Dew v. Santee Cooper
| Decision Date | 03 October 2007 |
| Docket Number | 2007-UP-404 |
| Parties | Willie J. Dew, Employee, Respondent, v. Santee Cooper, Employer, through South Carolina Public Service Authority, Carrier, Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.
Submitted September 1, 2007
Appeal From Florence County B. Hicks Harwell, Jr., Circuit Court Judge.
Kirsten Leslie Barr, of Mt. Pleasant, for Appellant.
Joseph T. McElveen, Jr., of Sumter, for Respondent.
This action originated from a workers' compensation claim filed by Willie Joe Dew against his employer, Santee Cooper. Santee Cooper appeals the decision of the Appellate Panel of the Workers' Compensation Commission, which found Dew's injuries to his right knee and back were compensable and ordered payment by lump sum to be allocated over Dew's lifetime. We affirm.
On April 30, 2001, Dew was in the process of loading two vehicles onto a low-boy trailer when his right leg gave way causing him to fall backwards off the trailer. The low-boy trailer was approximately three and one half feet tall. Dew worked about three hours prior to the accident on April 30th.
Following his fall, Dew went to the emergency room, which recorded right knee and right hip injuries. Santee Cooper's physician, Dr. Marcus Schaefer, examined Dew on the day of the fall. Dr. Schaefer recorded that Dew fell backwards off of the low-boy and diagnosed him with a right knee strain, a right hip strain, and a contusion.
The first report for Workers' Compensation, Form 12A, was submitted following the accident. Subsequently, Dew received temporary compensation, which was interrupted multiple times when Dew attempted to return to work. Dew filed a claim by submitting a Form 50 on April 25, 2003, which listed injuries to his back, right leg, right hip, and right testicle, as well as psychological effects from the fall on April 30 2001. Santee Cooper filed a Form 21, requesting a hearing to stop payment of compensation.
The single commissioner held a hearing on November 14, 2003. The single commissioner concluded Dew was totally and permanently disabled under sections 42-9-10 and 42-9-30 of the South Carolina Code (Supp. 2002). The single commissioner ordered Santee Cooper to pay Dew a lump sum payment, not to exceed a total of five hundred weeks of compensation. The order allocated the lump sum payment to Dew over his lifetime.
Santee Cooper requested the Appellate Panel review the single commissioner's order, citing forty-five exceptions. The Appellant Panel affirmed the single commissioner and adopted her order in full.
Santee Cooper then appealed the Appellate Panel's order to the circuit court. The circuit court affirmed the Appellate Panel. This appeal follows.
The findings of an administrative agency, such as the Appellate Panel, are presumed correct and will only be set aside if unsupported by substantial evidence. Rodney v. Michelin Tire Corp., 320 S.C. 515, 519, 466 S.E.2d 357, 359 (1996). Substantial evidence is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached.” Gibson v. Florence Country Club, 282 S.C. 384, 386 318 S.E.2d 365, 367 (1984) (internal quotations omitted).
When conflicting medical evidence is presented, the Appellate Panel's findings of fact are conclusive. Grayson v Carter Rhoad Furniture, 317 S.C. 306, 309, 454 S.E.2d 320, 321-22 (1995). The duty to determine facts is placed solely on the Appellate Panel, and the court reviewing the decision of the Appellate Panel has no authority to determine factual issues but must remand the matter to the Appellate Panel for further proceedings if necessary. Fox v. Newberry County Mem'l Hosp., 319 S.C. 278, 280, 461 S.E.2d 392, 394 (1995).
Santee Cooper argues the Appellate Panel erred regarding Dew's right knee for three reasons: 1) by holding compensation for Dew's right knee injury was properly before the Appellate Panel; 2) by failing to find Dew's right knee injury was time barred; and 3) by finding substantial evidence supported Dew's claim for his right knee. We disagree.
Santee Cooper submits because Dew never legally claimed any entitlement to benefits for his knee or leg, ” the issue was not before the Appellate Panel. We disagree.
In his Form 50, a workers' compensation form used to file a claim, Dew listed his back, right leg, and right hip as injuries sustained from the April 30, 2001 accident. Additionally, Dew testified before the single commissioner that on the day of the accident his right leg went away” and he fell onto his back. On the day of the fall, Santee Cooper's doctor diagnosed Dew with a right knee strain, a right hip strain, and a contusion. Therefore, Dew presented sufficient evidence to place his right knee injury properly before the Appellate Panel.
Santee Cooper alleges Dew's claim for his right knee injury is time barred under section 42-15-40 of the South Carolina Code (Supp. 2006). We disagree.
Section 42-15-40 states, The right to compensation under this title is barred unless a claim is filed with the commission within two years after an accident....”
The accident occurred on April 30, 2001, and Dew filed his Form 50 on April 25, 2003. The Form 50 states Dew sustained an accidental injury to his back, right leg, [and] right hip.” Further, Dew notes on the form that he fell when his leg gave way. Additionally, the Form 50 states Dew was filing the form as a claim. Therefore, Dew followed section 42-15-40 by filing a claim for his right knee within the statutory time limit.
Santee Cooper argues substantial evidence does not support the Appellate Panel's finding that Dew's right knee was injured by an accident arising out of Dew's employment. We disagree.
Substantial evidence is defined as evidence that would allow reasonable minds to reach the same conclusion as the Appellate Panel. Gibson, 282 S.C. at 386, 318 S.E.2d at 367. Additionally, the trier of fact [which is the Appellate Panel] is not necessarily bound by, and need not accept or believe, medical or other expert testimony, even when it is unanimous, uncontroverted, or uncontradicted.” 100A C.J.S. Workers' Compensation §1023 (2000).
Dew testified at trial that on April 30, 2001, his right leg went away” causing him to fall. Dr. Preston B. Fitzgerald, a chiropractor, determined to a reasonable degree of chiropractic orthopedic probability the injuries Dew suffered were from the April 30, 2001 accident. Dr. Stephen Rawe noted that Dew sustained a work related injury on 4/30/01.” Additionally, Dr. Schaefer, the company doctor, noted, I do not believe [Dew's] knee injury is work related, but [it] can be.” Therefore, substantial evidence supports finding Dew's right knee was injured by the April 30, 2001 accident.
Santee Cooper further disputes the causation of Dew's knee injury by noting Dew saw Dr. Fitzgerald prior to the accident complaining of knee pain.
In Gordon v. E. I. Du Pont De Nemours & Co., the South Carolina Supreme Court stated that a latent or quiescent weakened, but not disabling, condition resulting from disease or previous accidental injury that is aggravated, accelerated, or activated within the course of employment may result in a compensable disability. 228 S.C. 67, 76, 88 S.E.2d 844, 848 (1955).
Prior to the accident, Dew's knee bothered him for a number of years following an incident when he jumped over a ditch. On April 16, 2001, Dew saw Dr. Fitzgerald regarding pain in his right knee. Dr. Fitzgerald referred Dew to an orthopedist, whom Dew saw on April 20, 2001. An MRI was performed on Dew's right knee on April 27, 2001. The radiologist, Dr. Robin Daum-Kowalski, concluded Dew's right knee had a lateral meniscal tear with related separation, joint effusion, and a medial meniscal signal without a tear.
Dr. George Dawson and Dr. Robert Eagerton signed documents instructing Dew to return to full-duty work on April 30, 2001, the date of the accident. Additionally, Dr. Marcus Schaefer recorded that Dew's knee completely gave out on the day of the accident for the first time and subsequently gave out four additional times.
The Appellate Panel's adopted order explains:
The Claimant's accident aggravated his pre-existing condition to his knee.... Although the knee would have required surgery even without the accident, the fact is that everyone reasonably believed on the date of injury that Claimant was able to work with no restrictions.... Claimant worked several hours, putting considerable strain on his right leg and knee. The knee gave away”, (sic) causing him to fall. Under the circumstances of this claim, the back and right leg injuries both arose out of and in the course of employment.
The Appellate Panel's finding that Dew's knee injury arose out of an accident within his scope of employment is supported by substantial evidence and, therefore, is not reversible error.
Santee Cooper argues the Appellate Panel erred in finding Dew is entitled to benefits for permanent and total disability under sections 42-9-10 and 42-9-30 of the South Carolina Code (Supp. 2006) due to a lack of evidentiary support and the applicable law. [1] We disagree.
In Wigfall v. Tideland Util., Inc., the South Carolina Supreme Court interpreted section 42-9-10. Our Supreme Court elucidated three ways a claimant may obtain total disability (1) by demonstrating...
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