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2008-UP-243 - Carlson v. Poston Packing Company, Inc.

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

Daryl Carlson, Appellant,

v.

Poston Packing Company, Inc., Employer, and Capital City Insurance Company, Carrier, Respondents.


Appeal From Florence County
Thomas A. Russo, Circuit Court Judge


Unpublished Opinion No.  2008-UP-243
Submitted March 1, 2008 – Filed April 23, 2008


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


Mary Cecelia Robinson and William L. Smith, II, both of Columbia, for Appellant.

Grady L. Beard, of Columbia, for Respondents.

PER CURIAM:  In this workers’ compensation case, Darryl Carlson sought benefits from his employer, Poston Packing Company, Inc., and its carrier (collectively, Poston) after he slipped and fell while loading crates of food into a freezer.  The Single Commissioner found Carlson suffered multiple injuries to his groin due to the accident, including an inguinal hernia diagnosed eight months after the fall, as well as a psychological injury.  The Single Commissioner further found Carlson had not yet reached maximum medical improvement (MMI).  An Appellate Panel of the South Carolina Workers’ Compensation Commission (the Commission) upheld the determination that Carlson suffered injuries to his groin, but specifically reversed the portions of the order finding Carlson had suffered an inguinal hernia and a psychological injury as a result of the accident and that he had not reached MMI.  The circuit court affirmed the Commission’s order, and Carlson appeals.  We affirm insofar as there is substantial evidence to support the Commission’s determination that Carlson has not established his  claim for a psychological injury. We reverse the Commission’s findings that Carlson has not established his claim for a hernia and that Carlson has reached MMI.  Finally, we remand this case to the circuit court for it to direct the Commission to make a new determination as to MMI in light of our holding.[1]

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions of the Commission.  West v. Alliance Capital, 368 S.C. 246, 628 S.E.2d 279 (Ct. App. 2006).  Under the APA, an appellate court may reverse or modify the decision of the Commission if the Commission’s findings, inferences, conclusions, or decisions are affected by an error of law or are clearly erroneous in view of the substantial evidence in the whole record.  Id.; see also S.C. Code Ann. § 1-23-380(A)(5)(d) & (e) (Supp. 2007).  Substantial evidence is evidence that, considering the record as a whole, would allow reasonable minds to reach the conclusion reached by the Commission.  Rodney v. Michelin Tire Corp., 320 S.C. 515, 466 S.E.2d 357 (1996).

The Commission is the ultimate fact-finder in workers’ compensation cases and is not bound by the Single Commissioner’s findings of fact.  Brayboy v. Clark Heating Co., 306 S.C. 56, 409 S.E.2d 767 (1991); Ross v. Am. Red Cross, 298 S.C. 490, 381 S.E.2d 728 (1989).  The final determination of witness credibility and the weight to be accorded evidence is reserved to the Commission.  Parsons v. Georgetown Steel, 318 S.C. 63, 456 S.E.2d 366 (1995).  We may not substitute our judgment for that of the Commission concerning the weight of the evidence on questions of fact.  See S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007).  The possibility of drawing two inconsistent conclusions from the evidence does not mean the agency’s conclusion is unsupported by substantial evidence.  Ellis v. Spartan Mills, 276 S.C. 216, 277 S.E.2d 590 (1981).

1.  Consideration of medical report and denial of claim for psychological injury (Carlson’s Issues I & II).  We hold the Commission properly determined the Single Commissioner erred in excluding from evidence the medical report of Dr. Selman Watson.  We likewise hold the Commission did not err in relying on the report and using it as a basis to deny Carlson’s claim for a psychological injury. 

Carlson’s accident occurred on September 8, 2003.[2]  Poston sent Carlson to Dr. Watson on October 22, 2004 for a psychological evaluation because Carlson was claiming that he sustained a psychological injury as a result of his accident.  The Commission noted Poston stated in its Prehearing Brief that it had not received a copy of the report, but that it reserved the right to submit it at the hearing.  At the hearing, the Single Commissioner did not allow the report in after Carlson objected, stating it was not timely because if the report were allowed in, then he would have to allow additional time for the doctor to be deposed and it would “clutter up the system.”  The Commission ruled it was improper for the Single Commissioner not to allow the report because Carlson was on notice that Poston was waiting for the report, Carlson was the participant in the evaluation and thus was clearly aware that a report would be forthcoming, and Poston had no control over when the doctor issued his report.  We find no abuse of discretion with the Commission’s determination that Carlson was on notice about the report prior to the hearing, as well as the Commission’s consideration of the report.

Likewise, the Commission did not err in then considering this report as a basis for denying Carlson’s claim for a psychological injury.  Although there is certainly evidence supporting Carlson’s claims, there is contrary evidence in the record that the Commission relied upon to support its decision to reverse the Single Commissioner’s finding Carlson suffered a compensable psychological claim.  The Commission noted that Dr. Watson opined in his report of October 22, 2004 that although Carlson suffered from some anxiety, “it does not rise to a level that would warrant specialized professional attention or the need for medication.”  Further, the Commission noted “Dr. Watson opined that there was reason to suspect some exaggeration of the claimant’s condition as tested by the PAI profile.”  In addition, “Dr. Watson opined the claimant suffered from a personality disorder that had developed over quite some time.”  Because we have found no error in the Commission’s finding that the Single Commissioner should not have excluded the report, the Commission properly considered Dr. Watson’s opinions.  Accordingly, based on our limited scope of review, we hold there is substantial evidence to support the decision of the Commission.

2.  Denial of compensation for inguinal hernia (Carlson’s Issue III).  We hold the Commission erred in reversing the Single Commissioner’s finding that Carlson’s inguinal hernia was caused by his work-related accident of September 8, 2003.  Our holding in this regard is made with a profound appreciation of our limited and highly-deferential scope of appellate review.  Yet the concept of “substantial evidence” must have some meaning, and having carefully reviewed the record, we are convinced that the evidence points to the inescapable conclusion that Carlson’s inguinal hernia was caused by his work-related accident, as found by the Single Commissioner and the dissenting member of the Commission.  We base this decision, in part, on our determination that the Commission committed a legal error in its characterization of the evidence.  And, as noted, substantial evidence does not support the Commission’s decision in this regard.  See S.C. Code Ann. § 1-23-380(A)(5)(d) & (e) (Supp. 2007) (stating an appellate court may reverse the Commission when its 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). 

Carlson’s authorized treating physicians were Dr. Carolyn Becker Reynolds of McLeod Occupational Health Associates and Dr. E. Daniel Guyton of Florence Urological Associates.  Carlson was diagnosed with a hernia in May 2004 and had surgery to alleviate it in September 2004.  The Single Commissioner, citing the testimony of the treating physicians, particularly Dr. Reynolds, concluded Carlson’s hernia was caused by his work-related accident.  The Single Commissioner noted there was a delay in the diagnosis of Carlson’s hernia due to the fact that he was not given the particular type of ultrasound that would diagnose this condition.  In addition, Carlson was unable to undergo the physical exam necessary to discover the hernia in the early stages of his injury.[3]  Dr. Reynolds testified that she was “greater than ninety percent certain that this [hernia] was [incurred] as a result of his [Carlson’s] initial injury.”  The Single Commissioner observed:

She [Dr. Reynolds] further explained that the hernia was not discovered after the initial injury because the injury to his scrotum prevented digital examination of the inguinal area and masked the hernia symptoms, and that the previous ultrasounds had not examined peristaltic movement. . . .  Dr. Reynolds was . . . adamant in her opinion that the September 8, 2003 injury caused Mr. Carlson’s hernia. 

McLeod Occupational Health Associates had referred Carlson to Dr. E. Daniel Guyton of Florence Urological Associates for treatment of the separate injury to his scrotum.  Dr. Guyton diagnosed Carlson as having an injury to his left epididymis (spermatic cord) and gave him conservative treatment.  When Carlson continued to have pain, Dr. Guyton surgically removed Carlson’s left epididymis in September 2004.  Dr. Guyton stated Carlson’s work injury caused a hematoma to form in Carlson’s left epidydimis and when it resolved, it left scar tissue that caused some pain. 

The Single Commissioner noted there was no evidence in the record that Carlson’s hernia pre-existed his September 8, 2003 accident, and there was no evidence in the record of any cause other than this accident.  The Single Commissioner further found that Carlson was “not at MMI.” 

In a two-to-one decision, the Commission reversed the Single Commissioner’s finding that Carlson’s inguinal hernia was a compensable injury caused by his work-related accident.  The Commission correctly stated that under section 42-9-40 of the South Carolina Code, a claimant has the burden of “definitely” proving the following: 

(1)  That there was an injury resulting in hernia or rupture;

(2)  That the hernia or rupture appeared suddenly;

(3)  That it was accompanied by pain;

(4)  That the hernia or rupture immediately followed an accident; and

(5)  That the hernia or rupture did not exist prior to the accident for which compensation is claimed.

S.C. Code Ann. § 42-9-40 (1985). 

In reversing the Single Commissioner, a majority of the Commission inexplicably stated Dr. Reynolds “was unable to state to within a reasonable degree of medical certainty that the claimant’s hernia in May of 2004, was the result of his work injury on September 8, 2003.”  This purported finding simply finds no evidentiary support in the record.  This alleged uncertainty on Dr. Reynolds’ part is a mischaracterization of her testimony.  Dr. Reynolds expressly testified that she was “greater than ninety percent certain that this [hernia] was [incurred] as a result of his [Carlson’s] initial injury.”  She stated it had gone undiagnosed and was “the missing piece of the puzzle” as to what was causing Carlson’s continuing pain.     

Although the Commission was free to disbelieve Dr. Reynold’s testimony, it did not specifically find that her testimony was lacking credibility or reject it as otherwise flawed.  Rather, the Commission asserted that she failed to state an opinion to within a reasonable degree of medical certainty.  We believe this mischaracterization of the testimony is legal error that affected the result in this case.  Cf. Seaboard Sys. R.R., Inc. v. Pub. Serv. Comm’n, 290 S.C. 275, 349 S.E.2d 896 (Ct. App. 1986) (recognizing the general principles that the Public Service Commission as an agency was responsible for determining the credibility of witnesses and that it was not required to accept testimony even if it were uncontradicted, but holding these principles “are not applicable in the instant case because the Commission did not indicate anywhere in its order that it rejected the evidence presented by Seaboard as not credible”; the appellate court concluded the Commission’s decision was not supported by substantial evidence).

Moreover, the Commission based its finding, in large part, on the testimony of Dr. Guyton, who treated the injury to Carlson’s epididymis.  The Commission stated, “Importantly, Dr. Guyton testified . . . the claimant could have sustained another accident which led to his hernia condition.”  Upon reviewing his testimony, we note Dr. Guyton acknowledged that he did not diagnose Carlson’s hernia, did not treat him for a hernia, and he did not know when Carlson sustained his hernia.  Dr. Guyton stated the hernia could have been caused by his work-related accident or it was “possible” that Carlson’s hernia was incurred after Carlson’s 2003 accident.  Dr. Guyton explained that sometimes hernias “are more subtle and it takes somebody with more expertise in dealing with hernias to determine whether that is, you know, symptomatic or not [and] whether the pain you are having is a hernia or not.”  When asked about when Carlson’s hernia developed, Dr. Guyton stated that he would “have to defer to general surgery [sic] who does hernia.” More to the point, Dr. Guyton made it crystal clear that his treatment of Carlson was unrelated to the hernia, for Dr. Guyton does not specifically treat hernias in his practice. 

We do not fault the Commission for assigning weight to the testimony of Dr. Guyton in its quest to deny compensability for Carlson’s hernia.  Our concern is with the complete lack of a nexus from the Commission’s findings and the actual evidence.  To be sure, the Commission is free to make findings, but those findings must have at least a slight connection to the evidentiary record.  Findings made from whole cloth cannot meet the minimal substantial evidence threshold.  Moreover, we are mindful that Dr. Guyton, when pressed, speculated that it was “possible” that Carlson may have sustained another injury.  If such speculative testimony were found to be sufficient, the already thin concept of substantial evidence would be an empty shell.  Here, the only evidence to within a reasonable degree of medical certainty is that of Dr. Reynolds, whose testimony the Commission mischaracterized.  Because the only basis for the Commission’s decision rests on speculation, and concomitantly the evidence allows reasonable minds to only reach the conclusion that Carlson’s hernia was caused by the work related accident, we reverse the Commission.[4]

Accordingly, based on the foregoing, we hold the Commission erred.  See Grant v. Grant Textiles, 372 S.C. 196, 202, 641 S.E.2d 869, 872 (2007) (“While the appellate courts are required to be deferential to the full commission regarding questions of fact, this deference does not prevent the courts from overturning the full commission’s decision when it is legally incorrect as it is here.”); Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612, 632 S.E.2d 874, 878 (Ct. App. 2006) (stating under the APA an appellate court may reverse the Commission’s decision if the claimant’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).

3.  Finding that MMI was reached by May 2004 (Carlson’s Issue IV).  Carlson lastly challenges the Commission’s determination that he reached MMI by May 2004.  The Commission concluded Carlson reached MMI after finding Carlson’s hematoma had resolved itself by May 2004 and that Carlson’s causally-related injuries did not include a hernia.  Since the Commission affirmed the Single Commissioner’s finding that Carlson had also suffered an injury to his epididymis, and Carlson’s treatment for this injury occurred after May 2004, the Commission erred in finding Carlson had reached MMI by May 2004.  In addition, since we are reversing the finding regarding Carlson’s inguinal hernia and hold that it is compensable, the finding of MMI must be revisited.  Accordingly, we reverse the Commission’s finding in this regard and remand this matter to the circuit court, which shall direct the Commission to reconsider the issue of MMI.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

HUFF, KITTREDGE, and WILLIAMS, JJ., concur.



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

[2]  Documents in the record on appeal also give the date of the accident as September 9, 2003.

[3] Dr. Reynolds testified that there were “basically two reasons why the hernia was not diagnosed after [Carlson’s] September 2003 incident.  One is that the concentration was on the scrotal and the testicular injury and the other would be that the ultrasound was not performed in a way that the hernia would be revealed[.]”  Dr. Reynolds further stated Carlson could not be given a proper physical exam to detect the hernia in the earlier stages of his injury.  There is no evidence to contradict these findings.

[4]  Essentially, the Commission committed legal error in stating Dr. Reynolds failed to testify to within a reasonable degree of medical certainty about causation, even though she stated she was “greater than ninety percent certain” that the work-related accident caused Carlson’s hernia.  We believe Dr. Reynolds’s testimony meets the level of certainty required for medical causation.  Further, the Commission extensively relied upon the testimony of Dr. Guyton, even though he was unable to testify to a reasonable medical certainty about the cause of Carlson’s hernia and in fact stated he could not ascertain the cause of Carlson’s hernia because he did not treat him for that condition and would have to defer to the expertise of others.