Benjamin v. Rexam Beverage Can Co.
| Decision Date | 01 September 2021 |
| Docket Number | 2021-UP-314,Appellate Case 2018-000965 |
| Parties | Victor G. Benjamin, Employee, Appellant, v. Rexam Beverage Can Company d/b/a Rexam Beverages, Employer, and Hartford Insurance Company of the Midwest c/o Sedgwick CMS, Carrier, Respondents. |
| 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 March 1, 2021
Appeal From The Workers' Compensation Commission
Jeffrey Christopher Chandler, of Chandler Law Firm, of Myrtle Beach, and Stephen Benjamin Samuels, of Samuels Reynolds Law Firm, LLC, of Columbia, for Appellant.
Jason Wendell Lockhart, of Columbia, and Helen F. Hiser, of Mount Pleasant, both of McAngus Goudelock & Courie, LLC, for Respondents.
In this workers' compensation appeal, Appellant Victor Benjamin was hurt while operating within the scope of his employment with Respondent Rexam Beverages. Appellant argues the Appellate Panel of the South Carolina Workers' Compensation Commission (the Commission) erred by (1) denying him lifetime benefits for his physical brain damage; (2) finding he failed to prove that he is an incomplete quadriplegic; and (3) denying his request for a mobility scooter. We reverse.
Appellant worked for Rexam Beverages[1] for over thirty years. At the time of his workplace accident, he was a cupper operator. On June 5 2011, while Appellant was operating within the scope of his employment as a cupper operator, a thirty-pound metal object dislodged from the cupper and fell on his head and shoulder. The metal object fell approximately twenty to thirty feet and knocked Appellant unconscious for approximately eight to ten minutes. He was forty-nine years old at the time of the accident.
Appellant was taken to the hospital and admitted into the intensive care unit. He was diagnosed with a left parietal skull fracture, closed head injury with concussion, and a right forearm injury (possible tendon and nerve injury). The attending physician noted that Appellant had a headache and complained of dizziness and both his upper and lower extremities had normal bulk and tone, "with a 5/5 strength in the left grip, both biceps, triceps, deltoids iliopsoas, quadriceps, hamstrings, gasiroc, and anterior timbales motor groups." Further, Appellant was unable to straighten his fingers. After undergoing surgery for the arm injury, he was released from the hospital on June 17, 2011. He returned to the hospital on June 24, 2011, citing significant headaches, lightheadedness, and dizziness.
On September 16, 2011, Appellant began treatment for his brain and spinal cord injuries with neurologist Dr. George Sandoz. Dr. Sandoz's initial report indicated that Appellant had moderate symptoms related to his head injury, neck pain, and dizziness. The results of Appellant's physical examination were as follows: moderate distress well-nourished, well-developed; muscle spasms in cervical and lumbar spines; alert and oriented with grossly normal intellect; memory intact; cranial nerves intact; normal motor reflexes; normal spinal accessory; no sensory loss; no motor weakness; balance and gait intact; coordination intact; and normal fine motor skills. Dr. Sandoz noted that Appellant had difficulty with ambulation and needed assistance with "activities of daily living."
At some point during the course of Dr. Sandoz's early treatment of Appellant, Appellant began having seizures, with the last one occurring in February 2012. Dr. Sandoz prescribed Appellant medication that stopped the seizures with no apparent side effects. By September 2012, Dr. Sandoz listed Appellant's dizziness as severe and his loss of consciousness as moderate.
On June 19, 2015, Dr. Sandoz provided Appellant's requisite impairment ratings based on the "AMA Guidelines Sixth Edition," writing:
As a result of this injury, the patient has suffered cervical disc injury that has left him with myelomalacia and he has been undergoing care by Dr. Poletti. I agree with the impairment rating given from the spinal cord injury and from the spinal cord lesion that he has. From the neurological standpoint, the patient has also been complaining of [] headache[s]. [Because of these] headache[s] . . . the patient has 4% impairment of the whole body. The patient has also [] suffered a traumatic brain injury with late effect of this injury associated with the headaches, seizure, posttraumatic stress disorder, and lumbar pain. From the injury that the patient has suffered a traumatic brain injury, the patient suffers a 29% impairment of the whole body . . . . From the seizure standpoint, the patient had like 34% impairment of the whole body. Utilizing a combined value chart, this translates to 54% impairment of the whole body.
Dr Sandoz later noted that Appellant had "suffered physical brain damage the severity of which renders him incapable of returning to any form of gainful employment." Further he was of the opinion that Appellant's spinal cord injury qualified as "incomplete quadriparesis or a form of incomplete quadriplegia."
In January 2013, Appellant began treatment for his spinal cord injury with neurosurgeon Dr. Karl A. Lozanne. At his initial visit, Dr. Lozanne noted Appellant:
[C]ontinued to struggle with headaches, neck pain, right-sided Interscapular and shoulder pain that radiates down into his right arm. He has developed difficulties with his balance and has had numbness and tingling worse on the right than the left. He has developed weakness in the right upper extremity. He denies any urinary or bowel symptoms. He has been managed with oral analgesics, physical therapy and more recently epidural steroid injection. The epidural steroid injections initially were effective at relieving his right-sided arm discomfort but the pain has returned. He underwent an MRI of the cervical spine which revealed significant cervical stenosis with disc/osteophyte complexes as well as what appeared to be spinal cord signal change.
Dr. Lozanne then noted that Appellant was awake, alert, and oriented with normal and appropriate speech, while his motor functions were "4+/5 in the right deltoid, bicep, tricep, hand intrinsics[, ]" and 5/5 in all other muscle groups. Dr. Lozanne "recommended surgical intervention in the form of an anterior cervical discectomy and plated fusion at C4-5, C5-6 and C6-7." It was his opinion that the C3-4 level did not require any surgical intervention at that time.
Dr. Lozanne performed the recommended surgery on February 18, 2013. In August 2013, Dr. Lozanne noted that the "initial improvement that was made after surgery [was] no longer present." He noted that Appellant felt his imbalance persisted and that Appellant ambulated with the aid of a cane. Further, an MRI of his right shoulder revealed shoulder pathology. Dr. Lozanne sent Appellant to a shoulder specialist and stated that he did not feel Appellant needed new imaging studies of his cervical spine at that time. He recommended Appellant remain out of work. Then on November 11, 2013, Dr. Lozanne examined Appellant and noted that he continued to struggle with difficulties from his spinal cord injury but was better than his preoperative condition. Dr. Lozanne advised that he did not feel Appellant was at maximum medical improvement (MMI) in regards to his cervical spine and spinal cord injury and requested to examine Appellant again in February 2014, which was one year after his February 2013 surgical procedure.
On January 21, 2014, Appellant received unauthorized treatment from spinal surgeon Dr. Steven C. Poletti. Dr. Poletti noted that Appellant had "gotten worsening stenosis or progressing cervical stenosis at the C3-4 level where there [was] noted to be edema changes in the cord, some measure of settling and posterior disc bulging at the C3-4 level with spinal cord compression with high signal in the cord at the C3-4 level." Dr. Poletti recommended surgery, stating he believed surgery was not likely to improve Appellant's condition but may stop it from worsening. Dr. Poletti performed the C3-4 level surgery on February 13, 2014. Following the surgery, Dr. Lozanne released Appellant from his care.
Appellant continued his treatment for his spinal cord injury with Dr. Poletti. On May 27, 2015, Dr. Poletti wrote that Appellant had impairment "in addition from the spinal cord injury . . . not only from the fusion but from the myelomalacia or spinal cord compression." He noted Appellant was "limited to level surfaces of walking and has criteria for impairment due to station and gait disorder, and he does not have digital dexterity in his hands as a consequence of the injury." Dr. Poletti assigned Appellant a 67% whole person impairment rating.[2] Dr. Poletti noted that Appellant had a "form of spinal cord injury or incomplete quadriplegia, and this is the rationale behind him having this level of disabling impairment and injury."
On July 22, 2016, Dr. Lozanne performed a final evaluation of Appellant. He noted Appellant had "no incontinence, no difficulty urinating, no hematuria, and no increased frequency." Additionally, he wrote that Appellant was awake, alert, answering questions, and had the same positive motor strength as previously documented. Dr. Lozanne assigned a whole person impairment rating for the cervical fusion of 28% under DRE Category IV. For the spinal cord injury, he assigned 19% for the cortical spinal tract impairment and 19% for the "bilateral upper extremity involvement & station and gait." The combined whole person impairment rating equaled 53%. Dr. Lozanne opined that Appellant suffered from an incomplete spinal cord injury, but disagreed with Dr. Poletti that Appellant suffered from...
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