Fishburne v. Ati Systems Intern.

• Decision Date: 11 June 2009
• Docket Number: No. 4559.,4559.
• Citation: 681 S.E.2d 595
• Court: South Carolina Court of Appeals
• Parties: Wanda FISHBURNE, Appellant, v. ATI SYSTEMS INTERNATIONAL, Employer, and Continental Casualty Company, Carrier, Respondents.

681 S.E.2d 595

Wanda FISHBURNE, Appellant, v. ATI SYSTEMS INTERNATIONAL, Employer, and Continental Casualty Company, Carrier, Respondents.

No. 4559.

Court of Appeals of South Carolina.

Heard April 21, 2009.

Decided June 11, 2009.

Kathryn Williams, of Greenville, for Appellant.

Weston Adams, III, and Ashley B. Stratton, of Columbia, for Respondents.

SHORT, J.

Wanda Fishburne appeals the circuit court's order affirming the Appellate Panel of the Workers' Compensation Commission, arguing the court erred in finding (1) she sustained only ten percent loss of use of her back; (2) she was not entitled to an award of permanent partial disability to her right lower extremity; (3) she was only entitled to additional medical treatment needed to wean her from unnecessary narcotics; and (4) she did not provide credible testimony at the hearing. We affirm.

FACTS

In January 1999, Fishburne began working for ATI Systems International (ATI), an armored transport company. Fishburne worked as a money room manager, which involved unloading money from the transport trucks, counting the money, and entering the amounts on balance sheets. On January 22, 2002, Fishburne injured her back while attempting to unload a bag of coins from a cart. The next day, she went to Doctor's Care for treatment and was given permission to return to work with a five-pound weight limitation. As a result of her weight limitation, ATI terminated her employment in March because they did not have any jobs that met her restrictions.

Dr. H. Stanley Reid, a neurosurgeon at the Carolina Orthopaedic Center, saw Fishburne in April 2002,¹ and noted she had no abnormal spine alignment, but ordered a magnetic resonance image (MRI), which showed mild degenerative disc disease. Dr. Reid recommended Fishburne attend physical therapy and have an epidural steroid injection. In July, Dr. Reid discharged Fishburne as having reached maximum medical improvement (MMI) and rated her at medium work capacity. He restricted her work to avoid frequent bending or lifting, but stated she could lift up to thirty-five pounds occasionally, up to twenty pounds frequently, and carry twenty pounds one-hundred feet. He also gave her an impairment rating of five percent for the whole person. During a visit in December, Dr. Reid noted Fishburne's subjective complaints far outweighed his objective findings, and the radiographic report showed her lumbar spine had normal disc height and normal alignment. He told her exercise and trunk strengthening would have significant benefits however, Dr. Reid stated this suggestion was discounted by Fishburne and her husband. In January 2003, Dr. Reid noted Fishburne exhibited four out of five Waddell's non-organic physical signs² and had non-organic pain behaviors which affected her gait. He also restated her subjective complaints of pain far outweighed his objective findings, and he did not see any necessity in continuing narcotic medication given his findings. Again, he discharged her at MMI and gave her an impairment rating of five percent for the whole person and entire spine.

In July of 2002, Fishburne underwent a functional capacity evaluation, which found she was able to frequently sit, stand, walk, grasp, stack, static trunk bend, kneel, crouch, stoop, repetitively squat, and push and pull a weighted cart; occasionally lift a maximum of thirty-six-and-a-half pounds from floor to knuckle level; lift thirty-one-and-a-half pounds from knuckle to shoulder; frequently lift twenty-four-and-a-half pounds from floor to knuckle level and from knuckle to shoulder level; and frequently carry twenty-four-and-a-half pounds for one-hundred feet. Based on the findings, the evaluator determined Fishburne was lifting in the medium category of work based on the United States Department of Labor (USDL) Standards and met the physical demands to perform medium work for an eight-hour day based on the USDL Standards; however, she did not meet the physical demands required to lift a maximum of fifty pounds as required by her job at ATI. The evaluator also noted Fishburne exhibited some Waddell signs, indicating she had moderate magnified illness behavior, and although she did not take pain medicine before the test, no spikes in Fishburne's heart rate were noted with the increased reports of pain.

Dr. Philip C. Latourette, a pain management specialist at the Carolina Center for Advanced Management of Pain, saw Fishburne in June of 2003. He noted her electromyogram (EMG), MRI, computerized tomography (CT) myelogram, and nerve conduction velocity tests were all negative. He also noted that Fishburne did not find physical therapy, epidural shots, and discography to be helpful. Dr. Latourette ordered a sacroiliac joint injection and right side facet joint injection; however, they also did not provide Fishburne with relief. A selective nerve root injection gave her some short-term relief. Dr. Latourette referred Fishburne to Dr. C. David Tollison for further treatment. Dr. Tollison, a psychologist at the Carolina Center for Advanced Management of Pain, first saw Fishburne in February of 2004. She complained of lower back and right leg pain from her work injury. He diagnosed her with an adjustment disorder with mixed depressive and anxiety features and somatoform pain disorder with psychological factors.³ At his deposition, Dr. Tollison stated he had just seen Fishburne the day before, and she told him the "pain was not all the way down her leg and in her foot like it was when she was first injured." Fishburne also told Dr. Tollison she was exercising, spending time with her family, fishing, maintaining a positive attitude overall, and learning to do other things. Dr. Tollison prescribed Wellbutrin and Zoloft for Fishburne's depression and said he believed she would need treatment five or six times a year because of her medications and continued therapy. He also stated he believed she had reached a level of psychological MMI. However, in October of 2005, Dr. Tollison signed a statement that Fishburne was permanently and totally disabled as a result of the combination of her physical and psychological problems related to her work injury.

In February of 2004, Fishburne saw Dr. William B. Evins, an orthopedic surgeon at Oakwood Orthopaedic, for an independent medical evaluation. Dr. Evins found no indication of any disc disease that would cause all of her symptoms and she was at MMI with an impairment rating of fifteen to twenty percent of the lumbar spine. In January of 2006, Fishburne was given two independent medical evaluations and one vocational evaluation. Dr. George R. Bruce, an orthopedic surgeon at Oconee Orthopaedic Clinic, found in his independent medical examination that Fishburne had a physical impairment of twenty-four percent for the whole person and twenty-seven percent of the lumbar spine. He also noted she would not benefit from any surgery and had reached MMI. Dr. Charles B. Thomas, of Palmetto Disability Evaluations, found in his independent medical examination that Fishburne demonstrated four of Waddell's five signs, suggesting a non-organic source for her pain, and noted she grimaced and sighed with all movement. Dr. Thomas also noted the degenerative changes shown on Fishburne's MRI predated her work injury, and he believed she could return to her previous level of work if she were off narcotics. In his vocational evaluation of Fishburne, Randy L. Adams, M.Ed., determined she was permanently and totally disabled from any work.

At the hearing before the Single Commissioner, Fishburne was the sole witness to testify on her behalf. Fishburne testified she suffered from pain in her low back, right side, right heel, right leg, and right foot. As a result, she claimed it was hard for her to get out of bed in the morning, and she came to the hearing using her mother's cane that no doctor had prescribed for her. Fishburne testified she was not able to sit or stand for long periods of time, wash a sink of dishes, or remove wet clothes from the washer. Fishburne also asserted she cried for no reason because she could no longer do things she used to be able to do, and the pain medicine eased her pain, but the pain never went away completely. In July of 2004, Fishburne was involved in a car accident, but maintained she only injured her neck. Fishburne testified she sought a lump sum payment for total disability to buy a house, and she had not worked since she was let go from ATI, but she had not applied for any jobs since that time.

The Single Commissioner found Fishburne sustained a ten percent permanent partial disability to her back including any right lower extremity radiculopathy. The Commissioner determined the greater weight of the evidence did not support a finding that Fishburne was permanently and totally disabled under South Carolina Code sections 42-9-10 or 42-9-30(19). In February of 2007, the Commission's Appellate Panel affirmed the Single Commissioner, and in July of 2007, the circuit court affirmed the Appellate Panel. 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.A...