Fox v. Newberry County Memorial Hosp.

• Decision Date: 09 September 1994
• Docket Number: No. 2245,2245
• Citation: 316 S.C. 537,451 S.E.2d 28
• Court: South Carolina Court of Appeals
• Parties: J. Carlene FOX, Appellant, v. NEWBERRY COUNTY MEMORIAL HOSPITAL, Employer, and Palmetto Hospital Trust, Carrier, Respondents. . Heard

Page 28

451 S.E.2d 28

316 S.C. 537

J. Carlene FOX, Appellant, v. NEWBERRY COUNTY MEMORIAL HOSPITAL, Employer, and Palmetto Hospital Trust, Carrier, Respondents.

No. 2245.

Court of Appeals of South Carolina.

Heard Sept. 9, 1994.

Decided Oct. 24, 1994.

Rehearing Denied Dec. 6, 1994.

Everett Hope Garner of Holler, Olive, Lengel & Garner, Columbia, for appellant.

Lana H. Sims, Jr. and Andrew F. Lindemann both of Ellis, Lawhorne, Davidson & Sims, Columbia, for respondents.

HOWARD, Acting Judge:

J. Carlene Fox (Claimant) appeals the circuit court's reversal of an award of worker's compensation under the Occupational Disease Act. We reverse.

The claimant filed a claim with the Worker's Compensation Commission, alleging she contracted a disease known as herpetic whitlow during her employment as a nurse at the Newberry Memorial County Hospital. The employer/carrier denied compensation, asserting the condition was not work-related.

The claimant started work as a nurse in April of 1986. Prior to this time, she had no incidence of herpes. In July of 1986 she had an initial outbreak of herpetic whitlow, manifesting itself as a small blister on the back side of her left index finger. She was not diagnosed with the disease until October of 1986. ¹

According to the testimony, herpetic whitlow is a form of herpes usually infecting the finger around the nail cuticle. This viral disease infects the nerve root and manifests itself as an abscess with blisters around the nail bed. It may also manifest itself as a painful, red streak up the arm to the elbow. The disease is transmitted by contact with an open lesion of another person with herpes and enters through a break in the skin, such as a small cut or even an inflamed hangnail.

During the summer of 1986, claimant's nursing duties included staffing the emergency room where she normally treated one to ten patients. Though she could not specifically relate from which particular patient she contracted the disease, she testified the number of patients with fever blisters increased in the summer. As part of the treatment of these patients, claimant took their temperatures with her left hand, which caused her to come into direct contact with the fever blisters. Because this condition was so common to patients seen in the summer, it would not be noted in any record unless it was the reason for the emergency room visit. Moreover, she testified she had no exposure, physically or sexually, to anyone with herpes outside of her employment. She maintained a celibate lifestyle during the period in question, and her ex-husband had not been diagnosed with herpes to her knowledge.

The Hearing Commissioner found the herpetic whitlow to be an occupational disease and awarded compensation to the claimant. The Full Commission affirmed the award. ² The employer /carrier appealed the award to the circuit court, which reversed the decision of the Commission. This appeal followed.

Coverage of occupational diseases has always lagged far behind coverage for injury by accidents. Prior to the enactment of statutory provisions allowing compensation, occupational diseases were generally not compensable. 1B Arthur Larson, Workmen's Compensation Law § 41.20 (1993); 99 C.J.S. Workmen's Compensation § 169 (1958). Because a single time, place, or event constituting an "accident" in the scope of employment could not be identified as the cause of a gradually developed disease, worker's compensation acts were thought to be incapable of supporting a disease claim. The occupational disease problem was perhaps too general or extensive to be dealt with under compensation acts as opposed to general health insurance legislation. 1B Larson, supra, § 41.20.

Occupational disease coverage, however, evolved to compensate persons for diseases which were clearly incident to a continuous exposure to some hazard in their industry greater or different than those involved in ordinary living or ordinary occupations. 99 C.J.S. Workmen's Compensation § 169. The earliest coverage of diseases took the form of inclusion within the broad definition of "injury." Then, some states began listing particular diseases and the process in which they are acquired as compensable. Finally, the modern trend has been toward expansion into general coverage. 1B Larson, supra, § 41.20. A few examples of these diseases include asbestosis, silicosis, bronchitis, bursitis, and the commonly named diseases black lung and brown lung.

South Carolina has enacted a general coverage statute which broadly defines an occupational disease instead of limiting it to specific diseases or processes. S.C.Code Ann. § 42-11-10 (1985). Under our law, a claimant must prove the following elements, by a preponderance of the evidence, to recover benefits for contraction of an occupational disease:

1. A disease;

2. The disease must arise out of and in the course of the claimant's employment;

3. The disease must be due to hazards in excess of those hazards that are ordinarily incident to employment;

4. The disease must be peculiar to the occupation in which the claimant was engaged;

5. The hazard causing the disease must be one recognized as peculiar to a particular trade, process, occupation, or employment; and

6. The disease must directly result from the claimant's continuous exposure to the normal working conditions of the particular trade, process, occupation, or employment.

Mohasco Corp., Dixiana Mill Div. v. Rising, 289 S.C. 130, 135, 345 S.E.2d 249, 252 (Ct.App.1986), rev'd on other grounds, 292 S.C. 489, 357 S.E.2d 456 (1987). The Commission found the claimant met her burden of proof on these elements and awarded compensation.

On appeal from the circuit court, the claimant argues the court erred in substituting its own judgment for that of the Commission. We agree. Under the circuit court's scope of review, the Commission's award of compensation must be affirmed if supported by substantial evidence in the record. Smith v. Squires Timber Co., --- S.C. ----, 428 S.E.2d 878 (1993). Substantial evidence is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but it is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the Commission reached or must have reached to justify its action. Miller v. State Roofing Co., --- S.C. ----, 441 S.E.2d 323 (1994).

When determining whether the record contains substantial evidence to support the Commission's findings, the circuit court cannot substitute its own judgment on the weight of the evidence. Gibson v. Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984). Therefore, the standard for reversing the decision of the Commission is not whether the circuit court's findings were substantially supported by the evidence, but whether substantial evidence supported the Commission's findings. Id.; Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).

The Commission found the claimant's condition to be a disease, and it found she established through her testimony the requisite causal connection between the disease and the conditions of her employment. The record amply supports these findings.

To qualify as an occupational disease, the claimant must next establish the disease is due to hazards in excess of those hazards that are ordinarily incident to employment. To do so, the evidence need only demonstrate that she was exposed to a greater risk by reason of her employment than the general public. Sturkie v. Ballenger Corp., 268 S.C. 536, 235 S.E.2d 120 (1977). The claimant testified she was regularly in physical contact with patients having fever blisters, an herpetic infection. Under her testimony, as well as that of Dr. Mark Davis, a certified internist, this situation constituted a hazard in excess of those hazards of ordinary living or ordinary occupations.

The claimant was next required to show both the disease and the hazard causing the disease (physical contact with patients) is peculiar to the medical profession. However, the phrase "peculiar to the occupation" does not mean the disease "must either originate exclusively from or be unique to the particular kind of employment in which the employee is engaged," nor does it mean the disease "must be one not otherwise found among the general public." Mohasco, 289 S.C. at 138, 345 S.E.2d at 253. Instead, the claimant must only show the disease is "either directly caused by, especially incident to, or the natural consequence of the work in question." Id.

In this case, substantial evidence in the record exists to show herpetic whitlow is a disease peculiar to the medical profession because of the increased exposure to the virus. The claimant presented expert testimony from Dr. Davis that herpetic whitlow is more common in the medical profession because of the greater risk of exposure and contact to herpetic lesions. Also, Dr. Carl A. Johnson, a dermatologist, testified the literature in medical journals reports herpetic whitlow is most common in the medical profession. ³ This testimony not only demonstrated the hazard of physical contact is peculiar to the medical profession, but the disease of herpetic whitlow was also peculiar to claimant's profession as a nurse because it was incident to or a natural consequence of her work.

Finally, the claimant was required to prove the disease directly resulted from the claimant's continuous exposure to the normal working conditions of the particular trade, process, occupation, or employment. According to the claimant, she came into contact with the mouths of patients in the emergency room on a daily basis while taking their temperatures. Though right-handed, she used the index finger of her left hand to detach the expendable tips from the hospital thermometer. Many patients, especially in the summer, had fever blisters. The substantial evidence supports the conclusion the disease directly resulted from the claimant...