

After the accident, Dr. Williams treated Richardson’s leg and hip pain.  On November 4, 2002, Richardson consulted Dr. Ervin, who wrote in his notes that he anticipated Richardson would suffer no permanent impairment from his fall and recommended that Richardson follow through with the physical therapy prescribed by Dr.Williams.  On Dr. Williams’s advice, Richardson underwent physical therapy at Tuomey Rehabilitation Center in Sumter.  After three weeks, however, Richardson found no improvement in his condition and stopped treatment. 

Richardson notified School District and timely filed a workers’ compensation claim.  On December 20, 2004, the single commissioner held a hearing and found Richardson suffered a compensable injury by accident arising out of and in the course of his employment that left him permanently and totally disabled from a combination of injuries to his back, legs, and hips.  School District, along with its insurance company, applied to the appellate panel for review of the single commissioner’s findings.  The appellate panel unanimously affirmed the order of the single commissioner.  Thereafter, the circuit court affirmed the appellate panel’s order and denied School District’s motion to alter or amend.  This appeal followed. 

STANDARD OF REVIEW

“The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers’ Compensation Commission.”  Forrest v. A.S. Price Mechanical, 373 S.C. 303, 306, 644 S.E.2d 784, 785 (Ct. App. 2007) (citing Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981)).  “In workers’ compensation cases, the Full Commission is the ultimate fact finder.”  Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) (citation omitted).  This Court reviews facts based on the substantial evidence standard.  Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612, 632 S.E.2d 874, 877 (Ct. App. 2006).  “Under the substantial evidence standard, the appellate court may not substitute its judgment for that of the Commission as to the weight of the evidence on questions of fact.”  Forrest, 373 S.C. at 306, 644 S.E.2d at 785 (citing S.C. Code Ann. § 1-23-380(A)(5) (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, 341 S.C. at 455, 535 S.E.2d at 442.

LAW/ANALYSIS

1.  School District first contends Richardson’s condition existed before his accident and he therefore was not entitled to workers’ compensation benefits.  We disagree. 

The aggravation of a pre-existing condition that leads to disability or death is compensable under the South Carolina Workers’ Compensation Act.  See Glover v. Columbia Hosp. of Richland County, 236 S.C. 410, 419, 114 S.E.2d 565, 569 (1960) (stating a claimant’s pre-existing disease or infirmity does not disqualify a workers’ compensation claim if the claimant’s work aggravated, accelerated, or combined with the disease or infirmity to cause the condition for which compensation is sought); Holly v. Spartan Grain Mill & Co., 210 S.C. 183, 189, 42 S.E.2d 59, 62 (1947) (“Where a previously diseased condition is aggravated by injury or accident arising out of or in the course of employment, and this results in . . . disability, there is a compensable injury.”); Anderson v. Baptist Med. Ctr., 343 S.C. 487, 493, 541 S.E.2d 526, 528 (2001) (“The right of a claimant to compensation for aggravation of a pre-existing condition arises only where there is a dormant condition which has produced no disability but which becomes disabling by reason of the aggravating injury.”); Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 437, 458 S.E.2d 76, 79 (Ct. App. 1995) (“[A] work-related accident which aggravates or accelerates a pre-existing condition, infirmity, or disease is . . . compensable.”).

School District asserts Richardson’s hip problems were caused by years of obesity and the stress of being a professional football player.  Although Richardson himself acknowledged he had been a large man his whole life and played both college and professional football, we cannot, under our standard of review, disregard the substantial evidence of record that Richardson’s present complaints resulted from his workplace accident rather than his prior physical condition.  This evidence consists of both lay and professional testimony.

At the hearing before the single commissioner, Richardson testified about differences in his physical abilities before and after his accident.  He stated that, although he did not need a cane before his accident, he now cannot walk or stand up from a sitting position without one.  Before his injury, in addition to working full time with School District, he was a pastor to three church congregations, but can no longer continue any of these activities.  Since the accident, he has been unable to help his wife with cleaning, shopping, and other household activities.  Furthermore, Richardson testified he experienced a weaker physical state even with his medication use.  In addition, Richardson’s wife testified on his behalf and supported his assertions. 

The record also has medical evidence that Richardson’s accident resulted in a compensable injury.  Although Dr. Ervin initially anticipated no permanent impairment as a result of the incident, he later stated he did not feel Richardson would be able to continue with his job as a school teacher and assigned him a forty-percent impairment rating for each hip.  Significantly, in his deposition, Dr. Ervin, in responding to a question from Richardson’s attorney regarding his opinion as to whether Richardson’s fall aggravated his pre-existing degenerative disease, stated “there’s no question about it.” 

2.  School District next argues Richardson failed to meet his burden of proving a loss of earning capacity under the workers’ compensation statutes.  In support of this argument, School District contends Richardson is qualified and capable of retaining a high earning capacity in an administrative position despite his accident.  We decline to address this argument.

We have reviewed the record on appeal and found no indication that School District either raised this issue to the appellate panel or presented it in its petition for judicial review; therefore, this issue is not preserved for our review.  Although this issue may have been referenced in School District’s motion under Rule 59(e), the motion cannot cure the failure to timely raise it to the appropriate tribunal.  See Hickman v. Hickman, 301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990) (“A party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgment but did not.”).

3.  Finally, School District argues that, pursuant to South Carolina Code section 42-15-60, Richardson should have been ordered to forfeit his benefits because he refused reasonable medical treatment.  In support of this argument, School District appears to assert that Richardson, in refusing to lose weight and continuing to smoke, has without good cause made himself unable to undergo recommended hip replacement surgery to improve his condition.  We disagree. 

Section 42-15-60 provides in pertinent part as follows:

The refusal of an employee to accept any medical, hospital, surgical or other treatment when provided by the employer or ordered by the Commission shall bar such employee from further compensation until such refusal ceases and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Commission the circumstances justified the refusal, in which case the Commission may order a change in the medical or hospital service.

S.C. Code Ann. § 42-15-60 (1985) (emphasis added).

In finding Richardson was justified in “refusing” bilateral hip arthroplasty surgery, the single commissioner, affirmed by the appellate panel and the circuit court, cited not only the risks of the surgery but also the absence of any request by School District that Richardson undergo such an operation.  School District does not allege it ever offered, much less provided, such a procedure.  Under these circumstances, we hold section 42-15-60 does not apply to the present case.  Regardless of whether Richardson’s failure to lose weight and stop smoking could constitute an unjustified refusal of recommended treatment, the fact that this treatment was neither provided by School District nor ordered by the Workers’ Compensation Commission prevents this failure from making him ineligible for benefits.

AFFIRMED.

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


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