Barr v. Darlington Cnty. Sch. Dist.
| Decision Date | 07 April 2021 |
| Docket Number | Formerly Opinion 5815,2021-UP-306 |
| Parties | Kenneth L. Barr, Claimant, Appellant, v. Darlington County School District, Employer, and S.C. School Boards Insurance Trust, Carrier, Respondents. Appellate Case No. 2018-001237 |
| Court | South Carolina Court of Appeals |
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.
Heard February 2, 2021
Withdrawn, Substituted, and Refiled August 25, 2021
Appeal From The Workers' Compensation Commission
Preston F. McDaniel, of McDaniel Law Firm, of Columbia; and Gerald Malloy, of Malloy Law Firm, of Hartsville, both for Appellant.
Kirsten Leslie Barr, of Trask & Howell, LLC, of Mount Pleasant, for Respondents.
Stephen B. Samuels, of Samuels Reynolds Law Firm, of Columbia, for Amicus Curiae, Injured Workers' Advocates.
In this workers' compensation action, Kenneth L. Barr (Employee) appeals the decision of the Appellate Panel of the South Carolina Workers' Compensation Commission denying his claim for medical and compensation benefits for alleged injuries he argues resulted from exposure to volatile organic compounds (VOCs) in paints he used while working for the Darlington County School District (Employer). We affirm.
Employee began working as a painter for Employer on May 27, 2009. Before this employment, Employee worked as a commercial painter for a nuclear plant and as a house painter on a self-employed basis, and had other nonpainting jobs. Employee painted both inside and outside Employer's school buildings with a schedule consisting of five eight-hour days during the school year and four ten-hour days in the summer.
Approximately one year after Employee began work for Employer, in June of 2010, he reported to his primary care physician, Dr. Raymond Chapman, that he had experienced headaches for the past four weeks. After a CT scan did not reveal an abnormality, Dr Chapman treated Employee over the course of several years as Employee continued to report headaches, as well as anxiety and other ailments. Dr. Chapman noted Employee was "[a] very complicated patient with numerous medical issues."
Employee reported a specific incident during his employment that occurred on March 16, 2015, in which he experienced a severe headache, dizziness, disorientation, and left hand pain. The incident occurred when Employee had not painted yet that day, but was driving to a store to purchase supplies. He testified he became disoriented, and after returning his work vehicle, his wife drove him to the emergency room and he was admitted to the hospital. A CT scan showed no evidence of an abnormality.
Employee saw various specialists and reported chronic headaches and other health concerns. Employee sought treatment with Dr. Marshall White, a private practice neurologist, in late 2012, for severe headache and back pain. About two years later, Employee again sought treatment from Dr. White, reporting "severe headache, memory loss, fatigue, confusion, and disorientation." On May 21, 2015, Dr. White diagnosed Employee with brain damage related to his exposure to VOCs in the paints he used. In his report dated October 21, 2015, Dr. White stated Employee "suffered an encephalopathic condition which has led to severe permanent brain damage," and Employee "is totally and permanently disabled and unsuited for any rehabilitation that would enable him to re-enter the workforce."
Employer denied Employee had any injury to his brain or nervous system, denied Employee's psychological issues were related to his employment, and stated his working conditions caused neither repetitive nor traumatic injury and that Employee had not shown the required elements of an occupational disease. Employer noted Employee admitted he worked in a ventilated area, used a respirator, and painted with a brush and roller, not a sprayer. Employer asserted Dr. White's opinion of brain damage was unsupported by evidence and speculative. Employer noted Dr. Nicholas Lind, who performed neuropsychological testing on Employee, found no evidence of memory or processing speed deficits. Employer asserted Employee's headaches predated his employment with Employer as did his complaints of fatigue and other psychological issues.
Dr. Paul Pritchard, a neurologist at the Medical University of South Carolina, performed an independent medical examination of Employee on February 2, 2016, and reviewed Employee's medical records on behalf of Employer. Dr. Pritchard did not find evidence of encephalopathy in Employee and stated Employee's neurological exam was normal:
The records of Dr. William Woodberry, who saw Employee in 2005, approximately four years before Employee began working for Employer, include the following:
Dr. Roland Skinner, a neurologist, opined, in part, that Employee's headaches were tension headaches and noted:
Dr. Joseph Healy, another physician who examined Employee, opined Employee's exposure to VOCs in paint did impact his health, but as one of a number of other factors:
[M]y impression with this guy is that he is a heavy smoker, but to compound his pulmonary problems is his exposure to the VOCs and so he has two pulmonary insults. He has an abnormal blood gas which is essentially his oxygen level was just probably a little bit low, but his carbon dioxide level is too high, so he's retaining carbon dioxide, which you know, causes the brain to not totally function properly. It's a metabolic problem. But I do that think his exposure to the VOCs combined with his [metabolic problem] has caused him to have pulmonary problems which lead [to] other problems.
Dr. Healy also performed a sleep study in April 2016, which revealed "severe obstructive sleep apnea syndrome." Dr. Healy testified: "[H]e had severe sleep apnea,[[1]] and so, I mean, in anybody that has headaches, you got to correct your sleep, you got to correct breathing and then, too, it showed that he was a kicker."[2]
In addition, Dr. White, Employee's neurologist, acknowledged in his deposition in 2016 that evidence of brain damage is difficult to show: "Not everything that we can evaluate or see in neurology can be assessed in the living patient." Dr. White further provided: "And since so many people are wanting objective evidence of problems where there's scant objective evidence, unfortunately at this time neuropsych[ological] testing is the best objective measure we have for evaluating patients with encephalopathic conditions." Dr. White also testified he did not know anything about the environment Employee worked in or the personal protective equipment he used. Dr. White noted his opinion was:
On June 19, 2015, Employee filed a claim with the Commission for benefits and medical treatment, asserting a date of injury of May 21, 2015. On October 1, 2015,Employee filed a second claim and requested a hearing before a single commissioner. In a third Form 50, filed in May 2016, Employee requested a hearing and sought benefits and medical treatment. After a hearing on August 31, 2016,the single commissioner denied medical and compensation benefits, finding the weight of the evidence did not support Employee's claims. On June 5, 2018, the Appellate Panel affirmed the single commissioner's order, adopting verbatim the single commissioner's findings of fact and conclusions of law. This appeal followed.
"The findings of an administrative agency are presumed correct and will be set aside only if unsupported by substantial evidence." Hall v. United Rentals, Inc., 371 S.C. 69, 79, 636 S.E.2d 876, 882 (Ct. App. 2006).
The Administrative Procedures Act (APA) provides a reviewing court "may reverse or modify the decision [of the Commission] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences conclusions, or decisions are . . . affected by other error of law [or] clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record."
Frampton v. SCDNR, 432 S.C. 247, 256, 851 S.E.2d 714, 719 (Ct. App. 2020) (quoting S.C. Code Ann. § 1-23-380(5)(d), (e) (Supp. 2019)), cert. pending.
Our supreme court has defined substantial evidence as "not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but . . . evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached or must have reached in order to justify its action."
Id. at 257, 851 S.E.2d at 719 (quoting Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981)).
The final determination of witness credibility and the weight to be accorded evidence is reserved to the appellate panel. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. Where there are...
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