Hendricks v. Pickens County

Decision Date15 March 1999
Docket NumberNo. 2958.,2958.
Citation335 S.C. 405,517 S.E.2d 698
CourtSouth Carolina Court of Appeals
PartiesDennis Randall HENDRICKS, Employee, Appellant, v. PICKENS COUNTY, Employer, and Association of Counties Self-Insurance Fund, Carrier, Respondents.

Edwin L. Turnage, of Greenville, for appellant.

Richard B. Kale, Jr., of Greenville, for respondents.

ORDER DENYING PETITION FOR REHEARING

PER CURIAM:

After careful consideration of the Petition for Rehearing, the Court is unable to discover any material fact or principle of law that has been either overlooked or disregarded and, hence, there is no basis for granting a rehearing. It is, therefore, ordered that the Petition for Rehearing be denied. However, Opinion Number 2958, filed March 15, 1999, is withdrawn and the attached opinion is substituted.

HEARN, Judge:

In this workers' compensation case, Dennis Randall Hendricks, the employee, appeals from a circuit court order that substantially affirmed the findings of the Full Commission. We reverse and remand to the Full Commission.

FACTS

Hendricks, a paramedic employed by Pickens County for fourteen years, injured his back and left leg on February 21, 1995, when he stepped into a hole while on an evening emergency call. Hendricks was carrying medical equipment weighing approximately 150 pounds at the time of the incident.

Hendricks filed a Form 50 on March 30, 1995. On April 11, 1995, Hendricks's vertebrae at L5-S1 were fused. At the same time, he underwent an L4-5 laminectomy and foraminotomy, and L5-S1 foraminotomy to his spine. On May 1, 1995, Respondents filed a Form 51, contending there was no injury by accident and refusing to pay for any of Hendricks's medical treatment.

A hearing was held on November 30, 1995, before a commissioner who found that Hendricks had suffered an injury to his back and left leg. The commissioner found Hendricks had reached maximum medical improvement (MMI) with regard to his back on July 25, 1995, but had not reached MMI with regard to his left knee. The commissioner further ordered that Respondents were liable for all medical expenses causally related to the February 21, 1995, injury until such time as Hendricks reached MMI.

On April 15, 1996, Respondents filed an application to stop payment of Hendricks's temporary total disability (TTD) benefits, alleging he had reached MMI. Following a hearing, the commissioner issued an order finding that Hendricks had reached MMI with regard to his left knee on December 11, 1995, and that he had a 20% impairment to the left leg and a 19% impairment to the back. The commissioner also found Respondents were entitled to a credit for all TTD benefits paid after April 15, 1996, the date they filed their stop payment request. Both parties requested review by the Full Commission.

The Full Commission modified the single commissioner's order in two ways: first, it increased the permanent impairment to Hendricks's back to 40%, and second, it awarded Respondents a credit for all TTD compensation paid after December 11, 1995, the date Hendricks reached MMI. In all other respects, the Full Commission affirmed the single commissioner's order.

Both sides appealed to the Pickens County Circuit Court. The circuit court judge affirmed the Full Commission's decision except for the 40% impairment rating to Hendricks's back. Finding there was no substantial, reliable, or probative evidence to support the 40% impairment, the circuit court reinstated the single commissioner's award of 19% permanent disability to the back. Hendricks appeals.

STANDARD OF REVIEW

The duty to determine facts is placed solely on the commission. The court reviewing the commission's decision has no authority to determine factual issues but must remand the matter to the commission for further proceedings. Fox v. Newberry County Mem'l Hosp., 319 S.C. 278, 280, 461 S.E.2d 392, 394 (1995). On appeal from the commission, this court may not substitute its judgment for the commission's as to the weight of evidence on questions of fact, but may reverse when the decision is affected by an error of law. Stephen v. Avins Constr. Co., 324 S.C. 334, 337, 478 S.E.2d 74, 76 (Ct.App.1996). The appellate court's review is limited to deciding whether the commission's decision is unsupported by substantial evidence or is controlled by some error of law. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981)

; Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 381, 440 S.E.2d 401, 403 (Ct.App.1994).

DISCUSSION

Hendricks raises eleven issues on appeal. They can be fairly summarized as follows:

1. Whether the circuit court erred in affirming the commission's decision to not award compensation under the general disability statutes?
2. Whether the circuit court erred in reinstating the single commissioner's finding of a 19% impairment to Hendricks's back?
3. Whether the circuit court erred in affirming the commission's order granting Respondents a credit for any TTD payments made after Hendricks reached MMI?
4. Whether the circuit court erred in concluding that Respondents were not liable for medical treatment for Hendricks's back after he reached MMI?
5. Whether the circuit court erred in affirming the commission's award under South Carolina Code section 42-9-30 when the commission did not review the videotapes admitted into evidence before the single commissioner?
I. General disability compensation versus scheduled member

Hendricks argues he was qualified to receive disability compensation under the general disability statutes, South Carolina Code sections 42-9-10 and 42-9-20 (1976 & Supp. 1998). He contends the commission failed to make sufficient findings of fact concerning his entitlement to general disability benefits and that the case should be remanded for further findings in this regard. We agree this issue should be remanded.

Hendricks clearly asserted his entitlement to general disability compensation before the single commissioner. "[A] claimant may proceed under § 42-9-10 or § 42-9-20 to prove a general disability; alternatively, he or she may proceed under § 42-9-30 to prove a loss, or loss of use of, a member, organ, or part of the body for which specific awards are listed in the statute." Fields v. Owens Corning Fiberglas, 301 S.C. 554, 555, 393 S.E.2d 172, 173 (1990). Nevertheless, the commissioner's order does not address this issue.1 Hendricks also raised this issue before the Full Commission and before the circuit court.

The Full Commission affirmed the order of the single commissioner in all respects except that it increased the permanent disability compensation for injuries to Hendricks's back from 19% to 40%; however, it did not analyze whether Hendricks was entitled to total or partial permanent disability benefits under section 42-9-10 or section 42-9-20. This was error. See Morgan v. JPS Automotives, 321 S.C. 2012, 2014-15, 467 S.E.2d 457, 459 (Ct.App.1996)

(Where the single commissioner failed to make any findings regarding appellant's claim that her disability extended beyond the disability to the scheduled member, the case was remanded to the commission for specific findings of fact on that issue.), cert. dismissed as improvidently granted, 326 S.C. 261, 486 S.E.2d 263 (1997); see, e.g., Gilliam v. Woodside Mills, 319 S.C. 385, 461 S.E.2d 818 (1995) (holding case should have been remanded to commission to address claimant's eligibility for an award under sections 42-9-10 and 42-9-20 when substantial evidence showed injury not confined to scheduled member). Accordingly, we remand this issue to the commission for specific findings as to whether Hendricks's disability extends beyond the disabilities to the scheduled members.

II. Reinstatement of single commissioner's finding of a 19% impairment to the back

Hendricks contends the circuit court erred in reinstating the single commissioner's finding of a 19% impairment to Hendricks's back rather than affirming the commission's finding of a 40% back impairment. We find there was substantial evidence in the record to support the commission's conclusion. Therefore, it was error for the circuit court judge to substitute his findings of fact on this issue for those found by the commission. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981)

; Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377, 381, 440 S.E.2d 401, 403 (Ct.App.1994). We reverse and reinstate the commission's finding of a 40% impairment, subject to the commission's decision to award Hendricks total or partial disability benefits under the general disability versus scheduled member statutes.

III. Propriety of credit to Respondents for TTD benefits paid after date of MMI

Hendricks argues it was error to grant Respondents a credit for temporary disability benefits paid during the period between his reaching MMI on December 11, 1995, and the commission's order dated October 23, 1996. Hendricks contends he remained totally disabled and unable to work, arguing a finding of MMI does not establish an end to his disability or to his entitlement to benefits. We find no error.

The first single commissioner's order, dated February 26, 1996, found Hendricks reached MMI with regard to his back on July 25, 1995, but found the employer liable for continuing TTD payments until Hendricks reached MMI for all injuries arising from his work-related accident. This unappealed order is the law of this case. Smith v. South Carolina Dept. of Mental Health, 329 S.C. 485, 502 n. 9, 494 S.E.2d 630, 639 n. 9 (Ct.App.1997) ("`[A]ll findings of fact and law by the Hearing Commissioner became and are the law of [the] case, except only those within the scope of the exception of defendant and the notice given to the parties by the Commission....'" (quoting Ham v. Mullins Lumber Co., 193 S.C. 66, 74, 7 S.E.2d 712, 716 (1940))), cert. granted, (Oct. 7, 1998).

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