Lee v. Bondex, Inc.

• Citation: 406 S.C. 97,749 S.E.2d 155
• Decision Date: 25 September 2013
• Docket Number: Appellate Case No. 2011–203326.,No. 5173.,5173.
• Parties: Bernard D. LEE, Respondent, v. BONDEX, INC., and Great American Alliance Insurance Company, Appellants.
• Court: Court of Appeals of South Carolina

406 S.C. 97

749 S.E.2d 155

Bernard D. LEE, Respondent,

v.BONDEX, INC., and Great American Alliance Insurance Company, Appellants.

Appellate Case No. 2011–203326.

No. 5173.

Court of Appeals of South Carolina.

Heard May 8, 2013.

Filed Sept. 25, 2013.

E. Ros Huff, Jr. and Shelby H. Kellahan, both of Huff Law Firm, LLC, of Irmo, for Appellants.

Ann McCrowey Mickle, Mickle & Bass, LLC, of Columbia, and Michael Joseph O'Sullivan of the Law Office of Michael Joseph O'Sullivan, of Conway, for Respondent.

FEW, C.J.

Bondex, Inc. and its workers' compensation insurance carrier appeal the decision of the workers' compensation commission awarding Bernard Lee temporary total disability compensation.¹ Bondex argues the commission erred in (1) finding Lee's injuries were compensable, (2) finding Lee was entitled to temporary total disability compensation, and (3) holding its decision on parts of Lee's claim in abeyance. We affirm, and remand for disposition of the remainder of Lee's claim.

I. Facts and Procedural History

Lee worked for Bondex in a position that required heavy lifting, pushing, and pulling.

On June 2, 2009, Lee and four other Bondex workers installed a large metal hood onto a machine in Bondex's plant. The hood weighed between 1500 and 2000 pounds. Lowell Simpkins, Lee's supervisor, lifted the hood using a forklift. Simpkins drove the forklift to the machine, where Lee and the three other workers were to guide the hood into place.

Lee testified that once they moved the hood into position, Simpkins had to hold it above the machine with the forklift while one worker installed a part between the machine and the hood. However, the forklift had a hydraulic fluid leak and could not hold the hood high enough to install the part. Lee testified that when he and the other workers attempted to lift the hood manually, it fell and a sharp edge of it landed on his left shoulder, pinning him to the ladder on which he was standing. Lee testified he then lifted the hood “up enough to ease out from under it.”

Lee immediately told Simpkins his shoulder did not feel right. He tried to continue working, but pain began shooting down his back. After Lee and Simpkins reported the injury, Lee's father picked him up and drove him to the hospital.

Bondex initially paid for Lee's medical care. Dr. Jeffrey Broder restricted Lee from doing any work with his left hand. Bondex placed Lee on light duty, so initially he did not miss any work. His light-duty assignments involved working with bales of polyester fiber, spraying them with water, and then loading the fiber onto a table. He also cleaned machines twice a week.

In late July 2009, Bondex stopped paying for Lee's medical care. He continued working light duty, but he testified his arm would be swollen by the end of his shift each day. Simpkins assigned Lee to change labels on pallets, but because that activity also caused Lee's arm to hurt, he was assigned to sweeping floors.

The day after Bondex discontinued his medical payments, Lee filed a claim with the commission. After a hearing, Lee and Bondex submitted a consent order in which Bondex agreed to pay Lee $5,000 and provide him additional medical treatment. Dr. Timothy Shannon, an orthopedist, imposed additional work restrictions on Lee. When Lee presented Dr. Shannon's work restrictions to Bondex's vice president and an employee from its human resources department, Bondex terminated him.

Lee then filed a claim for temporary total disability benefits, alleging he injured his neck, shoulders, arms, and back. Lee and Simpkins testified at a second hearing before a single commissioner. Both parties submitted medical evidence, including the opinions of doctors, regarding the nature of Lee's injuries and whether they were caused by the hood falling on his shoulder. The commissioner found Lee had not sustained a compensable injury and denied the claim.

A divided appellate panel reversed. Relying on Lee's testimony and the opinions of four doctors, the majority of the appellate panel found that the falling hood caused the injuries to Lee's neck, left arm, and left shoulder, and thus the injuries were compensable. The panel then found that because Bondex did not offer Lee any light-duty work after he presented Dr. Shannon's restrictions, he was entitled to temporary total disability compensation. Finally, noting that Lee was also seeking compensation for injuries to his right shoulder, right arm, and lower back, the panel decided to hold those parts of Lee's claim in abeyance pending further review.

II. Finding Lee Sustained a Compensable Injury

Bondex argues the appellate panel's factual finding that Lee sustained compensable injuries to his neck, left shoulder, and left arm was “clearly erroneous in view of the reliable, probative, and substantial evidence” in the record. S.C.Code Ann. § 1–23–380(5)(e) (Supp.2012). We disagree. In addition to Lee's testimony that the hood falling on his shoulders caused his injuries, the appellate panel specifically relied on four doctors who examined Lee, each of whom gave the opinion that the accident caused his injuries. The appellate panel specifically found the four doctors' opinions were “more persuasive on the issue of causation” than other medical evidence indicating the injury was not work-related. This credibility determination by the appellate panel, if supported by substantial evidence, is binding on the court. See§ 1–23–380(5) (“The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact.”). We find the appellate panel's decision is supported by substantial evidence, and therefore not clearly erroneous. See Johnson v. Rent–A–Ctr., Inc., 398 S.C. 595, 600–01, 730 S.E.2d 857, 860 (2012) (defining substantial evidence as that “which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached”); Jones v. Harold Arnold's Sentry Buick, Pontiac, 376 S.C. 375, 378, 656 S.E.2d 772, 774 (Ct.App.2008) (stating this court's review of a decision by the commission is limited to determining whether the decision is supported by substantial evidence or is controlled by some error of law). We affirm the commission's finding that Lee sustained compensable injuries to his neck, left shoulder, and left arm.

III. Awarding Temporary Total Disability Compensation

Bondex next argues the appellate panel erred in ruling Lee was entitled to temporary total disability compensation. Specifically, Bondex contends the factual finding that Lee was temporarily and totally disabled is clearly erroneous in light of the reliable, probative, and substantial evidence in the record. We find substantial evidence in the record to support the finding.

After the accident, Bondex assigned Lee to light-duty work with bales of polyester fiber. When Lee told Simpkins this job made his arm hurt, Simpkins assigned Lee to a job removing old labels from pallets and putting new labels on them. Lee told Simpkins his arm pain prevented him from doing that job, so Bondex had Lee sweep floors.

Later, Dr. Shannon placed Lee under a number of work restrictions. Under these restrictions, Lee could not perform frequent pushing or pulling; he could only occasionally bend, stoop, squat, crouch, reach above his left shoulder, drive, or lift up to ten pounds; he could only infrequently crawl, use stairs, or lift up to twenty pounds; and he could not use a ladder, operate hazardous equipment, or lift anything heavier than twenty pounds. However, Dr. Shannon did not restrict Lee from continuously standing, sitting, walking, reaching above his right shoulder, or performing repetitive work with his hands or feet. Based on these restrictions, Bondex told Lee not to come back to work. We find this evidence sufficient to support the appellate panel's finding that Lee was temporarily and totally disabled, and we affirm its decision to award Lee temporary total disability.

The claimant bears the burden of proving entitlement to temporary disability compensation. In its brief to this court, Bondex states, “To show that one is entitled to temporary total disability benefits, one must prove that ‘the incapacity for work resulting from an injury is total.’ ” (quoting S.C.Code Ann. § 42–9–10 (Supp.2012)). To meet this burden in a claim for temporary disability benefits, Bondex argues, a claimant must go into the marketplace and seek from other employers a job that does not conflict with his work restrictions. We disagree. This is not a claim for permanent disability compensation. For temporary disability benefits, a claimant must prove only that work restrictions prevent him from performing the job he had before the injury, and that his current employer has not offered him light-duty employment. For sound policy reasons, the workers' compensation system encourages an injured employee who is still able to perform light-duty work to continue working for his current employer until he reaches maximum medical improvement and then, if possible, to return to his previous position. Therefore, while a claimant must prove disability, he is not required to prove he could not find employment with another employer in order to receive temporary disability benefits. Rather, the claimant satisfies his burden by proving work restrictions that prevent him from performing his regular job and the unavailabilityof light-duty employment through the same employer.

Bondex relies on Coleman v. Quality Concrete Products, Inc., 245 S.C. 625, 142 S.E.2d 43 (1965), in support of its argument that Lee failed to meet his burden of proving entitlement to temporary total disability compensation. We find Coleman is not applicable to this case. In Coleman, the industrial commission awarded total disability compensation. 245 S.C. at 627–28, 142 S.E.2d at 44. The employer appealed to the county court, which reversed the commission's award “only insofar as the...