Clemmons v. Lowe's Home Ctrs., Inc.

• Court: South Carolina Court of Appeals
• Writing for the Court: LOCKEMY, J.
• Citation: Clemmons v. Lowe's Home Ctrs., Inc., 412 S.C. 366, 772 S.E.2d 517 (S.C. App. 2015)
• Decision Date: 01 April 2015
• Docket Number: No. 5308.,Appellate Case No. 2013–001668.,5308.
• Parties: Henton T. CLEMMONS, Jr., Employee, Appellant, v. LOWE'S HOME CENTERS, INC.—HARBISON, Employer, and Sedgwick Claims Management Services, Inc., Carrier, Respondents.

412 S.C. 366

772 S.E.2d 517

Henton T. CLEMMONS, Jr., Employee, Appellant

v.LOWE'S HOME CENTERS, INC.—HARBISON, Employer, and Sedgwick Claims Management Services, Inc., Carrier, Respondents.

Appellate Case No. 2013–001668.

No. 5308.

Court of Appeals of South Carolina.

Heard Nov. 5, 2014.

Decided April 1, 2015.

Rehearing Denied June 19, 2015.

Certiorari Granted May 5, 2016.

Preston F. McDaniel, of McDaniel Law Firm, of Columbia, for Appellant.

Weston Adams, III, Kelly Fitzharris Morrow, and Helen Faith Hiser, all of McAngus Goudelock & Courie, LLC, of Columbia and Mount Pleasant, respectively; and M. McMullen Taylor, of Mullen Taylor, LLC, of Columbia, for Respondents.

Opinion

LOCKEMY, J.

In this appeal from the Appellate Panel of the South Carolina Workers' Compensation Commission, Henton Clemmons contends the Appellate Panel erred in (1) proceeding with a hearing to determine his permanent disability award over his objection, (2) not finding him permanently and totally disabled due to a compensable work-related back injury, (3) not making a separate award for myelopathy as a neurological injury, (4) not making a separate award for a low back injury, and (5) assigning great weight to the medical opinion of his authorized treating physician. We affirm.

FACTS

Clemmons works for Lowe's Home Centers as a cashier. On September 12, 2010, he entered a trailer at the store where he worked and slipped on wet straw, landing on his back, neck, and head. Clemmons was originally treated by Doctor's Care after he complained of low back pain radiating to his legs. Initial medical examinations diagnosed him with back strain, radiculopathy,¹ and right knee strain. After Clemmons's condition deteriorated, he was referred to Dr. Thomas Armsey of Midlands Orthopedics for further evaluation and treatment.

On November 1, 2010, Dr. Armsey's examination revealed acute ataxia.² In his report, Dr. Armsey recorded:

Clemmons and his mother report that he was a perfectly functional 38–year–old male until his work-related accident. Since that time his gait has been severely ataxic, he cannot dress because of poor balance, [and] has been bed ridden because of his inability to ambulate. He has had multiple falls because of his poor balance which is all reported as beginning September 12, 2010. He has had ventricular shunts³ placed as a child....

I am concerned about a brainstem or cerebellar lesion, possibly complications from his intraventricular shunts with his recent trauma. I am certain that his ataxia is not coming from his lumbar spine and his right knee has no mechanical abnormalities on clinical exam and therefore his sensation of instability is likely neurologic at the knee as well. I would recommend an immediate neurology or neurosurgery referral. He is essentially wheelchair bound [ ] and will not return to work until cleared by a neurosurgeon/neurologist.

Dr. Armsey referred Clemmons to Dr. Randall Drye, a neurosurgeon. A neurologic examination revealed Clemmons had normal strength and reflexes, but an MRI showed spinal cord compression from disk herniation. Dr. Drye diagnosed Clemmons with “herniated nucleus pulposus [ (herniated disc ) ] with cord compression and severe myelopathy,⁴ C5 and C7.”

On November 9, 2010, Clemmons underwent an anterior cervical discectomy and fusion of C5 and C7. After the surgery, Clemmons returned to the hospital complaining of poor sensation and control of his legs, and he was transferred to HealthSouth rehabilitation facility. By November 24, 2010, Clemmons had recovered 90% of normal sensation in his legs with only mild spasticity and reported no issues with pain. In a November 30, 2010 report, Dr. Drye stated:

When we met in the office initially and we garnered his history he clearly reported no prior history of significant neck or neurologic problems prior to a fall at work. This occurred, according to the patient, on 9/12/10 when he slipped on some straw in a trailer and impacted on his back and the back of his head. This mechanism of injury is completely consistent as the force and flexion of the head and neck can result in a tear in the vulnerable disc and subsequent herniation.... Clemmons'[s] condition was perhaps worsened by the fact that he has congenital stenosis of the spine but again by history, he reports no prior symptoms of radicular nature or spinal cord dysfunction. For that reason, I believe that within a reasonable degree of medical certainty, his disc herniations, spinal cord impingement and subsequent myelopathy as well as the intervening surgery were a direct result of his fall at work.

Following his inpatient rehabilitation, Clemmons continued with outpatient physical therapy. After completing physical therapy, Clemmons had “regained relatively normal function in the upper extremities with no major complaints of numbness, tingling or weakness”; however, mild residual spasticity affected his gait and balance.

On November 30, 2010, Clemmons filed a Form 50, alleging he sustained an injury to his “head, back[,] and legs” as a result of the work-related accident. Lowe's admitted Clemmons sustained a work-related injury to his low back and right knee and agreed to pay Clemmons temporary total disability benefits from the date of the accident until properly terminated. Lowe's, however, denied Clemmons suffered an injury to his head or left lower extremity and further denied the extent of Clemmons's injuries.

On February 2, 2011, the parties entered a consent order in which Lowe's agreed to accept the back, neck, and right knee as compensable injuries. Lowe's also agreed to pay Clemmons temporary total disability benefits from the date of the accident until properly terminated due to a finding of maximum medical improvement (MMI), a return to work, or agreement of the parties.

On June 7, 2011, Dr. Drye concluded Clemmons had reached MMI, assigning a 25% whole person impairment “based on [his] injury to the cervical spine including a subsequent fusion and mild myelopathic residual symptoms.” Thereafter, Lowe's asked Clemmons to provide a settlement demand pertaining to permanent disability. On September 22, 2011, Clemmons signed a Form 17, indicating he had returned to work with restrictions but at a salary not less than before the injury. He accepted a position with Lowe's as a cashier with accommodations allowing him to sit and request assistance as needed.

On January 4, 2012, Lowe's filed a Form 21 requesting a hearing to determine any compensation due for permanent total disability or permanent partial disability and requesting credit for overpayment of temporary benefits. In response to Clemmons's request for an additional medical evaluation, Lowe's withdrew its Form 21 request in order to provide for another evaluation from Clemmons's treating neurosurgeon, Dr. Drye.

On June 18, 2012, Dr. Drye examined Clemmons and reviewed recently performed magnetic imaging studies of Clemmons's lumbar spine and neck. Clemmons reported neck and back stiffness and pain experienced in the morning, which improved as he moved about. Dr. Drye characterized this pain as “axial,” “myofascial,” and suggestive of “arthritic-type symptoms.” Dr. Drye noted Clemmons had gained considerable weight and advised him that losing weight would likely help reduce his back pain. Dr. Drye stated Clemmons “denies any radicular symptoms down the leg and continues to have some altered gait from his previous myelopathy as well as a long-standing, pre-injury inversion to his right foot and ankle.” Dr. Drye concluded Clemmons had reached MMI and reaffirmed his earlier impairment rating of 25% whole person to the back.

Thereafter, Lowe's requested Clemmons “provide ... a settlement demand at [his] earliest convenience.” After it received no settlement demand, Lowe's filed another Form 21 request for overpayment of temporary benefits and to determine any permanent disability it owed Clemmons.

On September 5, 2012, Clemmons saw Dr. Howard Mandell, a neurologist, for an independent medical evaluation. Dr. Mandell noted Clemmons's “symptoms are stable now, not improving and not worsening for the past several months at least.” Dr. Mandell concluded Clemmons did not “require additional treatment concerning his injuries other than perhaps ongoing physical therapy for balance and gait.” Dr. Mandell also concluded there was “no indication” that Clemmons required further surgery. Finally, Dr. Mandell observed that Clemmons “still has spasticity in his legs, hyperreflexia, difficulty with coordination, inability to run[,] and difficulty with balance. I would say he is probably 85% better but still has this 15% neurological injury left over.”

On September 6, 2012, Clemmons saw Dr. Leonard Forrest of the Southeastern Spine Institute for another independent medical evaluation. Dr. Forrest noted Clemmons's hydrocephalus “[has] left him with some cognitive deficits, but overall otherwise he was doing physically well until [his work-related injury].” Dr. Forrest stated Clemmons had reached MMI and agreed with a twenty-five pound lifting restriction. Dr. Forrest assigned him a 30% permanent impairment rating for his neck and 10% for his “low-back related symptoms and problems[,]” resulting in a permanent impairment rating of “at least 40%.” Dr. Forrest concluded Clemmons's loss of function to his back “would be over 50%.”

On September 11, 2012, Clemmons saw physical therapist, Tracy Hill, for a functional capacity evaluation. According to Hill, Clemmons qualified for a whole person impairment rating of 28%, “which convert[ed] to a 80% cervical spine impairment.” She found that he also qualified for a whole person impairment rating of 8%, “which convert[ed] to a 11% lumbar spine impairment.”

Also on September 11, 2012, Clemmons received another independent medical evaluation by Dr. Gal Margalit of Sunset Family Practice. Dr. Margalit concurred with Dr. Drye's opinions concerning continuing work restrictions and weight loss. Dr. Margalit, however, disagreed with Dr....