Dodge v. Bruccoli, Clark, Layman, Inc.

• Decision Date: 16 February 1999
• Docket Number: No. 2942.,2942.
• Citation: 514 S.E.2d 593,334 S.C. 574
• Court: South Carolina Court of Appeals
• Parties: George DODGE, Respondent, v. BRUCCOLI, CLARK, LAYMAN, INC. and Companion Property and Casualty Insurance Company, Appellants.

334 S.C. 574

514 S.E.2d 593

George DODGE, Respondent, v. BRUCCOLI, CLARK, LAYMAN, INC. and Companion Property and Casualty Insurance Company, Appellants.

No. 2942.

Court of Appeals of South Carolina.

Heard September 3, 1998.

Decided February 16, 1999.

Rehearing Denied June 5, 1999.

E. Ros Huff, Jr., of Huff & Cauthen, of Irmo; and Rose D. Manos, of Nexsen, Pruet, Jacobs & Pollard, of Columbia, for appellants.

Andrew N. Safran, of Lourie & Safran, of Columbia, for respondent.

CONNOR, Judge:

Bruccoli, Clark, Layman, Inc. and its insurance carrier, Companion Property and Casualty Insurance Company (collectively referred to as Bruccoli), appeal the circuit court's reversal of the South Carolina Workers' Compensation Commission ruling that George Dodge was no longer entitled to additional medical benefits under S.C.Code Ann. § 42-15-60 (1985). We affirm in part, reverse in part, and remand.

FACTS

George Dodge was a computer programmer at Bruccoli. In 1989 Dr. Parrott performed surgery on Dodge for a spinal stenosis and a herniated disc with right radiculopathy into the leg. Following this surgery Dr. Parrott prescribed Tylenol # 3 for his pain. The injury prompting the surgery was not work-related.

In 1990, while recovering from surgery, Dodge re-injured his back at work by carrying a laser printer up two flights of stairs and lifting it onto a table. Following the re-injury, Dodge continued to experience back and leg pain and continued to receive Tylenol # 3 for pain. He returned to Dr. Parrott for treatment. In March of 1990, Dr. Parrott performed a laminectomy, a nerve root decompression, and a diskectomy. After the March surgery, Dodge noticed the pain in his leg became worse. In June of 1991, Dr. Parrott assigned Dodge a fifteen percent impairment rating, which represented a ten percent impairment from the first surgery and an additional five percent for the second surgery.

In September of 1991, Dr. Paysinger performed a hemilaminectomy and removed a herniated disc. Dodge continued to experience pain in his right leg after the surgery. Dr. Paysinger assigned Dodge a ten percent impairment rating in December of 1991.

To assist Dodge in dealing with his pain, Dr. Paysinger referred him to Baptist Medical Center's Pain Management Program. Dr. Redmond oversaw Dodge's care in the program from December of 1991 until September of 1992. In a report dated September 8, 1992, Dr. Redmond found Dodge had reached maximum medical improvement and assigned a thirty percent impairment rating to the lumbar spine. Under Dr. Redmond's care Dodge returned to work in January of 1992. At this time he reduced his narcotic use by fifty percent (six Tylenol with codeine per day down to three). The pain therapy did not affect Dodge's level of pain but taught Dodge coping skills. Dodge rationed his pain killers so he could go to work.

After completion of the pain management program, Dr. Redmond referred Dodge to Dr. Borucki for continued treatment and medication monitoring. Nonetheless, Dodge again contacted Dr. Redmond asking for a prescription for Tylenol # 3. Dr. Redmond wrote "... I am not inclined to continue providing him with Tylenol # 3. He has been a difficult patient to manage and has frequently requested more Tylenol # 3 than that which I think is appropriate." However, Dr. Redmond stated in his deposition that Dodge required an appropriate amount of pain medication to maintain his level of function. He opined Dodge would probably need treatment and maintenance medication for the rest of his life or his period of disability would increase. In a report he wrote: "He has continued to work and function while taking this medication, and therefore, there is some limited justification for this." Dr. Borucki agreed with Dr. Redmond's assessment that Dodge required continued medication and treatment to maintain his level of functioning.

The procedural history of this case is somewhat complicated. The single commissioner found Dodge had reached maximum medical improvement in September of 1992, and assigned him a forty-five percent permanent partial disability to his back. The commissioner determined Dodge was not entitled to further medical benefits because he had reached maximum medical improvement.

The full commission affirmed the commissioner's decision but amended the order. The commission deleted the portion of the order which eliminated all medical treatment after Dodge reached maximum medical improvement. The commission found Dodge eligible for future medical treatment pursuant to S.C.Code Ann. § 42-17-90 (1985), which enables the commission to review a claimant's compensation award in the event of a change of condition.

The circuit court reversed and remanded the case to the commission to award Dodge continued medical benefits for medication and treatment. The court found the commission erred as a matter of law in finding that Dodge's entitlement to medical benefits pursuant to S.C.Code Ann. § 42-15-60 (1985) terminated on the date he reached maximum medical improvement. The court further held the evidence in the record "unequivocally indicates" that Dodge requires the additional medical treatment and medication in order to remain gainfully employed.

Pursuant to the circuit court's mandate, the commission issued an amended order in September of 1995. The commission awarded Dodge further medical treatment and medication which would prevent his partially disabling condition from becoming incapacitating and lessen the ultimate period of disability.

Bruccoli appealed to the Supreme Court from the circuit court's order and the commission's amended order. That Court dismissed the appeal as interlocutory. Subsequently, a second circuit court judge reviewed the orders. He remanded the case to the commission for the commission to enter detailed factual findings and legal conclusions in conformity with the initial circuit court order.

In February of 1997, in compliance with that order, the commission issued an amended order awarding Dodge continuing medical benefits and finding as a matter of law that section 42-15-60 provided for ongoing treatment and medication as long as such would lessen the period of disability. The commission specifically found Dodge would not be working but for his receipt of the additional medical treatment and medication. The circuit court affirmed the commission's order. Bruccoli appeals.

Although the appeal procedure necessitated the two additional circuit court orders, Bruccoli's appeal is directed to the initial circuit court order which reversed and remanded the case to the commission to award Dodge continued medical benefits for medication and treatment.

DISCUSSION

Bruccoli argues the circuit court improperly applied the substantial evidence test in reversing the commission's factual findings. The court determined the commission committed an error of law by failing to award benefits under section 42-15-60 when the evidence "unequivocally indicate[d]" the medication and treatment tended to lessen Dodge's period of disability within the meaning of section 42-15-60.

The circuit court correctly held the commission erred as a matter of law in concluding Bruccoli was no longer required to pay Dodge's medical benefits because he reached maximum medical improvement on September 8, 1992. Section 42-15-60 of the South Carolina Code provides in pertinent part:

Medical, surgical, hospital and other treatment, including medical and surgical supplies as may reasonably be required, for a period not exceeding ten weeks from the date of an injury to effect a cure or give relief and for such additional time as in the judgment of the Commission will tend to lessen the period of disability and, in addition thereto, such original artificial members as may be reasonably necessary at the end of the healing period shall be provided by the employer. In case of a controversy arising between employer and employee, the Commission may order such further medical, surgical, hospital or other treatment as may in the discretion of the Commission be necessary.

S.C.Code Ann. § 42-15-60 (1985) (emphasis added). This section clearly "allows the Commission to award medical benefits beyond 10 weeks from the date of injury only where the Commission determines such medical treatment would tend to lessen the period of disability ." Sanders v. Litchfield Country Club, 297 S.C. 339, 344, 377 S.E.2d 111, 114 (Ct.App.1989); see Williams v. Boyle Constr. Co., 252 S.C. 387, 390, 166 S.E.2d 550, 551 (1969) (There is no liability on an employer to furnish medical treatment for an additional time beyond the ten week period unless it "will tend to lessen the period of disability.").

"Disability" is defined in the South Carolina Workers' Compensation Act as the "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." S.C.Code Ann. § 42-1-120 (1985); Rice v. Froehling & Robertson, Inc., 267 S.C. 155, 159, 226 S.E.2d 705, 706 (1976) (interpreting S.C.Code of 1962 § 72-305, the precursor to section 42-15-60). Section 42-15-60 "does not by its terms equate an employer's liability for medical treatment to any other period of liability, for income compensation or otherwise." Rice, 267 S.C. at 159, 226 S.E.2d at 706. The statute defines "the period of disability in terms of the time period in which the employee is statutorily incapacitated." Id. Thus, under section 42-15-60 "[t]he employer is liable for medical treatment which will tend to lessen the time in which injury renders an employee incapable `to earn the wages which the employee was receiving at the time of injury in the same or other employment.'" Id. Section 42-15-60 specifically refers to the term "disability" and makes no reference to "maximum medical improvement." Given the statutory language and our Supreme Court's construction of it, a finding that Dodge reached maximum medical...