Mungo v. Rental Uniform Service

• Decision Date: 27 May 2009
• Docket Number: No. 4550.,4550.
• Citation: 678 S.E.2d 825,383 S.C. 270
• Court: South Carolina Court of Appeals
• Parties: Gail MUNGO, Respondent, v. RENTAL UNIFORM SERVICE OF FLORENCE, INC., and Companion Commercial Ins., Appellants.

678 S.E.2d 825

383 S.C. 270

Gail MUNGO, Respondent, v. RENTAL UNIFORM SERVICE OF FLORENCE, INC., and Companion Commercial Ins., Appellants.

No. 4550.

Court of Appeals of South Carolina.

Heard March 3, 2009.

Decided May 27, 2009.

Rehearing Denied June 25, 2009.

Ellen H. Goodwin, of Columbia, for appellants.

Edward L. Graham, of Florence, for respondent.

WILLIAMS, J.:

Rental Uniform Service of Florence, Inc. and Companion Commercial Insurance (collectively referred to as Employer) appeal from the circuit court's order that found Gail Mungo (Claimant) was entitled to workers' compensation benefits for a change in condition to her spine and for psychological benefits. We affirm in part, reverse in part, and remand.

FACTS/PROCEDURAL HISTORY

In May 2000, Claimant sustained an admitted compensable injury to her cervical spine while working for Employer. Employer provided Claimant treatment by several physicians, including Dr. Bill Edwards of Pee Dee Orthopaedic Associates. Dr. Edwards performed a two-level cervical discectomy and fusion at discs C4/5 and C5/6 on Claimant in March 2001. Dr. Edwards later released Claimant on May 29, 2001, with a twenty percent impairment rating on her spine. Claimant was reevaluated by Dr. Edwards on May 2, 2003, and he found Claimant had reached maximum medical improvement (MMI) as of that date. Dr. Edwards reiterated Claimant's twenty percent impairment rating and placed Claimant on a twenty pound lifting restriction.

Claimant later sought treatment from Dr. Elizabeth Snoderly, an interventional anesthesiologist specializing in pain management, for ongoing pain. Dr. Snoderly first examined Claimant on June 3, 2003, and the records from this examination were made available on June 6, 2003. In these records, Dr. Snoderly diagnosed Claimant with (1) cervical facet joint syndrome, (2) muscle spasms not seen in earlier doctors' visits, and (3) loss of gross muscle strength.

A hearing was held on the matter before Commissioner Bryan Lyndon on June 10, 2003. At the start of this hearing, Employer objected to the introduction of Dr. Snoderly's report from her June 3, 2003 examination of Claimant, arguing the records were untimely. Commissioner Lyndon sustained this objection because Claimant failed to submit the report to Employer fifteen days prior to the hearing as required by Regulation 67-612 of the South Carolina Code of Regulations. Commissioner Lyndon proceeded with the hearing without any use or consideration of Dr. Snoderly's office notes or records.

After considering the other documents and testimony presented by both parties, Commissioner Lyndon found Claimant reached MMI on May 2, 2003, making her ineligible for any further medical treatment. Claimant was found to have sustained a forty percent partial disability from the original injury. Commissioner Lyndon allowed Employer to discontinue payments to Claimant for temporary total disability benefits and ordered any payments already made after the date of MMI to be applied against Claimant's permanent partial disability award. Employer was additionally ordered to pay for all of Claimant's causally-related and authorized medical treatment through May 2, 2003. Neither party appealed this decision.

On July 23, 2004, Claimant filed a Form 50, Request for Hearing, alleging a change of condition to her cervical spine and development of problems with her neck, right shoulder, right arm, and significant psychological conditions. A hearing was held before Commissioner Alan Bass on March 3, 2005. Commissioner Bass denied Claimant's request for benefits for a change of condition, and he filed his order on October 24, 2005. Significantly, however, Commissioner Bass stated:

I find that Claimant has not sustained a change of condition from an orthopaedic standpoint. That said, I must say that, if Dr. Snoderly's exam and diagnoses ... could be taken into account, I would have found a [c]hange of [c]ondition because of (1) Cervical facet joint syndrome; (2) Spasm absent in visits prior to hearing [on June 10, 2003]; and (3) Loss of strength from [5 out of 5 strength] to [2 out of 5 strength]. I find, as a matter of law, that because Dr. Snoderly's diagnoses were made prior to the hearing, they cannot be considered for [c]hange of [c]ondition.

Commissioner Bass additionally stated, "The Claimant may not now raise the issue of depression when she could have done so [at the] last hearing."

Claimant filed a Form 30, Request for Commission Review, alleging eighteen errors of law, and the Appellate Panel of the Workers' Compensation Commission (the Appellate Panel) affirmed Commissioner Bass's decision and order in all respects. Thereafter, Claimant appealed the Appellate Panel's decision to the circuit court.

Following a hearing, the circuit court reversed Commissioner Bass's findings Claimant had not proven a change of condition for the worse of her cervical spine and Claimant had not proven entitlement to psychological benefits. The circuit court found Claimant's original award from the June 10, 2003 hearing was based on medical records created on or before May 2, 2003, the date of MMI. Therefore, Commissioner Bass erred in stating he could not consider records created between May 2, 2003, and June 10, 2003, at the change of condition hearing. The circuit court additionally noted "the reliable, probative and substantial evidence of record proves that any symptoms of depression or other psychological conditions before the first hearing were mild, undiagnosed and untreated; and became full-blown thereafter, meeting formal diagnostic criteria and necessitating formal treatment by [the doctor] only after the first hearing[,]" meaning Claimant could not have raised the issue of depression at the June 10, 2003 hearing. The circuit court, therefore, remanded the case to the single commissioner to determine the precise benefits owed to Claimant for her change of condition and for her psychological condition. This appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (the APA) establishes the standard of judicial review for appeals from the Workers' Compensation Commission (the Commission). Jones v. Harold Arnold's Sentry Buick, Pontiac, 376 S.C. 375, 378, 656 S.E.2d 772, 774 (Ct.App.2008). 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 it may reverse where the decision is affected by an error of law. Hall v. United Rentals, Inc., 371 S.C. 69, 79, 636 S.E.2d 876, 882 (Ct.App.2006). This Court's review is, therefore, limited to determining whether the Appellate Panel's decision is unsupported by substantial evidence or controlled by an error of law. Corbin v. Kohler Co., 351 S.C. 613, 617, 571 S.E.2d 92, 95 (Ct.App.2002).

LAW/ANALYSIS

As a threshold matter, we must determine the appealability of the circuit court's order. This Court has held "that an order of the circuit court remanding a case for additional proceedings before an administrative agency is not directly appealable." Foggie v. Gen. Elec. Co., 376 S.C. 384, 388, 656 S.E.2d 395, 398 (Ct.App.2008). However, if the circuit court's order is a final judgment, then it is immediately appealable. Id. at 389, 656 S.E.2d at 398. "Generally, an order is a final judgment on one or more issues if it constitutes an ultimate decision on the merits." Brown v. Greenwood Mills, Inc., 366 S.C. 379, 387, 622 S.E.2d 546, 551 (Ct.App. 2005). "An order involves the merits if it finally determines some substantial matter forming the whole or part of some cause of action or defense in the case." Id.

In the current case, the circuit court ruled it was error for Commissioner Bass and the Appellate Panel (1) to exclude Dr. Snoderly's records from the change of condition hearing and (2) to not consider Claimant's psychological claims at the change of condition hearing. These rulings led the circuit court to order a reversal of the Appellate Panel's conclusions that Claimant had not proven a change of condition for the worse of her cervical spine involving problems with the neck, right shoulder, and right arm and Claimant had not proven entitlement to psychological benefits. The circuit court remanded the case to the single commissioner for a determination of what precise benefits were due to Claimant for her change of condition of her cervical spine and for her psychological conditions.

The circuit court's order mandates an award for change of condition to the cervical spine and for psychological benefits. This ruling is a decision on the merits because it decides with finality whether Claimant proved these changes in her condition. Although the circuit court remanded the issue of the precise damages to be awarded to Claimant, the single commissioner would have no choice but to award some damages to Claimant. Accordingly, the circuit court's order constitutes a final decision and is appealable. See id. at 388, 622 S.E.2d at 551 (finding that because the circuit court's order mandated apportionment, the court left the percentage of apportionment to the Commission on remand, so the Appellate Panel would have no choice but to allocate some part of the claimant's disability to the non-compensable cause, thus the circuit court's order constituted a final decision on the issue of apportionment, making it appealable).

Finding Employer's appeal is properly before us, we now address the merits of Employer's arguments. Employer first argues the circuit court erred in reversing the Appellate Panel's determination that Claimant did not sustain a change of condition for the worse. We disagree.

"The determination of whether a claimant experiences a change of condition is a question for the fact finder." Gattis v. Murrells Inlet VFW No. 10420, 353 S.C. 100, 107, 576 S.E.2d 191, 194 (Ct.App.2003). The Appellate Panel is the ultimate fact finder in...