Frampton v. S.C. Dep't of Natural Res.

• Decision Date: 13 May 2020
• Docket Number: Opinion No. 5726,Appellate Case No. 2017-001764
• Court: South Carolina Court of Appeals
• Parties: Chisolm FRAMPTON, Employee, Appellant, v. S.C. DEPARTMENT OF NATURAL RESOURCES, Employer, and S.C. State Accident Fund, Carrier, Respondents.

432 S.C. 247

851 S.E.2d 714

Chisolm FRAMPTON, Employee, Appellant,

v.S.C. DEPARTMENT OF NATURAL RESOURCES, Employer, and S.C. State Accident Fund, Carrier, Respondents.

Appellate Case No. 2017-001764

Opinion No. 5726

Court of Appeals of South Carolina.

Heard September 19, 2019

Filed May 13, 2020

Withdrawn, Substituted and Refiled November 18, 2020

John C. Land, III, of Land Parker Welch, LLC, of Manning, for Appellant.

Kirsten Leslie Barr, of Trask & Howell, LLC, of Mount Pleasant, for Respondent.

HILL, J.:

In this workers’ compensation case, the single commissioner found Chisolm Frampton failed to meet his burden of proof under S.C. Code Ann. § 42-9-35 (2015) to show his subsequent, on-the-job injury aggravated his preexisting neck condition. Nevertheless, the single commissioner found because the Department of Natural Resources (DNR) admitted the claim and provided medical treatment, Frampton was entitled to benefits for a 20% permanent partial disability to his spine. The appellate panel reversed, finding the single commissioner's conclusion that Frampton did not meet his burden of proof under § 42-9-35 was correct and, as an alternate ground for reversal, found because the finding was not appealed, it was the law of the case. The appellate panel therefore concluded Frampton was not entitled to benefits as a matter of law. Frampton now appeals the appellate panel's reversal of the single commissioner's award, arguing (1) the appellate panel erred in requiring him to prove a compensable injury to his spine

after DNR admitted liability, and (2) the single commissioner erred by considering Frampton's return to work and subsequent promotions in determining his impairment rating. Because the appellate panel's decision is supported by substantial evidence, we affirm.

I. Factual and Procedural Background

On September 4, 2010, Frampton experienced neck pain and stiffness after riding in a pickup truck across a bumpy dove field he and another DNR officer were inspecting. He reported the incident to his supervisor and went to Doctor's Care three days later. The notes from that visit indicated Frampton was diagnosed with cervical and trapezius strains and that workers’ compensation paid for the visit. Frampton was released back to work the same day with the restriction of "no overhead lifting." He went back to Doctor's Care ten days later for a follow-up visit, after which he was released to work full duty.

On March 15, 2011, Frampton saw a neurosurgeon, Dr. Byron Bailey, who examined him for ongoing neck and arm pain. Frampton testified he was referred by workers’ compensation to Dr. Bailey because his neck condition had not improved since the September 4, 2010 accident. Dr. Bailey's medical records, however, indicated he had treated Frampton before the dove field incident and was "following [Frampton] for cervical radiculopathy "¹ and described Frampton as having symptoms of neck pain and right arm numbness that had "progressed from the study that was done approximately a year ago." The next day, Frampton underwent a series of tests whereby Dr. Bailey determined he would require spinal surgery. Dr. Bailey performed a cervical discectomy and fusion on March 21, 2011, and continued to see Frampton for follow-up visits. Frampton returned to work on May 1, 2011, but was restricted to light duty for another several weeks.

In June 2011, Frampton was involved in a serious car accident. He saw Dr. Bailey soon after for a previously scheduled appointment and reported experiencing aggravation of his neck pain. Dr. Bailey determined Frampton likely developed a cervical strain

as a result of the car accident and prescribed a number of medications and physical therapy. Frampton continued to see Dr. Bailey periodically for neck pain.

On September 20, 2013, Dr. Bailey completed a Form 14B, stating Frampton reached maximum medical improvement (MMI) on April 17, 2013, listing his diagnosis as cervical spondylosis

, and assigning him a 20% impairment rating to the cervical spine. However, Dr. Bailey later revised the form to assign Frampton a 75% impairment rating to the cervical spine and a 26% whole person impairment rating.

On November 17, 2014, Frampton filed a Form 50 seeking total permanent disability benefits for the injury to his neck and right arm allegedly sustained during the dove-field accident. He denied any prior permanent disability.

In its Form 51 Answer to Request for Hearing, DNR stated, "It is [a]dmitted the employee sustained an injury or illness on or about the date set forth in the Form 50." However, DNR (1) denied any injury to Frampton's right arm; (2) denied Frampton needed or was entitled to additional medical care as a result of any work-related injury; (3) claimed Frampton reinjured his cervical spine during his June 2011 car accident and was currently being treated for that injury; and (4) stated, "[d]isability, if any, to be determined by the [Worker's Compensation Commission]." In its prehearing brief, DNR again denied Frampton was permanently and totally disabled in light of his ability to continue working without restriction and reiterated its argument that the car accident was a subsequent, intervening accident. DNR did not, however, cite § 42-9-35 or the issue of Frampton's preexisting diagnosis of cervical radiculopathy

in its Form 51 or Form 58 prehearing brief.

At the beginning of Frampton's hearing, Frampton asserted that during the September 4, 2010 dove-field incident, he herniated a disc in his cervical spine, ultimately resulting in surgery and total permanent disability. DNR, however, opened the hearing by stating:

It is our position that there is no evidence that [Frampton] sustained any additional injury or exacerbated his known preexisting condition as a result of the September 4, 2010 accident. [Frampton] has a known preexisting condition, as indicated in Dr. Bailey's records. Dr. Bailey diagnosed him with a C6-7 radiculopathy

approximately six months prior to the dove field incident. [Frampton] has a burden of proof by a preponderance of the evidence that the preexisting condition was aggravated or exacerbated. We don't believe he's met that burden of proof.

Frampton did not object to DNR framing the case this way, and the hearing continued. During the hearing, Frampton testified he was working full time but had some limitations in what he was physically able to do. He believed he had lost at least 75% use of his neck because of his ongoing pain and his limited movement; however, he confirmed he was not taking any medications at the time of the hearing for his neck.

During the hearing, the issues of Frampton's preexisting diagnosis of cervical radiculopathy

and pre-dove-field visit to Dr. Bailey were extensively discussed.² Frampton testified he did not recall seeing Dr. Bailey before the September 4, 2010 dove-field incident or having problems in his neck or arm before the incident. However, Dr. Bailey's medical records, which were stipulated to during the hearing, did not reference a work-related injury on September 4, 2010. Rather the records indicated in March 2010, Frampton self-reported numbness in his arm beginning at least three weeks earlier in February 2010. The records also indicated in March 2010, Frampton had an MRI scan of his neck to determine the cause of the reported arm and neck pain. Frampton acknowledged he would not have gone to see Dr. Bailey in March 2010 or had an MRI scan of his neck if he was not having neck pain at that time, and he agreed that, on the intake forms, he characterized his symptoms as having begun gradually over a number of years. Frampton also acknowledged he never mentioned the September 4, 2010 dove-field incident when asked to describe his injuries to Dr. Bailey.

Frampton urged the single commissioner to find that he lost more than 50% use of his back as a result of the dove-field incident, and therefore, there was a rebuttable presumption he had a permanent and total disability. See S.C. Code Ann. § 42-9-30(21) (2015). "[S]ection 42-9-30(21) states there is a rebuttable presumption of [permanent and total disability] when a claimant has 50% or more loss of use of the back." Watson v. Xtra Mile Driver Training, Inc. , 399 S.C. 455, 464, 732 S.E.2d 190, 195 (Ct. App. 2012).

DNR argued Frampton's injury resulting from the dove-field incident was merely a cervical strain

and Frampton failed to prove he aggravated his preexisting neck condition as a result of the dove-field incident pursuant to § 42-9-35. DNR also argued the June 2011 car accident was a subsequent, intervening accident, breaking any existing chain of causation between the dove-field accident and Frampton's injury, relying on Geathers v. 3V, Inc. , 371 S.C. 570, 579–80, 641 S.E.2d 29, 34 (2007) (holding when an employee with a preexisting but non-disabling prior injury suffers a subsequent, disabling injury that aggravates or activates the preexisting condition, compensability is limited to the second injury, not the first).

In the order following the hearing, the single commissioner found Frampton's testimony regarding the extent of his preexisting neck injury was not credible; rather, the single commissioner found Frampton suffered from preexisting neck pain and right arm numbness before his alleged September 4, 2010 work injury, citing Dr. Bailey's medical records predating the dove-field incident. The single commissioner further found there was no medical evidence the September 4, 2010 dove-field incident aggravated or exacerbated Frampton's preexisting neck condition, concluding Frampton did not meet his burden of proving a compensable disability under § 42-9-35.

Nevertheless, the single commissioner awarded Frampton disability benefits because she found DNR admitted Frampton's claim and provided medical treatment. As to the details of the award, the single commissioner found Frampton was not permanently and totally disabled but had sustained 20% permanent partial disability to his spine...