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2011-UP-148 - Mullen v. Beaufort 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 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Delila D. Mullen, Appellant,

v.

Beaufort County School District and the S.C. School Boards Insurance Trust, Respondents.


Appeal From Beaufort County
Marvin H. Dukes, III, Circuit Court Judge


Unpublished Opinion No. 2011-UP-148
Heard November 3, 2010 – Filed April 12, 2011


REVERSED AND REMANDED


 

James H. Moss, of Beaufort, for Appellant.

Kirsten Leslie Barr, of Mount Pleasant, for Respondents.

PER CURIAM:  Delila Mullen appeals the circuit court's affirmation of the Appellate Panel of the South Carolina Workers' Compensation Commission's (Appellate Panel) finding that she did not (1) sustain a compensable injury by accident or an occupational disease and (2) suffer any permanent impairment or loss of use as a result of any alleged mold exposure at work.  We reverse and remand.

FACTS

Mullen is employed by the Beaufort County School District as a teacher at Hilton Head Elementary School.  In May 2002, Mullen developed a cough, sinus problems, headaches, and fatigue. She was subsequently treated by a doctor in June 2002 for bronchitis and a sinus infection. According to Mullen, her symptoms improved over the summer, but returned when school began in the fall.  In October 2002, Dr. Randall Evans examined Mullen and determined she suffered from an "environment sensitivity" and "[g]iven her reactive airway disease, she would officially meet the criteria for a reactive airways dysfunction syndrome."  In November 2002, AAA Environmental (AAA) conducted an "Indoor Environmental Quality Investigation" at Hilton Head Elementary and discovered several types of fungi growing in the school, including Aspergillus mold.  AAA recommended Mullen vacate her classroom and the carpet, ceiling tiles, and HVAC system be treated.  Mullen's classroom was gutted, and she returned to teaching in the room in January 2003.

In April 2003, Mullen filed a Form 50 with the Commission reporting an accidental injury to her sinuses and lungs.  In her pre-hearing brief, Mullen alleged she suffered from "Restrictive Airway Disease resulting from chronic exposure to Aspergillus mold in [her] classroom, affecting [her] sinuses and lungs."  Mullen reported the date of her accident as "chronic exposure up to 11/02." 

In August and September 2003, Mullen was evaluated by Dr. Charles Banov to determine whether she had any injury that could be attributed to mold exposure.  According to Dr. Banov's report, the CT scans of Mullen's sinuses were "not remarkable," and her pulmonary function and bronchoprovocation tests were normal.[1] Because Mullen's bronchoprovocation test was "[c]ompletely within normal limits," Dr. Banov opined that her "respiratory status was excellent and met all the criteria for what we consider normalcy." When asked whether Mullen had reactive airway disease, Dr. Banov testified "[s]he did not . . . because the bronchoprovocation would have brought it out . . . this is the gold standard to diagnosing reactive airway disease." Dr. Banov also performed a thermophilic battery test to check Mullen's blood for the presence of certain fungi, including Aspergillus mold. The test revealed Mullen's blood was "absolutely negative" for the presence of Aspergillus mold. 

Mullen was also evaluated by Dr. Cary Fechter in September 2003.  Dr. Fechter performed pulmonary function tests as well as chest x-rays and a CT scan of Mullen's sinuses.  He determined Mullen's pulmonary function was normal and her sinuses did "not show evidence of mucosal thickening or air fluid levels."  Dr. Fechter found Mullen's condition had improved, but noted she continued to have symptoms related to her sinuses. Dr. Fechter also performed a cardiopulmonary stress test, which revealed Mullen had "poor conditioning" with no ischemic changes and no oxygen desaturations.  In his report, Dr. Fechter stated:

All major pulmonary studies including methacholine test are normal except for her cardiopulmonary stress test.  The stress test performed under strict criteria and using sophisticated carbon dioxide/oxygen monitoring system showed a maximum oxygen consumption which was clearly lower than normal.  According to the Guide of the Evaluation Permanent Impairment, her oxygen consumption of 17.1 ml per kg per minute would place her in the 26-50% impairment of the whole person. 

Dr. Fechter opined Mullen "had a verified exposure to Aspergillus molds in an enclosed area of high intensity and of long term duration" and those factors "would lead to a [sic] expected hypersensitivity reaction."   

Dr. Banov reviewed the results of Dr. Fechter's cardiopulmonary stress test and testified Mullen's "poor conditioning" did not affect his opinion as to permanent impairment, but could provide "some explanation for her subjective complaints of pulmonary problems."  Dr. Banov testified the tests he performed indicated Mullen "did not have infection with Aspergillus" or "an allergic reaction to Aspergillus," and that she did not have any permanent impairment. When asked whether there was any objective evidence that Mullen sustained any permanent, physical injury as a result of exposure to Aspergillus mold, Dr. Banov answered, "Absolutely none." 

In October 2005, the single commissioner determined, based on Dr. Fechter's report, the AAA report, and medical reports, Mullen "suffered a compensable injury by accident and/or occupational disease to the lungs and sinuses as a result of exposure to the [A]spergillus mold in her classroom and her hyper-reactivity to the mold."  The single commissioner also found Mullen suffered permanent injury to her sinuses and was entitled to forty weeks of compensation, totaling $21,976.80.  The single commissioner determined Mullen did not sustain a permanent injury to her lungs.  Beaufort County School District and the South Carolina School Boards Insurance Trust (collectively Respondents) appealed the single commissioner's order to the Appellate Panel.  The Appellate Panel reversed the single commissioner, finding the record contained no evidence Mullen sustained a compensable injury or suffered an occupational disease arising out of and in the course and scope of her employment.  The Appellate Panel also noted "[n]o physician ever assigned an impairment rating or even indicated [Mullen] sustained a permanent impairment to her sinuses." 

Mullen appealed the Appellate Panel's order to the circuit court.  The circuit court affirmed the Appellate Panel, holding substantial evidence supported the Appellate Panel's finding Mullen presented no evidence she sustained any injury or occupational disease arising out of her employment.  The circuit court also affirmed the Appellate Panel's determination that Mullen did not sustain any permanent impairment or loss of use as a result of any alleged mold exposure at work.  This appeal followed. 

STANDARD OF REVIEW

The substantial evidence rule of the Administrative Procedures Act governs the standard of review in a workers' compensation decision.  Liberty Mut. Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct. App. 2005).  "In an appeal from the Commission, neither this court nor the circuit court may 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."  Stone v. Traylor Bros., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004). "Any review of the [C]ommission's factual findings is governed by the substantial evidence standard."  Id.  "Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action."  Liberty Mut. Ins., 363 S.C. at 620, 611 S.E.2d at 300.  "The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence."  Id.

LAW/ANALYSIS

Mullen argues the circuit court erred in finding substantial evidence supported the Appellate Panel's determination that she did not sustain a compensable injury by accident[2] or an occupational disease[3] arising out of and in the course of her employment.  We agree.

The circuit court found the record contained no evidence Mullen sustained an injury or occupational disease arising out of her employment. The circuit court noted Mullen's laboratory tests revealed her blood had no mold in it and her lung function and bronchoprovocation tests were normal.  The circuit court also concluded that Mullen failed to prove any of the statutory requirements of the Occupational Disease Statute, S.C. Code Ann. § 42-11-10 to -200 (Supp. 2010). 

Mullen argues her chronic sinus problems, cough, headaches, and fatigue, as well as Dr. Fechter's determination that she has a hypersensitivity reaction to mold, all support a finding that she suffered a compensable injury.  The Respondents maintain the record contains no evidence of injury to Mullen's lungs or sinuses and no evidence any of Mullen's symptoms were causally related to any alleged mold exposure.  The Respondents also contend Mullen failed to prove the existence of a disease caused by any mold exposure in her employment. 

We find the circuit court erred in affirming the Appellate Panel's determination the record contained no evidence Mullen sustained an injury or occupational disease arising out of the course and scope of her employment.  The record contains some evidence Mullen sustained an injury or disease.  In addition to Dr. Fechter's determination that Mullen had a hypersensitivity reaction to mold, Dr. Randall Evans examined Mullen and determined she suffered from an "environment sensitivity" and "[g]iven her reactive airway disease, she would officially meet the criteria for a reactive airways dysfunction syndrome." Accordingly, we reverse the circuit court's affirmation of the Appellate Panel's finding the record contained no evidence Mullen sustained an injury or occupational disease arising out of her employment.  We remand the issue of whether Mullen sustained an injury or occupational disease and whether she suffered any permanent impairment to the Appellate Panel for reconsideration.  We caution that our opinion is not to be confused as a finding of no substantial evidence to support the Appellate Panel's determination of lack of compensability.  Given the Appellate Panel's erroneous conclusion no evidence supported a finding of injury or occupational disease, we are simply remanding for the Appellate Panel to consider all of the evidence in making its determination regarding compensability. 

CONCLUSION

We reverse the circuit court's affirmation of the Appellate Panel's determination the record contained no evidence Mullen sustained an injury or occupational disease arising out of and in the course of her employment.  Further, we remand to the Appellate Panel for reconsideration of all the evidence to determine whether Mullen sustained an injury or occupational disease, and whether she suffered any permanent impairment.  Accordingly, the order of the circuit court is

REVERSED AND REMANDED.

HUFF, KONDUROS, and LOCKEMY, JJ., concur. 


[1] Bronchoprovocation tests are used to determine whether a patient has reactive airway disease. The test requires patients to breathe certain chemicals in order to provoke any pulmonary problems. 

[2] S.C. Code Ann. § 42-1-160 (Supp. 2010).

[3] S.C. Code Ann. § 42-11-10 (Supp. 2010).