Linen v. Ruscon Const. Co.

• Decision Date: 24 April 1985
• Docket Number: No. 22314,22314
• Citation: 286 S.C. 67,332 S.E.2d 211
• Court: South Carolina Supreme Court
• Parties: Richard LINEN, Respondent, v. RUSCON CONSTRUCTION COMPANY, Employer, and Insurance Company of North America, Carrier, Appellants. . Heard

Page 211

332 S.E.2d 211

286 S.C. 67

Richard LINEN, Respondent, v. RUSCON CONSTRUCTION COMPANY, Employer, and Insurance Company of North America, Carrier, Appellants.

No. 22314.

Supreme Court of South Carolina.

Heard April 24, 1985.

Decided May 8, 1985.

Terri J. Morrill of Sinkler, Gibbs & Simons, Charleston, for appellants.

David T. Pearlman of Steinberg, Levkoff, Spitz & Goldberg, Charleston, for respondent.

HARWELL, Justice:

This workers' compensation action was initiated by the respondent Richard Linen against the appellants Ruscon Construction Company and Insurance Company of North America. The single commissioner found the claimant had suffered 20% permanent partial disability of the back. The Full Commission awarded the claimant compensation for 50% or more loss of use of the back, which is deemed to be total disability by S.C.Code Ann. § 42-9-30(19) (1976). The circuit court affirmed the Full Commission award, and we affirm.

On appeal, this Court must affirm an award by the Industrial Commission, in which the circuit court concurred, if substantial evidence supports the findings. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).

The appellants contend that substantial evidence does not support a finding that the claimant sustained a 50% or more loss of use of the back. In particular, the appellants argue that the medical testimony established, at most, a 30% impairment rating; that only the claimant's own testimony would support a finding of 50% disability- ; and that improper reliance was placed on the claimant's testimony. We disagree.

Unless the question of the extent of partial loss of use under Code § 42-9-30 is so technically complicated as to require exclusively expert testimony, lay testimony is admissible. The extent of loss of use need not be shown with mathematical precision. Nevertheless, the award may not rest on surmise, conjecture, or speculation; it must be founded on evidence of sufficient substance to afford it a reasonable basis. Bundrick v. Powell's Garage, 248 S.C. 496, 151 S.E.2d 437 (1966).

The record in the instant case contains testimony by a neurologist, an orthopaedic surgeon, the claimant, and a vocational counselor.

Dr. Wannamaker, the neurologist, testified that the claimant walked in a slightly flexed position. He had difficulty walking on his toes and heels and doing a full knee bend. After the doctor treated the claimant conservatively with spinal blocks, and he continued to have severe back pain, the doctor concluded that the claimant's back pain was permanent and resulted in a 15% impairment. He stated that repetitive bending or lifting would aggravate the claimant's condition.

Dr. Brilliant, an orthopaedic surgeon, stated that the claimant could only kneel very slowly and had difficulty climbing on and off the examination table. He confirmed the presence of back pain, could not suggest further treatment, and rated the claimant as having a permanent 20-30% impairment of the spine. He opined that heavy manual labor would aggravate the condition.

The claimant testified that he has continued to suffer low back pain, which increases upon bending or lifting. He cannot tie his shoes. He can stand for only 45 minutes at a time and sit for one hour, when he must change positions to alleviate back pain. At times, he must lie down during the day. His back pain affects his sleeping, forcing him to get up at 5:00 or 6:00 A.M. He often wears a back brace at night. The claimant estimated that he had suffered a 75% loss of use of his back.

Finally, the vocational rehabilitation...