Collins v. Dodson Brothers Exterminating Co., 2007-UP-388

• Court: Court of Appeals of South Carolina
• Parties: Michael Collins, Employee, Respondent, v. Dodson Brothers Exterminating Company, Employer; and Birmingham Fire Insurance Company, Carrier, Appellants.
• Decision Date: 24 September 2007
• Docket Number: 2007-UP-388

Michael Collins, Employee, Respondent,
v.
Dodson Brothers Exterminating Company, Employer; and Birmingham Fire Insurance Company, Carrier, Appellants.

No. 2007-UP-388

Court of Appeals of South Carolina

September 24, 2007

Unpublished Opinion

Heard September 12, 2007.

Appeal From Horry County B. Hicks Harwell, Jr., Circuit Court Judge

E. Ros Huff, Jr., of Irmo, for Appellants.

Craig A. Snook, of Myrtle Beach, for Respondent.

PER CURIAM:

In this workers' compensation action, Dodson Brothers Exterminating Company and Birmingham Fire Insurance Company (collectively Dodson) appeal the finding of the Workers' Compensation Commission's Appellate Panel that Michael Collins was permanently and totally disabled. We affirm.

FACTS

Collins worked at Dodson as a manager. On October 16, 1996, Collins's supervisor, Jim Vaughn, told Collins to dispose of a pest control product called Phostoxin by dissolving it in a bucket of water. When Collins did this, a chemical reaction occurred, converting the Phostoxin into a gas, which Collins accidentally inhaled. Shortly thereafter, Collins began to experience health problems. Ultimately, following a MRI, Dr. Jerry Schexnayder diagnosed Collins with avascular necrosis, a disease where the bone experiences a loss of blood supply resulting in bone tissue dying and eventually collapsing.

In 1998, Collins had his left hip replaced. In a report dated February 7, 2001, Dr. Schexnayder found Collins achieved maximum medical improvement for his left hip and gave him a seventy-five percent impairment rating for the lower left extremity. On December 4, 2001, Dr. Schexnayder also replaced Collins's right hip. In a report dated April 15, 2002, Dr. Schexnayer determined Collins was at maximum medical improvement for his right hip and gave him a seventy-five percent impairment rating for his lower right extremity.

On August 24, 2000, Collins initially filed a workers' compensation claim alleging he was totally and permanently disabled as a result of inhaling the Phostoxin gas. On December 9, 2003, the single commissioner held a hearing on the matter and determined Collins was permanently and totally disabled. Dodson appealed, and the Appellate Panel affirmed the single commissioner and adopted the single commissioner's findings of fact and conclusions of law. Dodson appealed, and the circuit court affirmed the Appellate Panel's decision. This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions by the Appellate Panel. Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). Under the scope of review established in the APA, this court may not substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact, but may reverse where the decision is affected by an error of law. Stone v. Traylor Bros., Inc., 360 S.C. 271, 274, 600 S.E.2d 551, 552 (Ct. App. 2004).

The substantial evidence rule governs the standard of review in a workers' compensation decision. Frame v. Resort Servs. Inc.,357 S.C. 520, 527, 593 S.E.2d 491, 494 (Ct. App. 2004). The Appellate Panel's decision must be affirmed if supported by substantial evidence in the record. Shuler v. Gregory Elec., 366 S.C. 435, 440, 622 S.E.2d 569, 571 (Ct. App. 2005). An appellate court can reverse or modify the Appellate Panel's decision only if the appellant's substantial rights have been prejudiced because the decision is affected by an error of law or is "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2006); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct. App. 2004).

"Substantial evidence" is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is 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

Lark, 276 S.C. at 135, 276 S.E.2d at 306.

"[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984). In workers' compensation cases, the Appellate Panel is the ultimate finder of fact. Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000). Where the evidence is conflicting over a factual issue, the findings of the Appellate Panel are conclusive. Hargrove v. Titan Textile Co.,360 S.C. 276, 290, 599 S.E.2d 604, 611 (Ct. App. 2004).

LAW/ANALYSIS

Dodson argues Collins failed to show by substantial evidence he is permanently and totally disabled under section 42-9-10 of the South Carolina Code (Supp. 2006).^[1] We disagree.

Under section 42-9-10, a claimant has three ways to obtain total disability. First, a claimant can be presumptively disabled.

The list of injuries included in the presumptive total disability category include: "[t]he loss of both hands arms, feet, legs, or vision in both eyes, or any two thereof constitutes total and permanent disability to be compensated according to the provisions of this section" or that claimant "is a paraplegic, a quadriplegic, or who has suffered physical brain damage. . . ."

Wigfall v. Tideland Utils., Inc.,354 S.C. 100, 105 n.4, 580 S.E.2d 100, 102 n.4 (2003) (quoting § 42-9-10) (alteration and omission by court). For these injuries, a claimant need not show a loss of earning capacity because the loss is conclusively presumed. Id. at 105, 580 S.E.2d at 102. Second, a claimant can show an injury that is not a scheduled injury under section...