Bass v. Isochem, 3996.

• Citation: 617 S.E.2d 369
• Decision Date: 06 June 2005
• Docket Number: No. 3996.,3996.
• Court: South Carolina Supreme Court
• Parties: Teresa A. BASS, Employee, Respondent, v. ISOCHEM and St. Paul Fire & Marine Insurance Co., Appellants.

617 S.E.2d 369

Teresa A. BASS, Employee, Respondent, v. ISOCHEM and St. Paul Fire & Marine Insurance Co., Appellants.

No. 3996.

Court of Appeals of South Carolina.

Heard May 11, 2005.

Rehearing Denied August 26, 2005.

Decided June 6, 2005.

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Stanford E. Lacy, of Columbia, for Appellants.

David V. Benson, of Rock Hill, for Respondent.

ANDERSON, J.:

In this Workers' Compensation case, the employer, Isochem Colors, Inc., appeals the circuit court's order reversing the denial of benefits to Teresa A. Bass by the Appellate Panel of the Workers' Compensation Commission. The circuit court reversed on the ground that substantial evidence did not support the Appellate Panel's decision to deny benefits because Bass failed to give timely notice of her accident to Isochem. We affirm in result and remand.

FACTUAL/PROCEDURAL BACKGROUND

In August of 1999, Bass was diagnosed with carpal tunnel syndrome. After her doctor prescribed Motrin, Bass "didn't have the problem anymore." On November 16, 2000, Bass began working at Isochem as a truck driver. Prior to starting work at Isochem, Bass had a pre-employment physical and was "pronounced fit and able to work." At Isochem, Bass was responsible for delivering large drums of powdered dye weighing between 100 to 500 pounds. This required Bass to load and unload the drums by tilting them on their edge and rolling the drums off of the truck, arm over arm, as she made deliveries. Depending on the number of delivery orders Isochem received, Bass delivered between one and fifty drums per day.

According to Bass, in January of 2001, she was delivering drums of dye to Amble Knitwear in Kings Mountain when she tipped a drum and "had some pain in [her] hand." Bass declared she "first notice[ed] problems with [her] arms when [she was] working for Isochem ... [a]bout January of 2001." Bass did not immediately inform anyone at work of her "problems" because she "thought it would go away." Bass stated she informed her supervisor, Angela Radcliff, of the "problems" "a few months later." Bass admitted she did not remember exactly when she told Radcliff but asserted that she advised Radcliff of her "problems" "on a few occasions." Bass testified:

I told [Radcliff] that moving the drums and all is bothering me. The pain is bothering me. I even told her that my hands were going numb at night. I told her that my hands, as a matter of fact I was driving and my hands were going numb while I was driving. And I was talking to her on the telephone at that time. And I told her that my hands were going numb then.

Radcliff did not recall Bass mentioning any "problems with her hands or wrists" until November of 2001. Radcliff professed: "[Bass] had come to me and she had said that that night during when she was sleeping that they were going numb and they were, you know, felt like they were asleep. And they were bothering her and hurting her." In the Supervisor's Accident Investigation Report, Radcliff indicated Bass' "Hand/Wrist" injury was reported on December 6, 2001. Bridget Roberge filled out a "Workers' Compensation—First Report of Injury or Illness" form on December 6, 2001. On the form, Roberge noted the "date of injury/illness" and the "date employer notified" was "12/06/01." Roberge further noted the "type of injury/illness" was "carpal tunnel syndrome (CTS)" and the "part of body affected" was the "wrist."

After several months of progressive pain, Bass sought medical treatment from Dr. Donald H. McQueen, III on November 28, 2001. At Dr. McQueen's office, Bass answered questions on the "Patient Medical History Form" in the following manner:

What will we be seeing you for today? wrist

....

If this was not the result of an accident, please tell us when your pain started. If you are unsure, please give an approximate date: approx. 10 mons. ago

In his medical note from Bass' November visit, Dr. McQueen wrote: "Problem: Pain in both hands with numbness.... Has developed pain in both hands." Dr. McQueen diagnosed Bass with bilateral carpal tunnel syndrome and suggested surgery to alleviate her symptoms. Bass underwent a right carpal tunnel release on December 28, 2001 and a left carpal tunnel release on January 28, 2002. In a letter to Bass' attorney dated January 15, 2002, Dr. McQueen opined:

[I] am unable to state that most probably and to a reasonable... degree of medical certainty that [Bass' work] activities have caused injury to her wrists.

... [A] person with carpal tunnel syndrome would most likely aggravate a pre-existing condition if they performed a strenuous job in a repetitious manner.

It is reasonable to say that Ms. Bass may have aggravated a pre-existing condition.

On January 9, 2002, Bass filed a Form 50 seeking Workers' Compensation benefits for bilateral carpal tunnel syndrome. On the Form 50, Bass alleged:

1.a. The claimant sustained an accidental injury to Both arms on 11-28-01 (12a says 12-6-01) in York County, State of South Carolina.

1.b. Describe briefly how the accident occurred Repetitive loading and unloading of drums of powdered dye weighing From 110 through 400 lbs. caused injury to both wrists and arm manifesting itself in the need (See Attachment)

....

4. At the time of the injury the claimant was performing services arising out of and in the course of employment.

5. Notice of the accidental injury was given to the employer on 11-28-01 in the following manner: Angela, her supervisor—on various occasions and on 11-28-01.

Isochem denied the claim on the ground that Bass failed to give timely notice.

In spite of the surgery, Bass continued to have problems. Because of these "complications," Bass was evaluated by Dr. J. Samuel Seastrunk, an orthopedic surgeon, on April 1, 2002. When asked if she told Dr. Seastrunk "about this event in January of 2001," Bass replied: "Yes, sir, I did." Bass testified:

I told [Dr. Seastrunk] that I was at Amble Knitwear in Kings Mountain [in January of 2001] and I tipped a drum and I realized that I had some pain in my hand. Then I told him that the pain got worser [sic] and worser [sic]. And I got to where I just couldn't stand it no more. And I ended up going to Dr. McQueen and he done surgery.

Counsel for Isochem asked Bass: "Is it fair to say then that the pain you were having in your hands, was the first time that you related it to rolling the drums was in January of 2001?" Bass answered: "Approximately that time."

In his medical notes, Dr. Seastrunk stated: "[Bass] relates that sometime in January of 2001 that she injured both wrists when she pulled on a drum and her wrists began hurting her." Dr. Seastrunk opined:

IMPRESSION: 1. Bilateral carpal tunnel syndrome with bilateral carpal tunnel release as a result of Workers Comp injury from repetitive loading and unloading heavy weights.

DISPOSITION AND DISCUSSION:

From the information that I have and in accordance with my evaluation of Ms. Bass today, it is my feeling that the problems she is having with both wrists, that is carpal tunnel syndrome bilaterally, is directly related to the repetitive loading and unloading of drums which seem to be an ongoing process, necessitating her to refer herself to Dr. McQueen on 11-28-01 in which he made the diagnosis of bilateral carpal tunnel syndrome.... [I]t is my feeling that [Bass] is impaired to her right upper extremity by at least ten percent 10% as a result of the carpal tunnel syndrome and also to her left upper extremity by at least thirteen percent (13%) relative to the carpal tunnel syndrome and also the area of hard spot in her left palm.

In his deposition, Dr. Seastrunk said Bass described an injury to him that occurred in January of 2001:

She was describing these drums and she apparently was pulling on the drum. I don't know exactly what these drums look like. She probably used a hand dolly or something to maneuver these things and was pulling on a drum, probably trying to get it in better position and she had a feeling of pain, if I recall, in her wrist area.... The date of the injury she gives is January 2001.

Dr. Seastrunk reiterated: "My opinion is that [Bass] developed carpal tunnel as a result of the type of activity she was doing."

The Single Commissioner denied Bass' claim for benefits. In the Commissioner's order under "Statement of the Case," the Commissioner declared: "This is a denied carpal tunnel syndrome case." Under "Summary of Evidence," the Commissioner stated:

Bass has a history of carpal tunnel syndrome. On August 31, 1999, she was diagnosed with carpal tunnel syndrome by her family physician, Dr. Steven Oehme. Bass denied any long-term affects [sic] and did not return to Dr. Oehme for follow-up visits. Dr. Oehme's report ... states claimant was diagnosed with bilateral carpal tunnel syndrome, mild, left greater than the right. Dr. Oehme's report indicates Bass should take anti-inflammatories and consider a brace. The report states that, "She agrees."

....

Bass underwent right carpal tunnel release by Dr. McQueen on December 28, 2001. She underwent left carpal tunnel release on January 28, 2002....

In the section entitled "Findings of Fact," the Commissioner found: "On August 11, 1999, claimant was first diagnosed with carpal tunnel syndrome by Dr. Oehme and was given anti-inflammatories." The Commissioner noted that Bass testified her initial injury occurred in January 2001. Under "Conclusions of Law," the Commissioner explained: "Carpal tunnel syndrome, even if caused by repetitive motion, is compensable as an accident under the Act." The Commissioner concluded:

Claimant suffered an injury by accident in January 2001 but did not report it until December 6, 2001. In the meantime, her condition became progressively worse such that ultimately it required a carpal tunnel release to both wrists. Although claimant had frequent conversations with her supervisor, she did not report her injury until eleven months thereafter which...