Crisp v. Southco., Inc.
| Decision Date | 22 May 2013 |
| Docket Number | No. 27230.,27230. |
| Citation | 738 S.E.2d 835,401 S.C. 627 |
| Court | South Carolina Supreme Court |
| Parties | Michael D. CRISP, Jr., Employee, Petitioner, v. SOUTHCO., INC., Employer, and Pennsylvania National Mutual Casualty Insurance Co., Carrier, Respondents. Appellate Case No. 2010–180906. |
OPINION TEXT STARTS HERE
Kathryn Williams, of Greenville, for Petitioner.
Vernon F. Dunbar, of Turner Padget Graham & Laney, P.A., of Greenville, and Carmelo Barone Sammataro, of Turner Padget Graham and Laney, P.A., of Columbia, for Respondents.
Michael D. Crisp (Petitioner) petitioned this Court for a writ of certiorari to review the court of appeals' decision reversing the circuit court's finding that the Appellate Panel of the Workers' Compensation Commission (the Commission) erroneously determined that Petitioner suffered a compensable brain injury and physical brain damage as a result of an injury by accident while working for Respondent SouthCo., Incorporated (Employer). We reverse the decision of the court of appeals, and remand this action to the Commission for further consideration of whether Petitioner sustained physical brain damage, as contemplated under section 42–9–10(c) of the Workers' Compensation Act (the Act), which would entitle him to benefits for life.
Petitioner 1 worked for Employer hydra-seeding grass and performing odd construction jobs. On March 10, 2004, Petitioner and other workers were installing silt fencing to combat ground erosion. This task involved installing fence poles into the ground using the bucket of a Bobcat earthmover. On this particular day, Petitioner was holding a pole while another worker operated the Bobcat. As Petitioner bent down to reach for a pole, the bucket of the Bobcat fell on Petitioner, covering him.2 Petitioner stated he remembered running towards a truck at the jobsite, noticing that his right hand was broken and bleeding. Petitioner's co-workers also alerted him to a gash on the back of his head that was also bleeding. Petitioner was taken to the emergency room.
At the emergency room, Petitioner was treated for abrasions and bruises to the back of the head and neck and a complex fracture in his right hand. There is no mention of a brain injury in Petitioner's hospital records.
Petitioner required surgery to his right hand. Orthopedist James Essman performed the surgery and continued to treat Petitioner's hand injury. Dr. Essman's notes do not reflect any post-operative complaints regarding any brain injury or symptoms.3
One issue raised was [Petitioner] continues to have headaches.... [Petitioner's] wife questioned why he has not undergone MRI imaging of his head due to his persistent headaches. He did sustain a blow to the head in terms of his work injury and I guess this was not considered by prior evaluating physicians and we discussed this at some length today.
Therefore, Dr. Kopera diagnosed Petitioner with chronic cervical strain, chronic lumbar strain, and chronic headaches. In addition, Dr. Kopera stated “[Petitioner] appears neurologically intact but due to his persistent headaches it may be prudent to obtain an MRI scan of the brain to complete a thoroughevaluation.” The MRI scan of Petitioner's brain showed no abnormalities. After completing a Functional Capacity Evaluation, Dr. Kopera released Petitioner to return to work with restrictions, and noted Petitioner “report[ed] feeling depressed related to his current condition and this will take some adjustment.” 4
On April 12–13, 2005, Dr. Moss, a clinical psychologist, performed a neuropsychological evaluation on Petitioner at the request of Petitioner's attorney. Dr. Moss noted:
On the basis of the current examination, there are clear indications of deficits in verbal memory, attention, problem solving, and inhibition tied to his work injury. There are indications that he has likely experienced personality changes as a result of his injury ... [Petitioner] is experiencing psychological distress from his injuries as well. The exacerbation of obsessive-compulsive tendencies can also be associated with brain injuries involving the orbito-frontal area. This is often affected in head injury cases due to the irregular shape of the skull and olfaction is often affected since the olfactory bulbs are there. The current findings would be consistent with a frontal lobe injury.
Based on his examination, Dr. Moss diagnosed Petitioner with Cognitive Disorder [not otherwise specified], probable personality change due to head injury, obsessive compulsive disorder, traumatic brain injury, and poly-substance abuse 5 in full sustained remission. Dr. Moss further opined that Petitioner could benefit from a brain injury program.
On May 24, 2006, Dr. Thomas Collings, a neurologist, conducted an independent medical evaluation on Petitioner. Dr. Collings diagnosed Petitioner with a traumatic brain injury/closed head injury, defining a closed head injury as “trauma to the brain in a global way as opposed to ... a focal area of the brain ... caus[ing] symptoms in ... higher competent motions.” Based on his in-office examination of Petitioner, Dr. Collings expressed some reservation with regard to his diagnosis, but he stated that the neuropsychological examination was the “best information to support that there's ... significant change between this pre-and-post condition,” as it was a better indicator of brain injury than his office examination. Dr. Collings also expressed some hesitation in his diagnosis with respect to Petitioner's headaches, testifying that he would have difficulty finding any evidence to support a finding of physical brain injury had he not relied on Dr. Moss's findings. However, Dr. Collings ultimately concluded that Petitioner sustained a brain injury.
On November 15 and 28, 2005, Dr. David Price, a clinical psychologist, conducted a neuropsychological evaluation on Petitioner at the request of defense counsel. Dr. Price opined that Petitioner did not sustain a traumatic brain injury nor was there any objective medical evidence of a brain abnormality, such as an abnormal CT scan, MRI, or EEG. Dr. Price diagnosed Petitioner with pain disorder associated with psychological factors and a general medical condition, adjustment disorder with depressed mood, obsessive compulsive disorder, antisocial personality disorder, partner relational problem, and phase of life problem.
On March 6, 2006, nearly two years after his injury, Dr. Moss opined that Petitioner “sustained physical brain damage as a result of his work injury of [sic] March 10, 2004.”
At his deposition, Petitioner testified he began experiencing problems with his memory and difficulties mentally processing information, concentrating on more than one task, and keeping up with daily tasks in January 2005.6 Petitioner testified he desired to receive further treatment to “learn to cope with the ability to multitask and to remember things and stay focused.” Furthermore, Petitioner testified he suffered from depression since the accident, and he desired to receive treatment for this condition, as well. Petitioner testified he had not been able to obtain employment since the accident.
A hearing was convened before the Workers' Compensation Hearing Commissioner (the Single Commissioner) on March 22, 2006. At the hearing, Petitioner claimed he sustained injuries to his head, brain, neck, back, right upper extremity, and psyche as a result of the accident and sought continued temporary compensation benefits and continued medical treatment, including treatment in a traumatic brain injury program, and in the alternative, sought a finding that he was permanently and totally disabled and entitled to lifetime compensation benefits due to “physical brain damage.” Respondents conceded Petitioner sustained compensable injuries to his neck, back, and right upper extremity, but denied he sustained a brain injury and physical brain damage as a consequence of the work-related incident. Respondents further argued that Petitioner reached MMI on November 1, 2004, and sought a determination of permanent disability and credit for alleged overpayment of temporary disability compensation benefits.
By order dated August 1, 2006, the Single Commissioner found as fact, inter alia: (1) that approximately one year after the incident, Dr. Moss evaluated Petitioner and, using objective neuropsychological testing revealing cognitive deficits, diagnosed Petitioner with Cognitive Disorder [not otherwise specified], polysubstance abuse in full sustained remission, probable personality change due to head injury, exacerbated obsessive-compulsive disorder, traumatic brain injury, and “ physical brain damage ”; (2) that Dr. Collings's expert opinion was credible, including his testimony that he never saw an MRI or CT scan of Petitioner's brain, that cognitive problems usually start immediately after the injury, that the fact that Petitioner...
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