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2012-UP-196 - Thigpen v. Lexington Medical Center

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


Brenda Thigpen, Appellant/Respondent,

v.

Lexington Medical Center and Companion Third Party Administrators, Respondents/Appellants.


Appeal from the Appellate Panel
South Carolina Workers' Compensation Commission


Unpublished Opinion No. 2012-UP-196
Heard January 26, 2012 – Filed March 21, 2012   


AFFIRMED


Robert Norris Hill, of Newberry, and Thomas Pinckney Bellinger, of Lexington, for Appellant-Respondent.

Grady L. Beard and Nicolas L. Haigler, both of Columbia, for Respondents-Appellants.

PER CURIAM:  In this Workers' Compensation case, Brenda Thigpen appeals from an order of the Appellate Panel of the South Carolina Workers' Compensation Commission (Commission) reversing the single commissioner's finding that Thigpen's claim for bi-lateral carpal tunnel syndrome was compensable as a work-related repetitive trauma injury (RTI).  Lexington Medical Center (Employer) and Companion Third Party Administrators (Carrier) appeal the Commission's affirmance of the single commissioner's finding that Thigpen gave timely notice, pursuant to S.C. Code Ann. § 42-15-20.  We affirm the Commission's order in its entirety.

FACTS

Thigpen works as a housekeeper at Lexington Medical Center where she is responsible for the daily cleaning of eighteen patient rooms and public areas.  Her work activities include mopping, scrubbing, changing bed linens, vacuuming, moving furniture, and bagging trash.  Thigpen began experiencing "numbness, sleepiness, [and] pain in the tip of [her] finger" while working on April 30, 2008.  She notified her supervisor of these symptoms and, two months later, she saw her family physician, Dr. William Korman, for concerns regarding hypertension and hand pain.  Dr. Korman suspected carpal tunnel syndrome was causing Thigpen's hand pain, and he referred Thigpen to Dr. Daniel Westerkam for nerve conduction studies.

On July 9, 2008, Dr. Westerkam performed nerve conduction studies; thereafter, he informed Thigpen that she had "moderate" carpal tunnel syndrome on the right side and "mild" carpal tunnel syndrome on the left side.  On July 31, 2008, Thigpen filed an accident report with Employer stating she had developed carpal tunnel symptoms in both wrists and her symptoms had started two months earlier.  On September 24, 2008, Thigpen filed a Form 50 alleging she had developed bilateral carpal tunnel syndrome as a result of work-related RTI to her wrists. 

After Thigpen's symptoms worsened, Dr. Korman referred her to orthopedic surgeon Michael Ugino.  On October 14, 2008, Dr. Ugino performed a right carpal tunnel release.  On October 31, 2008, Employer filed a Form 51 contending: (1) Thigpen had failed to give timely notice of her alleged RTI; and (2) Thigpen's carpal tunnel syndrome was the result of a pre-existing disability that was unrelated to her work activities.  On January 5, 2009, Dr. Ugino released Thigpen to return to regular-duty work. 

LAW/ANALYSIS

1.     Notice of Repetitive Trauma Injury

On appeal, Employer contends the Commission erred in finding Thigpen had given timely notice, pursuant to section 42-15-20, which states: 

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, unless reasonable excuse is made to the satisfaction of the commission for not giving timely notice, and the commission is satisfied that the employer has not been unduly prejudiced thereby. 

S.C. Code Ann. § 42-15-20(C) (Supp. 2011); see also King v. International Knife and Saw-Florence, 395 S.C. 437, 444, 718 S.E.2d 227, 231 (Ct. App. 2011) ("[A] work-related [RTI] 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."). 

We agree with the Commission's finding that "notice began to run at the earliest when [Thigpen] went to the doctor on June 27, 2008."  Because Thigpen provided notice on July 31, 2008 by filing an accident report, we affirm the Commission's determination that notice was timely.

2.     Compensability of Repetitive Trauma Injury

Thigpen contends the Commission erred in determining her claim for RTI is not compensable because no causal connection exists between her work activities and the development of her carpal tunnel syndrome.

Compensability of RTI is determined pursuant to section 42-1-172: 

(A) "Repetitive trauma injury" means an injury which is gradual in onset and caused by the cumulative effects of repetitive traumatic events.  Compensability of a repetitive trauma injury must be determined only under the provisions of this statute.

(B) An injury is not considered a compensable repetitive trauma injury unless a commissioner makes a specific finding of fact by a preponderance of the evidence of a causal connection that is established by medical evidence between the repetitive activities that occurred while the employee was engaged in the regular duties of his employment and the injury.

(C) As used in this section, "medical evidence" means expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified medical physician.

(D) A repetitive trauma injury is considered to arise out of employment only if it is established by medical evidence that there is a direct causal relationship between the condition under which the work is performed and the injury.

S.C. Code Ann. § 42-1-172(A)-(D) (Supp. 2011) (emphases added). 

Both Dr. Korman and Dr. Ugino distinguished "causation" of Thigpen's carpal tunnel syndrome from the potential "aggravation" of an underlying condition.  Dr. Korman, who stated he was not an expert on carpal tunnel syndrome, testified that Thigpen's job duties could "potentially exacerbate" her carpal tunnel syndrome.  Dr. Ugino, the orthopedic surgeon who performed Thigpen's surgery, testified that he had not given any opinion on the causation of Thigpen's carpal tunnel syndrome, he could not say what caused it, and he could not state how long the condition had been present.  Dr. Ugino stated: "[I'm] not certain as to the causation of her carpal tunnel syndrome, but her job activities, if she does a lot of repetitive flexion, extension activities most probably can aggravate any preexisting problems." 

We affirm the Commission's determination that Thigpen failed to demonstrate, by medical evidence, the existence of a direct causal connection between the repetitive activities of her work and her carpal tunnel syndrome. 

CONCLUSION

For the foregoing reasons, the Commission's order is

AFFIRMED.

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