Sanders v. Meadwestvaco Corp.

• Decision Date: 02 October 2006
• Docket Number: No. 4157.,4157.
• Citation: 638 S.E.2d 66
• Court: South Carolina Court of Appeals
• Parties: Kenneth W. SANDERS, Respondent, v. MEADWESTVACO CORPORATION, Self-Insured Employer, Appellant.

638 S.E.2d 66

Kenneth W. SANDERS, Respondent, v. MEADWESTVACO CORPORATION, Self-Insured Employer, Appellant.

No. 4157.

Court of Appeals of South Carolina.

Heard June 14, 2006.

Decided October 2, 2006.

Rehearing Denied December 20, 2006.

Kirsten Leslie Barr, of Mt. Pleasant, for Appellant.

Ben C. Harrison, of Spartanburg, for Respondent.

CURETON, A.J.:

In this workers' compensation action, MeadWestvaco Corporation (Westvaco) appeals the circuit court's order affirming the Appellate Panel of the Workers' Compensation Commission (Appellate Panel) awarding Kenneth Sanders (Sanders) a 40% permanent partial disability to his lumbar spine and sacroiliac joint (SI joint). Westvaco also appeals the circuit court's failure to find it was entitled to credit for overpayment of temporary total disability from the date Sanders reached maximum medical improvement. We affirm in part, reverse in part, and remand.

FACTS

Sanders, a chip mill operator employed by Westvaco, was injured on March 16, 2001, when a front-end loader flung a piece of wood that struck Sanders in his knee. Sanders was taken immediately to the emergency room where he was treated for the injury.

Several months later Sanders began to complain about lower back pain that radiated into his right hip and buttock region. On August 27, 2001, Dr. Phillip Milner noted that Sanders was having a "palpable snap" of the right SI joint, occurring repetitively when he turned his leg or lifted his leg, which he described as a "very consistent and a noticeable finding." After an MRI scan showed a herniated disc at L4/5 with right L5 root involvement, Dr. Milner referred Sanders to Dr. Charles Hughes for an epidural injection.

Dr. Hughes attempted to treat Sanders' herniated disc with several epidural steroid injections, followed by a right SI joint block injection procedure. He believed, as did Dr. Jacquelyn Van Dam, who was consulted to perform an EMG study, that the herniated disc was not a reasonable source of Sanders' back pain and that surgery would not benefit him. When conservative treatment failed to make a notable difference, Dr. Hughes referred Sanders to Dr. William Felmly at the Moore Orthopedic Clinic for another surgical opinion.

After meeting with Sanders on a single occasion, Dr. Felmly concluded Sanders had a chronic SI joint problem but surgery was not warranted. Dr. Felmly opined Sanders had a 2% permanent partial impairment of the SI joint. After reviewing Dr. Felmly's report, Dr. Hughes found Sanders had reached maximum medical improvement (MMI) and had a 12% impairment of the SI joint and a whole person impairment of 2%. Further, Dr. Hughes believed, as did Dr. Felmly, that Sanders was limited by his own subjective complaints.

Sanders then saw Dr. Samuel Seastrunk. After an independent medical evaluation of Sanders, Dr. Seastrunk stated Sanders had: (1) an L4/5 disc herniation with significant involvement of the L5 nerve root and radiculitis, and (2) a complex problem with SI instability. Dr. Seastrunk, in sharp contrast with previous doctors, rated the impairment of the lumbar spine at 18%, and an impairment of 22% to the whole person.

On September 26, 2002, Westvaco filed a Form 21 Hearing Request seeking to stop payment of temporary total disability benefits. Moreover, Westvaco sought a credit for any overpayment beyond Sanders' date of MMI, which both parties stipulated occurred on August 21, 2002. Also, Westvaco questioned the compensability of Sanders' claim of anxiety and depression as well as the extent of his disability. Sanders contended he was permanently and totally disabled and sought additional medical care.

After a hearing, the single commissioner concluded Sanders did not meet his burden of proving his depression and anxiety were causally related to his work-related injury. The single commissioner also found that Sanders had a 13% loss of use of his right leg due to the accident. Further, the single commissioner found:

After considering the opinion of Dr. Seastrunk and his impairment rating of 22%, and after considering the opinions of Dr. Hughes, Dr. VanDam, and Dr. Felmly suggesting that the Claimant's subjective complaints are out of proportion with his objective physical findings ... and after considering the opinions [of all of the doctors] indicating that the Claimant did not need surgery or other invasive treatment as a result of the March 16, 2001 accident; and notwithstanding the Dr. Hughes's and Dr. Felmly's opinion that Claimant sustained only a 2% impairment, I find that the Claimant is credible and has a 40% loss of use of his lumbar spine and SI Joint as a result of chronic pain and a potential need for surgery to these areas.

Accordingly, the single commissioner found Sanders was entitled to future medical treatment "for medication, pain management, his TENS unit, and SI belt" to lessen his period of disability. The single commissioner granted Westvaco's request to terminate temporary total disability compensation but found Westvaco was only entitled to a credit for overpayment for the period after January 16, 2003, which was the day before the hearing.

The Appellate Panel affirmed the single commissioner, adopting the single commissioner's findings in full. Following a hearing on the matter, the circuit court affirmed the decision of the Appellate Panel, finding the decision was supported by substantial evidence in the record and that Sanders' testimony alone provided substantial evidence to support the finding that he had 40% loss of use of his back. This appeal followed.

STANDARD OF REVIEW

The Administrative Procedures Act establishes the standard of review for decisions by the Appellate Panel. Lark v. Bi-Lo, Inc., 276 S.C. 130, 134-35, 276 S.E.2d 304, 306 (1981). In workers' compensation cases, the Appellate Panel is the ultimate fact finder. Shealy v. Aiken County, 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000). The Appellate Panel is specifically reserved the task of assessing the credibility of the witnesses and the weight to be accorded evidence. Id.

On appeal from the Appellate Panel, this court may reverse or modify a decision if the findings or conclusions of the Appellate Panel are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record." S.C.Code Ann. § 1-23-380(A)(6)(e) (2005). This court cannot substitute its judgment for that of the Appellate Panel as to the weight of the evidence on questions of fact. Shealy, 341 S.C. at 455, 535 S.E.2d at 442. 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." Lark, 276 S.C. at 136, 276 S.E.2d at 307.

LAW/ANALYSIS

I. Section 42-9-30 Analysis

On appeal, Westvaco first argues that section 42-9-30 of the South Carolina Code (1985) permits disability awards based on degrees of medical impairment to specified body parts, and the circuit court erred in affirming an award of benefits based upon impairment to functional units of the back, i.e., the lumbar spine and SI joint which are not scheduled for compensation under section 42-9-30. We disagree.

The Appellate Panel concluded Sanders was entitled to compensation under section 42-9-30(19) for "permanent loss of use of the lumbar spine and SI joint." Section 42-9-30(19) provides for compensation for injury to the back as follows:

For the total loss of use of the back, sixty-six and two-thirds percent of the average weekly wages during three hundred weeks. The compensation for partial loss of use of the back shall be such proportions of the periods of payment herein provided for total loss as such partial loss bear to total loss ....

In affirming the Appellate Panel, the circuit court interpreted the Appellate Panel's order to have awarded benefits based on injuries to the back. The circuit court concluded "[a] review of the record reflects that these injuries and disabilities were clearly to the back." Westvaco's argument that because the Appellate Panel's order was too specific in identifying the regions of the back where Sanders' loss of use occurred and that these regions are somehow separate from the back itself is without merit.

Accordingly, even though the SI joint and lumbar spine are not specifically mentioned in section 42-9-30, we find no reversible error in the manner in which the Appellate Panel characterized Sanders' injuries.¹ A review of the Appellate Panel's order and the record reflects Sanders' injury and subsequent disability was clearly to his back. This approach is consistent with our policy of liberally construing the Workers' Compensation Act in favor of coverage. Schulknight v. City of N. Charleston, 352 S.C. 175, 178, 574 S.E.2d 194, 195 (2002); see also Mgmt. Recruiters v. R.J.R. Mech., Inc., 304 S.C. 399, 401, 404 S.E.2d 908, 909 (Ct.App.1991) (finding when construing a judgment, the determinative factor is the "intent of the officer who wrote it, as gathered not from an isolated part of the judgment, but from all parts thereof").

II. Impairment Rating

Next, Westvaco argues the evidence was insufficient to establish Sanders suffered a 40% loss of use of his back. Westvaco's contentions are twofold: (1) the medical testimony established, at most, a 22% impairment rating; and (2) the circuit court erred in affirming an award based upon the potential need for future surgery.

A. Evidence of Impairment

Westvaco argues Sanders is not entitled to benefits because the evidence was insufficient to establish he suffered a 40% loss of use of his back. Westvaco contends only the opinion of medical experts can be used to assess Sanders' impairment. We disagree.

Westvaco argues that since Sanders was awarded disability under § 42-9-30, Wigfall v. Tideland Util., Inc., 354 S.C. 100, 580 S.E.2d 100 (2003), should be controlling regarding the impairment rating. After reviewing the Wigfall court's decision, we...