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2012-UP-153 - McCall v. Sandvik, 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 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Donna L. McCall, Appellant,

v.

Sandvik, Inc. and Sentry Insurance Company, Respondents.


Appeal from the Appellate Panel
South Carolina Workers' Compensation Commission


Unpublished Opinion No. 2012-UP-153  
Heard December 6, 2011 – Filed March 7, 2012


AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


Larry C. Brandt, of Walhalla, for Appellant.

Grady L. Beard, of Columbia, for Respondents.

PER CURIAM:    In this workers' compensation case, Donna McCall appeals from the order of the Appellate Panel of the South Carolina Workers' Compensation Commission (Commission) affirming the single commissioner's finding that her claim for repetitive trauma injury (RTI) to her bilateral wrists was barred because she had failed to give timely notice pursuant to section 42-15-20 of the South Carolina Code.  We affirm in part, reverse in part, and remand. 

Initially, McCall contends the Commission erred in admitting into evidence the medical records of Dr. Felipe Amaya, a neurologist she consulted in 1999.  McCall argues Dr. Amaya, at the time of the hearing, was "incompetent to testify as to any professional opinions" because his license to practice medicine had been permanently revoked and he was no longer licensed to practice in any state.  Furthermore, McCall argues Dr. Amaya's records were inadmissible because section 42-1-172 of the South Carolina Code, which governs compensability of RTI, requires medical evidence "offered by a licensed and qualified physician."

The Commission used Dr. Amaya's records for the limited purpose of determining whether McCall's notice was timely under section 42-15-20.  See S.C. Code Ann. § 1-23-330 (2005) (stating that while the rules of evidence do not apply in contested cases before the Commission, "[i]rrelevant, immaterial, or unduly repetitious evidence shall be excluded").  Section 42-1-172 was not invoked because the Commission did not reach the question of whether McCall's RTI was compensable.  See Michau v. Georgetown Cnty., Op. No. 27604 (S.C. Sup. Ct. refiled February 1, 2012) (Shearouse Adv. Sh. No. 4 at 26).  Consequently, we find no error in the admission of Dr. Amaya's records under the more relaxed admissibility provisions of section 1-23-330.

As to the timeliness of McCall's notice, there was no substantial evidence to support the Commission's finding that McCall "discovered or could have discovered her condition was compensable as early as 1999, when she was diagnosed with carpal tunnel syndrome."  We disagree with the Commission's finding that Dr. Amaya's letter of December 10, 1999 was sufficient to establish that McCall was "diagnosed" with her current condition—or, for that matter, that she was diagnosed with any condition.  The December 10, 1999 letter from Dr. Amaya to McCall's family physician was a general "assessment" at a time when McCall was seeking treatment for tremors and was not experiencing symptoms of carpal tunnel syndrome.  Dr. Amaya noted the absence of carpal tunnel syndrome symptoms as follows: "mild right [carpal tunnel syndrome], now without [symptoms]."  Further, Dr. Amaya did not notify McCall of his assessment of carpal tunnel syndrome.  McCall continued to work until 2007, one year following her fall at work.  She sought no medical treatment for the gradual development of pain in her arms and hands, and Dr. David Rogers, who diagnosed McCall's carpal tunnel syndrome on November 29, 2007, was the first doctor who notified her that she had carpal tunnel syndrome. 

Even had McCall been diagnosed with RTI in 1999, it was unclear at that time what notice, if any, she would have been obligated to provide.  In 1999, the South Carolina Code contained no reference to RTI.  Further, the common law had not yet determined whether RTI was an injury by accident, which required notice pursuant to section 42-15-20, or an occupational disease, which required notice within ninety days of disability.  See Pee v. AVM, Inc., 352 S.C. 167, 173, 573 S.E.2d 785, 788 (2002) ("Whether a repetitive trauma injury is compensable either as an injury by accident or an occupational disease has not been squarely addressed by this Court.").  Notably, in 2005, this court applied section 42-15-20 to a claimant's RTI and held "[n]otice begins to run when the employee becomes disabled and could discover with reasonable diligence his condition is compensable."  Bass v. Isochem, 365 S.C. 454, 481, 617 S.E.2d 369, 383 (Ct. App. 2005) (emphases added).           

Moreover, McCall's admission—"she knew the job caused the problems"—was insufficient to support the Commission's finding that she had reason to believe she had a "compensable" condition prior to either her carpal tunnel syndrome diagnosis on November 29, 2007 or her inability to work resulting from carpal tunnel syndrome.  In 2007, the legislature added subsection (C) to section 42-15-20, effective July 1, 2007, which states, in pertinent part: "In the case of repetitive trauma, notice must be given by the employee within ninety days of the date the employee discovered, or could have discovered by exercising reasonable diligence, that his condition is compensable . . . ."  S.C. Code Ann. § 42-15-20(C) (Supp. 2011).  This court interpreted subsection (C) in King v. International Knife and Saw-Florence:  "[A] work-related repetitive trauma injury does not become compensable, and the ninety-day reporting clock does not start, until the injured employee discovers or should discover he qualifies to receive benefits for medical care, treatment, or disability due to his condition."  395 S.C. 437, 444, 718 S.E.2d 227, 231 (Ct. App. 2011).  The court found a distinction existed between work-related aches and pains and a compensable condition:

[A] mere work-related ache does not constitute a compensable condition, regardless of whether the employee later develops an injury.  The Act requires an injured employee to be diligent, not prescient.  King's condition was not compensable until it either required medical care or interfered with his ability to perform his job, whichever occurred first.

Id. at 445, 718 S.E.2d at 231.

Therefore, McCall's obligation to provide notice under section 42-15-20(C) was triggered only after her RTI required medical care or interfered with her ability to perform her job—neither of which occurred prior to her diagnosis on November 29, 2007.  Because McCall gave notice of her RTI on January 30, 2008—well within the ninety-day period required under section 42-15-20(C)—we reverse the Commission's conclusion that McCall failed to provide timely notice of her RTI and remand for a determination of compensability pursuant to section 42-1-172.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

SHORT, WILLIAMS, and GEATHERS, JJ., concur.