Clark v. Aiken County Government

• Decision Date: 12 September 2005
• Docket Number: No. 4023.,4023.
• Citation: 620 S.E.2d 99
• Court: South Carolina Supreme Court
• Parties: Joseph Mark CLARK, Sr., Respondent, v. AIKEN COUNTY GOVERNMENT & South Carolina Property and Casualty Insurance Guaranty Association, formerly Legion Insurance Company, Appellants.

Page 99

620 S.E.2d 99

Joseph Mark CLARK, Sr., Respondent, v. AIKEN COUNTY GOVERNMENT & South Carolina Property and Casualty Insurance Guaranty Association, formerly Legion Insurance Company, Appellants.

No. 4023.

Court of Appeals of South Carolina.

Heard June 7, 2005.

Decided September 12, 2005.

Mark D. Cauthen and R. Daniel Addison, both of Columbia, and David A. Wilson and Michael Allen Farry, both of Greenvile, for Appellants.

Franklin D. Beattie, Jr., of Georgetown, for Respondent.

CURETON, A.J.:

This is a workers' compensation case involving an award based on change of condition. The Workers' Compensation Commission found that Joseph Mark Clark, Sr. sustained a change of physical condition resulting in permanent and total disability, and the circuit court affirmed. We affirm as well.

FACTS

The parties stipulated that Clark sustained an injury on July 12, 1999 in an accident arising out of and in the course of his employment with Aiken County. Clark twisted his lower back while attempting to unhook a trailer from a vehicle. The parties also stipulated to an average weekly wage and compensation rate.

In the original proceeding, the single commissioner found Clark reached MMI on January 20, 2000 and that he had sustained a 30% permanent partial disability as a result of the accident. He awarded benefits accordingly. Clark then appealed to the full commission. In his brief to the full commission, he requested, inter alia, that Dr. Martin Greenberg be designated his treating physician "to provide alternative medical treatment."

While the case was pending before the full commission, Clark's pain increased. Clark was seen by Dr. John Downey who, along with Clark's attorney, referred him to Dr. Greenberg. Dr. Greenberg recommended surgery to Clark's back and performed the surgery on July 27, 2001. Clark did not get permission from the County for Dr. Greenberg to treat him or perform the surgery.

On August 10, 2001 the County tendered and Clark in turn accepted payment of the monetary benefits awarded by the single commissioner.

On October 9, 2001, the full commission affirmed the single commissioner's order, adopting verbatim his findings of fact and conclusions of law. The full commission did not address the issue of whether Clark's condition had changed since he reached MMI, nor did the full commission address the request in Clark's brief that Greenberg be appointed his treating physician.

The surgery successfully alleviated Clark's pain for about four to six months. Then the pain returned, although it was not as severe. After examining Clark again, Dr. Greenberg determined that Clark was permanently vocationally disabled. Clark has not worked since March of 2000 when the County retired him based on disability.

In January 2002, Clark filed a Form 50 claiming a substantial change of condition. The single commissioner concluded that Clark sustained a worsening of his condition and had an impairment of more than 51% to his back. The single commissioner further concluded that the change in physical condition occurred after August 14, 2001. Accordingly, he awarded Clark benefits for total and permanent disability. The single commissioner also specifically found that the treatment by Dr. Greenberg was "necessary, reasonable and was an attempt to lessen [Clark's] disability." He ordered the County to pay for all past and continuing treatment provided to him.

The County appealed to the full commission, which again affirmed, adopting the findings and conclusions of the single commissioner. The circuit court also affirmed. This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act governs judicial review of a decision of an administrative agency. S.C.Code Ann. §§ 1-23-310 to 400 (Supp.2004). Section 1-23-380(A)(6) establishes the substantial evidence rule as the standard of review. Lark v. Bi-Lo, Inc., 276 S.C. 130, 134, 276 S.E.2d 304, 306 (1981). Under this standard, a reviewing court may reverse or modify an agency decision based on errors of law, but may only reverse or modify an agency's findings of fact if they are clearly erroneous. S.C.Code Ann. § 1-23-380(A)(6)(d) and (e).

Accordingly, a reviewing court may not substitute its judgment for that of the full commission as to the weight of the evidence on questions of fact. Stephen v. Avins Constr. Co., 324 S.C. 334, 337, 478 S.E.2d 74, 76 (Ct.App.1996). Instead, review of issues of fact is limited to determining whether the findings are supported by substantial evidence in the record. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 610-11 (Ct.App.2004). "On appeal, this court must affirm an award of the Workers' Compensation Commission in which the circuit court concurred if substantial evidence supports the findings." Solomon v. W.B. Easton, Inc., 307 S.C. 518, 520, 415 S.E.2d 841, 843 (Ct.App.1992). "Substantial evidence is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached to justify its action." Howell v. Pacific Columbia Mills, 291 S.C. 469, 471, 354 S.E.2d 384, 385 (1987).

LAW/ANALYSIS

I. Change of Condition

The County's first contention on appeal is that Clark failed to prove a change of condition entitling him to additional compensation. Specifically, the County argues that because the change of condition asserted by Clark occurred before the full commission issued its order in the initial proceeding, the change could not have occurred subsequent to the first award. We disagree.

Initially, Clark argues that the County failed to preserve this argument for appeal. In its request for review by the full commission, the County stated as grounds for appeal, in relevant part, that the single commissioner erred in finding as a fact and concluding as a matter of law that Clark sustained a change of condition for the worse. Clark argues that this assignment of error is not specific enough to preserve the argument for appeal.

An issue not raised in the application for review is not preserved for the full commission's consideration. Creech v. Ducane Co., 320 S.C. 559, 564, 467 S.E.2d 114, 117 (Ct.App.1995). General exceptions that fail to specifically assign the grounds for error are insufficient to preserve an issue. Bogart v. First Citizens Bank & Trust Co., 273 S.C. 179, 180, 255 S.E.2d 449, 450 (1979). However, rules of appellate procedure should not be interpreted to create a trap for the unwary. Elam v. S.C. Dep't of Transp., 361 S.C. 9, 25, 602 S.E.2d 772, 780 (2004). Although we find preservation tenuous at best, we nevertheless proceed to the merits.

The Workers' Compensation Act provides a mechanism for reopening an award if there has been a change in condition. Creech, 320 S.C. at 564, 467 S.E.2d at 117; S.C.Code Ann. § 42-17-90 (1985). The purpose of this section is to enable the full commission to change the amount of compensation, including increasing compensation when circumstances indicate a change of condition for the worse. Cromer v. Newberry Cotton Mills, 201 S.C. 349, 354-55, 23 S.E.2d 19, 21 (1942). Accordingly, the full commission has continuing jurisdiction over its awards for the period set forth in section 42-17-90. Id.

Under section 42-17-90, a change of condition must occur after the first award for a claimant to be eligible for a review of that award. Cromer, 201 S.C. at 357, 23 S.E.2d at 21. "The issue before the Commission is sharply restricted to the question of extent of improvement or worsening of the injury on which the original award was based." Gattis v. Murrells Inlet VFW # £10420, 353 S.C. 100, 109, 576 S.E.2d 191, 196 (Ct.App.2003) (quoting Krell v. S.C. State Hwy. Dep't, 237 S.C. 584, 118 S.E.2d 322 (1961)); 5 Arthur Larson, Larson's Workers' Compensation Law § 131.03 (2004).

The County's argument appears to resemble a species of claim preclusion, though the County does not refer to it as such. Basically, the County argues that because an award by a single commissioner is not a final adjudication unless neither party appeals to the full commission, the change of condition must occur after review of the initial award by the full commission is completed. See Riddle v. Fairforest Finishing Co., 198 S.C. 419, 424, 18 S.E.2d 341, 343 (1942) (holding that because the single commissioner's award is not a final adjudication, a party may not appeal directly to the circuit court). In other words, under principles of res judicata, Clark is precluded from asserting a change of condition following the full commission's order because he could have asserted it before the full commission in the original claim.

The doctrine of res judicata ordinarily acts to preclude relitigation of issues or claims actually litigated or which might have been litigated in the first action. Estridge v. Joslyn Clark Controls, Inc., 325 S.C. 532, 540, 482 S.E.2d 577, 581 (Ct.App.1997). Nevertheless, a final judgment or award is not res judicata of issues neither asserted nor required to be asserted "or which could not properly be asserted." 101 C.J.S. Workers' Compensation § 1499 (2000) (emphasis added).

Our supreme court, citing Restatement (Second) of Judgments, section 20(2) (1982), has held that res judicata is not always an ironclad bar to a later claim:

A valid and final personal judgment for the defendant, which rests on the prematurity of the action or on the plaintiff's failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or after the precondition has been satisfied, unless a second action is precluded by operation of the substantive law.

Likewise, this court stated in Estridge that a symptom which is "present and causally connected, but found not to impact upon the claimant's condition at the time of the original award, may later manifest in full bloom and thereby worsen his or her condition. Such an occurrence...