Lyles v. Quantum Chemical Co. (Emery)

• Court: South Carolina Court of Appeals
• Writing for the Court: CURETON
• Citation: Lyles v. Quantum Chemical Co. (Emery), 434 S.E.2d 292, 315 S.C. 440 (S.C. App. 1993)
• Decision Date: 19 May 1993
• Docket Number: No. 2051,2051
• Parties: Ray F. LYLES, Respondent, v. QUANTUM CHEMICAL CO. (EMERY), Employer, and The Aetna Casualty & Surety Company, Carrier, Appellants. . Heard

Page 292

434 S.E.2d 292

315 S.C. 440

Ray F. LYLES, Respondent, v. QUANTUM CHEMICAL CO. (EMERY), Employer, and The Aetna Casualty & Surety Company, Carrier, Appellants.

No. 2051.

Court of Appeals of South Carolina.

Heard May 19, 1993.

Decided July 12, 1993.

Rehearing Denied Sept. 8, 1993.

Certiorari Denied April 8, 1994.

Jack D. Griffeth, Love, Thornton, Arnold & Thomason, Greenville, for appellants.

William H. Ehlies, Greenville, for respondent.

CURETON, Judge:

Ray F. Lyles filed a claim with the South Carolina Workers' Compensation Commission, alleging he was totally and permanently disabled as a result of a work-related injury to his back. The hearing commissioner found Lyles had lost 50% or more of the use of his back, rendering him totally and permanently disabled and entitling him to benefits pursuant to S.C.Code Ann. § 42-9-30(19). The full commission and the circuit court affirmed. On appeal, Lyles's employer, Quantum Chemical Co., and Quantum's insurance carrier, Aetna Casualty & Surety Company, assert the circuit court erred in affirming the commission's award pursuant to the authority of § 42-9-30(19) (1976). We affirm.

Lyles worked as a laborer with Quantum. At the hearing before the commissioner, Lyles testified he had sharp pains and his back "popped" while moving a 450-pound drum of chemicals. Despite three operations to his back, he stated he can't twist his body, bend over, run, sit for prolonged periods, perform manual labor, or work in his yard, without severe pain. He testified that despite pain, he is able to work because he alternates three days on the job with three days at home, where he is able to do whatever is necessary to relieve the pain.

Lyles was promoted in 1987 and after his second surgery. He testified if he lost his supervisor's job, he would find it difficult to find another job because all entry level positions require manual labor.

As a laborer, his annual base salary was $19,000, excluding overtime. His annual salary at the time of the hearing was $34,230.

Bernard Korty, Quantum's plant manager, testified Lyles has complained of pain and has stood during meetings to alleviate his pain. Although Korty does not work directly with Lyles, Korty has seen the claimant bend and stoop in doing his job since his accident. He stated Lyles was promoted because of his ability, not his injury, and Lyles's performance has been proficient and above average.

Quantum usually identifies and promotes supervisors from within the company. New employees begin at entry level, which involves manual labor. Quantum does not guarantee an employee a lifetime job, and Lyles does not have an employment contract.

At his deposition, Dr. Littlepage, the neurosurgeon who performed three operations on Lyles's back, testified Lyles suffers from spondylolisthesis, a shifting forward or misalignment of the fourth lumbar vertebrae. In as much as Lyles had no symptoms prior to the injury, Littlepage opined the surgery was necessitated by the injury, not by a possible pre-existing condition, and even if the condition pre-existed, it was exacerbated or aggravated by the injury. ¹ He testified Lyles's symptoms were consistent with his injury and despite three surgeries to relieve the pressure on nerves and to fuse vertebrae, Lyles's condition may progress and require additional surgery. Littlepage rated Lyles's "total impairment to the whole body" at 35%.

The commissioner found Lyles's injury was work-related. He observed Lyles did not have an injury to his back and was able to work without restriction prior to August 22, 1985, and that Littlepage associated Lyles's condition "to a reasonable medical certainty" with the accident. The commissioner also found Lyles was impaired 50% or more in the use of his back. He noted:

a 35% impairment to the whole body is equal to 175 weeks and 175 weeks is equal to 58% of the back. The only injury with which this case is concerned [about] is the low[er] back. Although the Commission is not equating 35% of the whole man to 58% of the back, it is significant that the overall rating given by [Littlepage] is 175 weeks.

The commissioner concluded Lyles was totally and permanently disabled and entitled to compensation and medical care under S.C.Code Ann. § 42-9-30(19) and Bateman v. Town & Country Furniture Co., 287 S.C. 158, 336 S.E.2d 890 (Ct.App.1985). ²

The appellants contended Lyles cannot be totally and permanently disabled because he continues to work full-time, and regardless of his alleged permanent and total disability, he must demonstrate a loss of earnings to qualify for the payment of benefits, citing S.C.Code Ann. § 42-9-10.

The commissioner noted Lyles cannot do the type of work he was doing at the time of the accident, and under Bateman and § 42-9-30(19), compensation is based on the character of the injury, not loss of earnings as required by § 49-2-10.

The full commission affirmed with two members voting with the single commissioner. Three commissioners found Lyles had suffered a 45% disability to the back and voted to affirm with amendment.

I.

The appellants argue Lyles is not entitled to benefits under S.C.Code Ann. § 42-9-30 because there was insufficient evidence to establish he had suffered a greater than 50% impairment to his back. They contend the commissioner erred by converting Littlepage's "whole man" impairment rating of 35% to an impairment rating for the back of 58%.

In reviewing the decision of the commission, we will not set aside its findings unless they are not supported by substantial evidence or they are controlled by an error of law. Lail v. Georgia-Pacific Corp., 285 S.C. 234, 235, 328 S.E.2d 911, 912 (1985). A finding is supported by substantial evidence "unless there is no reasonable probability that the facts could be as related by a witness upon whose testimony the finding was based." A finding upon which reasonable men might differ will not be set aside. Lark v. Bi-Lo, Inc., 276 S.C. 130, 136, 276 S.E.2d 304, 307 (1981).

We agree with the circuit court that the commissioner did not "convert" Littlepage's "whole man" impairment rating to a back impairment rating. Our review of the commissioner's order suggests he considered all expert and lay testimony, the credibility of these witnesses, and other medical evidence, in finding that Lyles suffered more than a 50% impairment to his back.

Although an impairment rating may not rest on speculation or conjecture, it need not be shown by mathematical precision and it may rely on lay testimony. Linen v. Ruscon Constr. Co., 286 S.C. 67, 68, 332 S.E.2d 211, 212 (1985) (although expert testimony suggested the claimant suffered from a 20-30% impairment to his back, testimony of claimant and vocational expert was substantial evidence the claimant's impairment exceeded 50%). The commission may find a degree of disability different from that suggested by expert testimony. Cropf v. Pantry, Inc., 289 S.C. 106, 108, 344 S.E.2d 879, 881 (Ct.App.1986) (this Court reversed the circuit court and affirmed the commission's finding of a 30% impairment to the back although physicians had testified the claimant was not impaired...