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2008-UP-122 - GuideOne Insurance v. Evans

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

Ex Parte: GuideOne Insurance Company, Carrier, Appellant,

In Re:

John T. Evans, Respondent,

v.

White Oaks Conference Center, Employer, Appellant.


Appeal From Fairfield County
 Kenneth G. Goode, Circuit Court Judge


Unpublished Opinion No.  2008-UP-122
Submitted January 2, 2008 –Filed February 19, 2008


REVERSED IN PART, AFFIRMED IN PART AND REMANDED


Matthew R. Cook, of Columbia, for Appellants.

J. Marvin Mullis, of Columbia, for Respondent.

PER CURIAM: Employer, White Oak Conference Center (Employer),[1] contends the circuit court erred in reversing the decision of the South Carolina Workers’ Compensation Commission finding Claimant, John Evans (Evans), (1) had not suffered compensable injuries to his left knee and foot as a result of an on the job fall, and (2) had reached maximum medical improvement.  We reverse in part, affirm in part, and remand.[2]

FACTS

On January 9, 2004, while working for Employer, Evans fell 15 feet from a ladder to the concrete floor below.  Evans landed directly on his feet.  An accident report, filled out at the scene of the accident, indicates injury to Evans’ ankle.[3]  Later that day, after finishing work, Evans went to the Fairfield Memorial Hospital complaining of problems with his right ankle and foot.  He did not complain of any left ankle or knee pain.  Evans was diagnosed with a sprain of the right ankle and referred to Dr. Steven Barnett.   

Evans reported to Dr. Barnett, three days after the fall, complaining of a tremendous pain and swelling around the right ankle and foot.  Evans denied any other trauma or injury.  Dr. Barnett indicated Evans was “not progressing as quickly as I had hoped,” and referred Evans to an orthopaedist, Dr. Bradley Presnal of the Moore Orthopaedic Clinic.  Dr. Presnal diagnosed a right ankle sprain.  Because Evans continued to complain of right ankle pain even after a lengthy recovery period, Dr. Presnal referred Evans to Dr. Frank Noojin to rule out the need for arthroscopy.   

On August 31, 2004, Evans saw Dr. Green Neal via a referral from Evans lawyer.  Evans complained to Dr. Neal of left and right ankle pain and left knee pain.  Dr. Neal found “an enlarged right ankle . . . crepitation in the knees . . . [and that] the left ankle does not have that much crepitation but [Evans] complains of pain in it.”  Dr. Neal diagnosed Evans with Type II diabetes suggesting it “is the reason [Evans] injuries would not heal.”  Evans was also diagnosed with pre-existing gouty arthritis with elevated uric acid levels which Dr. Neal believed complicated Evans injuries and resulted in slowed recovery and failure to heal.  He also found these conditions were aggravated or worsened by the trauma from the fall.  Dr. Neal scheduled additional MRI’s of Evans’ left knee and ankle for September 14, 2004.   

Meanwhile, on September 2, 2004, Evans returned to Dr. Noojin, but did not complain of any injury or pain to his left ankle or knee.  Dr. Noojin found Evans at maximum medical improvement (MMI) and assigned a 3% permanent partial impairment rating to his right lower extremity. 

Evans returned to Dr. Neal on September 28, 2004.  Dr. Neal found: Evans’ left ankle showed a contusion with a small amount of fluid, possibly associated with plantar fasciitis; Evans’ left knee showed a thinning of the ACL suggesting degenerative changes; and Evans’ right ankle evidenced a contusion and tear.  Finally, on November 3, 2004, Evans returned to Dr. Noojin complaining, for the first time, of bilateral ankle pain.  Yet, Evans did not bring the new MRI’s nor mention to Dr. Noojin the findings of Dr. Neal.  Dr. Noojin reiterated his previous findings and discharged Evans at MMI.   

After an evidentiary hearing, the single commissioner issued an order finding Evans had reached MMI, awarding six percent permanent partial disability for the lower right extremity, and denying compensability for the injuries to the left foot and knee.  The single commissioner explained, “I give more weight to the reports of the authorized treating physicians than I do the testimony of [Evans’] physician, who is not a certified orthopedist.”  The order was affirmed by the full commission.  Evans then appealed to the circuit court. 

After a hearing, the circuit court found “[t]he substantial evidence in the record is susceptible of but one reasonable inference, i.e. that the injuries to [Evans’] left lower extremity were compensable as having been sustained along with the injuries to his right lower extremity in the admitted work accident.”  (emphasis in original)  Further, the circuit court noted no evidence was presented to contradict the “expert medical opinion of Dr. Neal indicating [Evans’] left sided injuries were caused or at the very least aggravated by the work fall and injuries.”  Thus, the circuit court reversed the denial of compensability for Evans’ left-sided injuries, reversed the order of permanent partial disability, and remanded to the full commission for an order of causally related medical care.  This appeal follows. 

STANDARD OF REVIEW

Appellate review of workers’ compensation decisions is governed by the South Carolina Administrative Procedures Act (APA).  Shealy v. Aiken County, 341 S.C. 448, 454, 535 S.E.2d 438, 442 (2000); See also Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981).  Pursuant to the APA, a reviewing court may affirm the decision of an agency or remand the case for further proceedings, or may reverse or modify the decision of an agency if the findings, inferences, conclusions or decisions of that agency are “clearly erroneous in view of the reliable probative and substantial evidence on the whole record.”  S.C. Code Ann. §1-23-380(A)(6) (2005); see also Bass v. Kenco Group, 366 S.C. 450, 456, 622 S.E.2d 577, 580 (Ct. App. 2005).   

The commission is the ultimate fact finder and is specifically reserved the task of assessing the credibility of the witnesses and the weight to be accorded evidence.  Shealy, 341 S.C. at 455, 535 S.E.2d at 442.  On appeal, this court determines whether the circuit court properly determined whether the commission’s findings of fact are supported by substantial evidence in the record or whether the commission’s decision is affected by an error of law.  Geathers v. 3V. Inc., 371 S.C. 570, 576, 641 S.E.2d 29, 32 (2007).  Substantial evidence is not a mere scintilla of evidence but rather is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the commission reached.  Shealy, 341 S.C. at 455, 535 S.E.2d at 442; Rodney v. Michelin Tire Corp., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996).  The mere possibility of drawing two inconsistent conclusions from the evidence does not prevent the commission’s findings from being supported by substantial evidence.  Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995).    

LAW/ANALYSIS

Employer contends the circuit court erred in reversing the decision of the commission because substantial evidence existed to support the decision in full.  We reverse and remand. 

Employer contends the circuit erred in reversing the commission’s finding and conclusion that Evans had not suffered compensable injuries to his left knee and foot as a result of the fall. 

On appeal, the circuit court found the commission’s decision was disproportionally based on the fact the accident and emergency room reports did not mention left sided symptoms and on the lack of evidence as to the left-sided injuries in the reports of the authorized physicians.  The circuit court found no expert medical evidence was offered to dispute Dr. Neal’s testimony the left-sided injuries “were caused or at the very least aggravated by the work fall and injuries.”  The circuit court concluded,

the record is susceptible of but one reasonable inference, i.e. that the injuries to [Evans] left lower extremity were compensable . . . the Commission’s decision is unsupported where weight was given only to the opinion of the authorized treating physicians yet those physicians made no mention of [Evans] pre-existing conditions and left no opinion as to the effect of the fall on those conditions or the effect of those conditions on the injuries sustained in the fall.

We find the commission considered all the medical evidence and other testimony in finding Evans suffered no direct impairment of his lower left extremity or to his feet as a result of the accident.  The commission considered not only the accident report and hospital report from the day of the accident but also the reports of the authorized physicians and Dr. Neal.  However, the commission made no specific finding of fact concerning the issue of pre-existing conditions and possible aggravation presented by Evans.  “Under the Workers’ Compensation Act, an injured claimant is entitled to compensation and medical benefits for disability arising from a permanent physical impairment in combination with a pre-existing impairment if the combined effect results in a substantially greater disability.”  Curiel v. Envtl. Mgmt. Servs., Op. No. 26409 (S.C. Filed Dec. 20, 2007) (Shearouse Adv. Sh. No. 43 at 40) (citing Ellison v. Frigidaire Home Prods., 371 S.C. 159, 638 S.E.2d 664 (2006) (applying S.C. Code Ann. § 42-9-400 (1985 & Supp. 2005))). 

The commission must make specific findings of fact upon which a claimant’s right to compensation is based.  See S.C. Code Ann. §1-23-350 (2005); Shealy v. Algernon Blair, Inc., 250 S.C. 106, 109, 156 S.E.2d 646, 648 (1967); 73A C.J.S. Public Administrative Law and Procedure §274 (2007) (“Where the requirements as to administrative findings are contained in statutes, the findings must comply therewith.”)  An appellate court, reviewing an order of the commission, “cannot make findings of fact when the commission has failed to do so because, in doing so, [the] court would improperly assume the commission’s role as factfinder.”  Nettles v. Spartanburg Sch. Dist. #7, 341 S.C. 580, 590, 535 S.E.2d 146, 151 (Ct. App. 2000).  “In reviewing a final decision of an ALJ, as when reviewing a final decision of an agency, the circuit court essentially sits as an appellate court to review alleged errors committed by the ALJ.”  Al-Shabazz v. State, 338 S.C. 354, 379, 527 S.E.2d 742, 755 (S.C. 2000).  Because the commission did not make specific findings of fact concerning the issue of aggravation, we cannot conduct a meaningful review and must reverse the circuit court’s finding of an aggravated compensable left-sided injury and remand the issue to the commission.  See, e.g., Parsons v. Georgetown Steel, 318 S.C. 63, 456 S.E.2d 366 (1995) (holding an order of the commission that does not include sufficiently detailed findings of fact must be remanded to the commission)    

Additionally, Employer contends the circuit court erred in reversing the commission’s finding and conclusion that Evans reached MMI.  We affirm.

The circuit court held the commission’s decision to decide the issue of permanent partial disability constituted a denial of due process.  The circuit court found Evans specified in his Form 50 that he was “not requesting a permanency determination at this time.”  The circuit court concluded Evans was entitled to notice of issues to be decided and was entitled to have the commission determine only those issues properly brought before it.    

On appeal to this court, Employer asserts temporary benefits may be terminated upon a showing of MMI, citing Smith v. S.C. Dep’t of Mental Health, 335 S.C. 396, 517 S.E.2d 694 (1999) and Anderson v. Baptist Medical Center and Palmetto Hospital Trust Fund, 343 S.C. 487, 541 S.E.2d 526 (2001).  Thus, because there was substantial evidence to support this finding, specifically Dr. Noojin’s report, Employer claims the circuit court erred in reversing the finding of MMI.  However, Employer failed to appeal the circuit court’s finding the commission’s decision on permanent partial disability constituted a denial of Evans’ due process.[4]  An unappealed ruling becomes the law of the case.  See Auto Owners Ins. Co. v. Langford, 330 S.C. 578, 583 n.2, 500 S.E.2d 496, 498 n. 2 (Ct. App. 1998) (noting trial court’s ruling on an issue becomes law of the case if appellant fails to take exception to it both before the trial court and on appeal).  Accordingly, we affirm the circuit court’s reversal and remand of the commission’s finding of MMI. 

CONCLUSION

On remand, we direct the commission to allow the parties to submit evidence and fully develop the record as to aggravation of any pre-existing conditions, the issue of permanent partial impairment and whether Evans has reached MMI.

Therefore, the circuit court’s order reversing the findings and conclusions of the commission are hereby

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

HUFF and PIEPER, JJ., and CURETON, A.J., concur.


[1] Employer’s Insurance Carrier, Guide One Insurance Company, is also listed as an appellant to this action.

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

[3] The accident report does not indicate whether Evans injured his right or left ankle. 

[4] Similarly, on appeal, Evans did not present the due process argument used by the circuit court.  Rather, Evans contends the circuit court properly reversed the finding of MMI because he was never provided treatment for his left lower extremity and thereby has not reached MMI.