Brown v. Greenwood Mills, Inc.

• Decision Date: 24 October 2005
• Docket Number: No. 4034.,4034.
• Citation: 622 S.E.2d 546
• Court: South Carolina Supreme Court
• Parties: Edwin H. BROWN, Appellant/Respondent, v. GREENWOOD MILLS, INC., Respondent/Appellant.

622 S.E.2d 546

Edwin H. BROWN, Appellant/Respondent, v. GREENWOOD MILLS, INC., Respondent/Appellant.

No. 4034.

Court of Appeals of South Carolina.

Heard October 12, 2005.

Decided October 24, 2005.

Rehearing Denied December 15, 2005.

COPYRIGHT MATERIAL OMITTED

Linda Byars McKenzie, of Greenville, for Appellant-Respondent.

Roy R. Hemphill, of Greenwood, for Respondent-Appellant.

ANDERSON, J.:

The workers' compensation commission affirmed the order of the single commissioner awarding benefits to Edwin H. Brown (Brown) for an occupational lung disease, byssinosis, which Brown claims he developed from working with cotton for many years at Greenwood Mills, Inc. (Greenwood). The circuit court affirmed the commission's ruling that Brown's claim was within the statute of limitations, but declared the commission should have allocated a portion of Brown's disease to his long history of cigarette smoking, a non-compensable cause. Therefore, the circuit court remanded the case to the commission for allocation. Both parties appealed.

FACTUAL/PROCEDURAL BACKGROUND

Greenwood employed Brown from 1966 to 1982 and again from 1983 until 1998. As a Greenwood employee, Brown worked primarily with cotton in the carding, spinning, and preparation departments. While at work, he frequently was exposed to cotton dust. Brown, who smoked a pack of cigarettes a day for approximately forty-five years, stopped working in 1998 due to breathing problems.

Brown's respiratory difficulties started sometime around the early 1990s. At that time, Greenwood began performing two breathing tests a year on Brown in order to evaluate and monitor his breathing troubles. Although he quit smoking in February of 1995, Brown continued to suffer from shortness of breath, difficulty walking, and fatigue. In December 1997, Greenwood referred Brown to Dr. Cobb for treatment.

Dr. Cobb diagnosed Brown as having hyper-expanded lungs, a depressed diaphragm, and obstructive lung disease. Initially, Dr. Cobb opined that Brown's obstructive lung disease was "probably secondary to remote tobacco use with progressive airway obstruction." The doctor asseverated, "I do not think this is a specific reaction to his work environment." However, after additional testing showed Brown experienced drops "in his flow rates across the work shift," Dr. Cobb recommended that Greenwood remove Brown from work for three months to see if his absence from the job would ameliorate his condition. Brown's leave did improve his breathing. As Dr. Cobb wrote in his report of June 18, 1998:

Mr. Brown feels better. His exertional tolerance is slightly improved and he experiences less cough at the present time.

. . . .

The majority of his disease is emphysema related to his previous tobacco use. . . . In addition to the emphysema from smoking, however, he does have a component of industrial related broncospasm. I think this is more likely a nonspecific bronchitis than true byssinosis, but in any event, his underlying disease is exacerbated and has shown documented improvement on a period away from work and my recommendation is that he be removed from the present work space.

Brown did not work for Greenwood after 1998.

On December 4, 2001, Brown was treated at a Veterans' Administration Clinic in Augusta, Georgia. There, for the first time, he was diagnosed with byssinosis. The report from the VA Clinic records:

Assessment:

Hypertension. Not controlled

. . . .

Hx occupational exposure to cotton dust.44years. including carding and preparation.

Bysinnosis. hx chest tightness and pre and post shift changes in spirometry (reactivity)

Hx industrial noise exposure

Brown filed a Form 50 on February 14, 2002.

At the hearing, Greenwood presented the medical report of Dr. R.L. Galphin. Dr. Galphin believed Brown's disease "was most probably due to his long history of cigarette smoking, which may have been aggravated by exposure to respirable cotton trash dust and reactivity to that dust particularly in the latter part of his employment." He estimated that "70% of Mr. Brown's impairment is related to his long history of cigarette abuse and 30% may represent a worsening of the condition secondary to his exposure to dust in the cotton textile industry." However, Dr. Galphin never examined Brown. His opinion was based solely on a review of records from Greenwood and Dr. Cobb.

The single commissioner issued an order, which stated:

After reviewing all of the evidence in the case, it is the finding of the undersigned that the claimant's respiratory disease arose out of and in the course of his employment; said disease was due to hazards of the employment which are excess of hazards normally incident to normal employees. The disease is peculiar to the textile mill wherein they were running cotton products. There have been numerous cases of chronic obstructive pulmonary disease (byssinosis) arising out of inhalation of the organic or inorganic dust in the textile industry. See, Hanks v. Blair Mills, Inc., 286 S.C. [3]78, 335 S.E.2d 91 (1985)[.] The hazards causing this condition are peculiar to the textile industry in which the claimant was employed for many years. Based on the opinions of the doctors at the VA Clinic, it is found that the claimant's respiratory disease was a result of the exposure to cotton dust and trash in his employment. The conditions of his exposure are peculiar to his employment. Most particularly, his pre and post work pulmonary function studies, done by the employer, show he was having a reaction to the environment. Further, the doctors at the VA Clinic opined he had severe COPD as a result of many years of textile work.

The commissioner found that the statute of limitations had not run prior to the filing of Brown's claim because he was not definitively diagnosed with byssinosis until December 4, 2001. Indeed, Dr. Cobb, in 1998, had suggested, "this is more likely a nonspecific bronchitis than true byssinosis," and that "[h]is primary disease is emphysema related to underlying previous tobacco use."

The appellate panel affirmed the single commissioner's ruling with the following language:

In an Appellate Review, the Commission has the power to weigh the evidence as presented at the initial hearing, and, after careful review in the instant case, the Commission, by unanimous vote, has determined that all of the Hearing Commissioner's Findings of Fact and Rulings of Law are correct as stated. Accordingly, they shall become, and hereby are, the law of the case; and, therefore, the Order is sustained in its entirety.

Greenwood appealed to the circuit court arguing (1) the statute of limitations had run on Brown's claim, and (2) the panel erred in failing to determine the proportion of Brown's disability allocable to non-compensable causes—i.e., smoking—pursuant to sections 42-11-90 and -100 of the South Carolina Code. The circuit court affirmed the panel as to the finding that the claim was within the statute of limitations, but reversed on the award of benefits:

In this case, the record is replete with evidence of the Claimant's forty-five (45) year history of smoking, a non-compensable cause, and its effect on his lungs. Even if the Commission dismissed Dr. Galphins's opinion as not being credible, Dr. Cobb's June 19, 1998 opinion that the majority of Claimant's lung disease was non-compensable cannot be ignored. Indeed, the employer does have the burden of proving not only the interplay of a non-compensable cause, but also its proportion to the overall disability. Hanks v. Blair Mills, Inc., 286 S.C. 378, 335 S.E.2d 91 (Ct.App.1985). In this case, the employer clearly met that burden, and no substantial evidence exists in the record to support the Commission's findings to the contrary. As such, in light of the statutes' mandatory language, the employer was entitled to a determination of the proportion allocable to the non-compensable cause, smoking, and a corresponding reduction of compensation owed to the Claimant.

Accordingly, the circuit court remanded the case to the commission "with the specific direction to make the necessary findings as to the apportionment between compensable versus non-compensable causes, and a corresponding reduction in the Claimant's disability award."

LAW/ANALYSIS

I. Appealability

Greenwood asserts, as a threshold matter, that the circuit court's order remanding the case to the commission is interlocutory and not immediately appealable. We disagree.

The rule governing the appealability of a circuit court order remanding a case to the commission is set forth in Montjoy v. Asten-Hill Dryer Fabrics, 316 S.C. 52, 446 S.E.2d 618 (1994):

S.C.Code Ann. § 1-23-390 (1986) provides:

An aggrieved party may obtain a review of any final judgment of the circuit court under this article by appeal to the Supreme Court. The appeal shall be taken as in other civil cases.

Accordingly, we have consistently held that an order of the circuit court remanding a case for additional proceedings before an administrative agency is not directly appealable. Owens v. Canal Wood Corp., 281 S.C. 491, 316 S.E.2d 385 (1984); Hunt v. Whitt, 279 S.C. 343, 306 S.E.2d 621 (1983).

Montjoy, 316 S.C. 52, 446 S.E.2d 618.

The question here is whether the circuit court order is a "final judgment" under section 1-23-390. Generally, an order is a final judgment on one or more issues if it constitutes an ultimate decision on the merits. In Owens v. Canal Wood Corp., 281 S.C. 491, 316 S.E.2d 385 (1984), one of the two cases cited by the Montjoy court, the supreme court found "[t]he order of the circuit court does not involve the merits of the action. It is therefore interlocutory and not reviewable by this Court for lack of finality." Owens, 281 S.C. at 492, 316 S.E.2d at 385 (emphasis added) (citations omitted). Similarly, in Hunt v. Whitt, 279 S.C. 343, 306 S.E.2d 621 (1983), the supreme court held that "[b]ecause the interlocutory order of the circuit court does not...