Gadson v. Mikasa Corp.

• Decision Date: 21 February 2006
• Docket Number: No. 4083.,4083.
• Citation: 628 S.E.2d 262
• Court: South Carolina Court of Appeals
• Parties: Kathleen L. GADSON, Employee, Respondent, v. MIKASA CORPORATION, Employer, The Yasuda Fire & Marine Insurance Co., Carrier, Appellants.

628 S.E.2d 262

Kathleen L. GADSON, Employee, Respondent, v. MIKASA CORPORATION, Employer, The Yasuda Fire & Marine Insurance Co., Carrier, Appellants.

No. 4083.

Court of Appeals of South Carolina.

Heard February 6, 2006.

Decided February 21, 2006.

Rehearing Denied April 20, 2006.

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COPYRIGHT MATERIAL OMITTED

Duke K. McCall, Jr., of Greenville, for Appellants.

Thomas M. White, of Goose Creek, for Respondent.

ANDERSON, J.:

In this Workers' Compensation case, the employer, Mikasa Corporation, and its insurance carrier, The Yasuda Fire & Marine Insurance Company (collectively referred to as Mikasa) appeal the circuit court's affirmance of the appellate panel's ruling that Kathleen L. Gadson had reached maximum medical improvement and was entitled to permanent disability benefits. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In September of 1997, Kathleen Gadson began working for Mikasa in Charleston, South Carolina. On January 8, 1998, Gadson sustained an injury by accident arising out of and in the course of her employment. She was injured while unloading some boxes. Since January of 1998, Dr. Jeffrey K. Wingate, a spine surgeon with the Carolina Spine Institute, has been her primary treating physician. The single commissioner found Gadson had injuries to her abdomen and lower back. She was awarded temporary total disability and permanent partial disability of ten percent for loss of use and disability to her back.

Subsequently, Gadson filed a Form 50 alleging a material change in her condition and requesting additional benefits. The single commissioner found that Gadson had experienced a material change in her condition entitling her to additional benefits under S.C.Code Ann. § 42-17-90. Mikasa was required to be responsible for Dr. Wingate's medical bills and to provide medical care through Dr. Wingate. The appellate panel affirmed the single commissioner.

Following two surgical procedures by Dr. Wingate and the assignment of a permanent impairment rating, Gadson filed a Form 50 alleging that she had reached maximum medical improvement (MMI), was permanently and totally disabled, and was entitled to lifetime medical care. The single commissioner ruled that Gadson was at maximum medical improvement as of May 22, 2002. The commissioner further found that Gadson was permanently and totally disabled under S.C.Code Ann. § 42-9-30. Mikasa appealed asserting that Gadson had not reached MMI and that further medical care and treatment would tend to lessen her period of disability. The appellate panel unanimously affirmed the single commissioner's order in its entirety. The circuit judge affirmed the appellate panel, concluding there was substantial evidence in the record to support the panel's findings.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard for judicial review of decisions of the Workers' Compensation Commission. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981); Hargrove v. Titan Textile Co., 360 S.C. 276, 599 S.E.2d 604 (Ct.App.2004). A reviewing court may reverse or modify a decision of an agency if the findings, inferences, conclusions, or decisions of that agency are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct. App.2005); S.C.Code Ann. § 1-23-380(A)(6)(e) (2005). 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. Liberty Mut. Ins. Co. v. South Carolina Second Injury Fund, 363 S.C. 612, 611 S.E.2d 297 (Ct.App.2005); S.C.Code Ann. § 1-23-380(A)(6)(d) (2005).

The substantial evidence rule of the APA governs the standard of review in a Workers' Compensation decision. Frame v. Resort Servs., Inc., 357 S.C. 520, 593 S.E.2d 491 (Ct.App.2004); Corbin v. Kohler Co., 351 S.C. 613, 571 S.E.2d 92 (Ct.App.2002); see also Lockridge v. Santens of America, Inc., 344 S.C. 511, 515, 544 S.E.2d 842, 844 (Ct.App.2001) ("Any review of the commission's factual findings is governed by the substantial evidence standard."). Pursuant to the APA, this Court's review is limited to deciding whether the appellate panel's decision is unsupported by substantial evidence or is controlled by some error of law. See Rodriguez v. Romero, 363 S.C. 80, 610 S.E.2d 488 (2005); Gibson v. Spartanburg Sch. Dist. # 3, 338 S.C. 510, 526 S.E.2d 725 (Ct.App.2000); S.C.Code Ann. § 1-23-380(A)(6) (2005); see also Grant v. Grant Textiles, 361 S.C. 188, 191, 603 S.E.2d 858, 859 (Ct.App.2004) ("A reviewing court will not overturn a decision by the Workers' Compensation Commission unless the determination is unsupported by substantial evidence or is affected by an error of law."). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action. Pratt v. Morris Roofing, Inc., 357 S.C. 619, 594 S.E.2d 272 (2004); Jones v. Georgia-Pacific Corp., 355 S.C. 413, 586 S.E.2d 111 (2003).

The appellate panel is the ultimate fact finder in Workers' Compensation cases and is not bound by the single commissioner's findings of fact. Bass v. Isochem, 365 S.C. 454, 617 S.E.2d 369 (Ct.App.2005); Muir v. C.R. Bard, Inc., 336 S.C. 266, 519 S.E.2d 583 (Ct.App.1999). The final determination of witness credibility and the weight to be accorded evidence is reserved to the appellate panel. Shealy v. Aiken County, 341 S.C. 448, 535 S.E.2d 438 (2000); Frame, 357 S.C. at 528, 593 S.E.2d at 495. The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. Sharpe v. Case Produce, Inc., 336 S.C. 154, 519 S.E.2d 102 (1999); DuRant v. South Carolina Dep't of Health & Envtl. Control, 361 S.C. 416, 604 S.E.2d 704 (Ct.App.2004). Where there are conflicts in the evidence over a factual issue, the findings of the appellate panel are conclusive. Etheredge v. Monsanto Co., 349 S.C. 451, 562 S.E.2d 679 (Ct.App.2002).

The findings of an administrative agency are presumed correct and will be set aside only if unsupported by substantial evidence. Anderson v. Baptist Med. Ctr., 343 S.C. 487, 541 S.E.2d 526 (2001); Hicks v. Piedmont Cold Storage, Inc., 335 S.C. 46, 515 S.E.2d 532 (1999). It is not within our province to reverse findings of the appellate panel which are supported by substantial evidence. Broughton v. South of the Border, 336 S.C. 488, 520 S.E.2d 634 (Ct.App.1999).

LAW/ANALYSIS

I. Maximum Medical Improvement

Mikasa argues the circuit court erred in affirming the appellate panel's finding that "Gadson had reached MMI and that she was totally and permanently disabled." Mikasa claims this ruling is not supported by substantial evidence. We disagree.

Maximum medical improvement is a term used to indicate that a person has reached such a plateau that in the physician's opinion there is no further medical care or treatment which will lessen the degree of impairment. Bass v. Kenco Group, 366 S.C. 450, 622 S.E.2d 577 (Ct.App.2005); Lee v. Harborside Café, 350 S.C. 74, 564 S.E.2d 354 (Ct.App.2002). However, the fact that a claimant has reached MMI does not preclude a finding the claimant still may require additional medical care or treatment. Dodge v. Bruccoli, Clark, Layman, Inc., 334 S.C. 574, 514 S.E.2d 593 (Ct.App.1999).

If an employee has reached MMI and remains disabled, then his injury is permanent. Smith v. South Carolina Dep't of Mental Health, 335 S.C. 396, 517 S.E.2d 694 (1999). When a claimant receiving temporary benefits reaches MMI and is still disabled, temporary benefits are terminated and the claimant is awarded permanent benefits. Smith, 335 S.C. at 399, 517 S.E.2d at 696; Bass, 366 S.C. at 467, 622 S.E.2d at 585. Once the commission affirms a finding of MMI, it is appropriate to terminate temporary benefits in favor of permanent disability benefits, if warranted by the evidence. Smith, 335 S.C. at 399, 517 S.E.2d at 696.

Dr. Wingate was Gadson's authorized treating physician. Gadson was seen by Dr. Wingate on May 7, 2002 "as a worsening of condition for her low back pain." Prior to that date, she had been last seen on September 14, 2001, when she was having continuing low back and radiating left leg pain. The CT scan from March 25, 2002 showed a solid bony union at L5-S1. In the May 7 note, Dr. Wingate stated that Gadson could consider an L4-5 epidural injection but he doubted she would need any additional surgery.

Gadson returned to Dr. Wingate on May 22, 2002, the date she was determined to be at MMI. Dr. Wingate recommended exercise to manage her symptoms. Dr. Wingate noted he would be happy to see Gadson in the future but declared: "In my opinion she does not need any further surgical intervention or invasive spinal care." Gadson was not given a return appointment.

Defense counsel wrote Dr. Wingate on July 17, 2002, requesting an impairment rating for Gadson. Dr. Wingate responded by letter dated August 15, 2002. He opined:

In my professional opinion, Ms. Gadson has sustained a 30% whole person impairment as a result of the significant injury to her lumbosacral spine, and the ongoing pain, parasthesias and motor weakness that she has to her right lower extremity. I do not feel that she will ever return to gainful employment. She has a sitting and standing intolerance of 15-20 minutes. She also has a severe deconditioning of her spine, and her medical condition in general.

....

Future medical expenses will most probably include the cost of epidural steroid injections, and intermittent physical therapy.... She continues to...