Tedder v. Darlington Cnty. Cmty. Action Agency
| Decision Date | 01 August 2018 |
| Docket Number | Appellate Case No. 2016-001003,Unpublished Opinion No. 2018-UP-349 |
| Court | South Carolina Court of Appeals |
| Parties | Verma Tedder, Employee, Claimant, Appellant, v. Darlington County Community Action Agency, Employer, and State Accident Fund, Carrier, Respondents. |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From The Workers' Compensation Commission
AFFIRMED
Stephen J. Wukela, of Wukela Law Office, of Florence, for Appellant.
G. Murrell Smith, Jr., of Lee, Erter, Wilson, Holler & Smith, LLC, of Sumter, for Respondents.
Appellant Verma Tedder challenges a decision of the Appellate Panel of the South Carolina Workers' Compensation Commission (Appellate Panel) denying her claim for total and permanent disability benefits and future medical treatment. Tedder argues the Appellate Panel erred in (1) declining to consider her vocational report; (2) finding that her functional capacity report was invalid; (3) ignoring her work restrictions and her physical therapist's records; and (4) awarding Respondents over a year of credit for temporary benefits paid to Tedder. We affirm.
(emphasis added). This language establishes merely a prerequisite to the admission of an expert's report into evidence and does not take away the single commissioner's authority to exclude such a report for other reasons. See S.C. Code Ann. § 1-23-330(1) (2005) (); cf. Michau v. Georgetown Cty. ex rel. S.C. Ctys. Workers Comp. Tr., 396 S.C. 589, 594, 723 S.E.2d 805, 807 (2012) ().
We acknowledge that Regulation 67-612 states, in pertinent part, that any "report submitted to the opposing party in accord with [S.C. Code Ann. Regs. 67-612(B)(1)] or [(B)(2)] . . . shall be submitted as an APA exhibit at the hearing unless withdrawn with the consent of the other party." S.C. Code Ann. Regs. 67-612(D) (2012). Further, "[g]reat liberality is to be exercised in allowing the introduction of evidence in workers' compensation proceedings." Trotter v. Trane Coil Facility, 384 S.C. 109, 116, 681 S.E.2d 36, 40 (Ct. App. 2009), rev'd on other grounds, 393 S.C.637, 714 S.E.2d 289 (2011). On the other hand, "[a]dministrative agencies are required to meet minimum standards of due process." Smith v. S.C. Dep't of Mental Health, 329 S.C. 485, 500, 494 S.E.2d 630, 638 (Ct. App. 1997) (citing S.C. Const. art. 1, § 3).
Tedder's refusal to submit to an evaluation by Respondents' vocational expert would have placed Respondents at an unfair disadvantage had the single commissioner or the Appellate Panel considered and given any weight to Tedder's vocational report, thus depriving Respondents of due process. See id. (). Further, the single commissioner's and the Appellate Panel's refusal to consider Tedder's vocational report was fair to Tedder because she persisted in her refusal to submit to an evaluation by Respondents' expert even after the single commissioner warned her that if she chose not to submit to the evaluation, the single commissioner would not consider Tedder's own vocational report.
Based on the foregoing, we affirm the exclusion of Tedder's vocational report from consideration in determining permanent disability benefits.
Tedder asserts the Appellate Panel erred by adopting the single commissioner's finding that the conclusion in Tedder's functional capacity evaluation (FCE) report was invalid. Tedder argues that this finding constituted the single commissioner's own personal interpretation of test results, which this court condemned in Burnette v. City of Greenville, 401 S.C. 417, 428, 737 S.E.2d 200, 206 (Ct. App. 2012).
In Burnette, the single commissioner, who also conducted the initial hearing in the present case, found that an MRI "showed 'only a "minimal" protrusion with no nerve root displacement or impingement, and comparatively, no greater pathology of any significance (if any) than'" an MRI conducted four years previously. 401 S.C. at 428, 737 S.E.2d at 206. This court concluded the single commissioner's finding was unsupported by substantial evidence and was "[p]articularly disturbing." Id. The court stated, "Because no evidence indicates this opinion originated from a medical provider, yet it appears in the single commissioner's order, we are forced to conclude it is the medical opinion of the single commissioner, adopted by the Commission." Id.
Here, the FCE was performed by a non-treating physical therapist, Tracy Hill. After performing the FCE, Hill concluded that Tedder could "meet the demands of limited sedentary to limited light work" and listed several work restrictions. Hill also noted the limitations of the FCE itself. For example, Hill stated the results of the handgrip test indicated "submaximal effort" and "[t]readmill testing was attempted but not completed."
On the other hand, Hill noted that she conducted several tests to determine whether Tedder was magnifying or exaggerating her symptoms (identified as "the Waddell Signs") and the results on all of them were negative. The results of several other tests indicated that Tedder would perform part of the assigned task but would request termination of the test when she felt increased pain. However, she was able to complete the "Dynamic Reaching" test despite her complaint of increased left knee pain. Further, Hill noted the results of the Lumber Range of Motion testing were "AMA Valid."
In her order, the single commissioner addressed the FCE in the following manner:
[Tedder] obtained her own FCE from Tracy Hill, the conclusion of which is not persuasive[] and which is in fact invalid: even Hill notes that (a) [Tedder's] handgrip testing did not result in a bell-shaped curve (which is particularly compelling since this is a knee and back case), indicating sub-maximal effort; and (b) [Tedder] repeatedly self-limited throughout/actually terminated testing . . . .
(single commissioner's emphasis). The Appellate Panel adopted this language in its order. Because there was no expert evidence supporting the finding that the FCE report's conclusion was invalid, this precise language was inappropriate. Cf. Burnette, 401 S.C. at 428, 737 S.E.2d at 206 ().
Nonetheless, as "the ultimate fact finder," the Appellate Panel is entitled to weigh the evidence as it sees fit. See Shealy v. Aiken Cty., 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) (); id. (). Aside from characterizing the FCE report's conclusion as invalid, the Appellate Panel found the report's conclusion unpersuasive, which was within their authority, and the panel members could have attributed little or no weight to the report in favor of the evidence generated by Tedder's treating physicians. Cf. Burnette, 401 S.C. at 427, 737 S.E.2d at 206 (). Therefore, the inappropriate characterization of the FCE report's conclusion as invalid is not reversible. Judy v. Judy, 384 S.C. 634, 646, 682 S.E.2d 836, 842 (Ct. App. 2009) ().
Tedder contends the Appellate Panel erred by ignoring her work restrictions and her physical therapist's records. Specifically, Tedder argues that (1) Dr. Elvington's imposition of work restrictions on September 12, 2013, "never changed," (2) the FCE report indicated Tedder was unable to walk at a normal pace, and (3) her records from Lowe's Physical Therapy referenced her "difficulty with left lower extremity range of motion, stability[,] and ambulation." Tedder complains that the Appellate Panel's inappropriate focus on her credibility caused the panel members to ignore all of this evidence.
As to the work restrictions imposed by Dr. Elvington, we will not assume he intended to attribute these restrictions to Tedder's left knee only by the time this knee reached maximum medical improvement (MMI). He conducted his initial post-operative examination of Tedder's left knee on September 12, 2013, and noted that she was scheduled for physical therapy at Lowe's two times a week for four weeks. He imposed work restrictions of no lifting or carrying over 10 pounds, no prolonged standing or walking, no climbing, stooping, or crawling. He imposed the same...
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