Thompson ex rel. Harvey v. Cisson Const.

Citation659 S.E.2d 171,377 S.C. 137
Decision Date01 February 2008
Docket NumberNo. 4339.,4339.
CourtCourt of Appeals of South Carolina
PartiesAnn THOMPSON, Claimant, for John Michael HARVEY, Deceased, Employee, Appellant v. CISSON CONSTRUCTION CO., Employer and Ohio Casualty Co., Carrier, Respondents.

Linda B. McKenzie, of Greenville, for Appellant.

Weston Adams, III, George D. Gallagher, and John G. Coggiola, of Columbia, for Respondent.


In this workers' compensation case, Ann Thompson (Thompson), mother of deceased employee John Michael Harvey (Harvey), appeals the circuit court's decision reversing the Appellate Panel's award of death benefits pursuant to section 42-9-290 of the South Carolina Code of Laws. We affirm.


Harvey sustained a work-related injury to his right knee and back on January 12, 2000. As a result of his initial injuries, Harvey later claimed an aggravation of a pre-existing psychiatric condition. His employer, Cisson Construction, and its carrier, Ohio Casualty (collectively Cisson) admitted the right knee and back injuries and provided temporary disability and medical benefits. Cisson denied aggravation of the pre-existing psychiatric condition.

A plethora of emotional problems, including substance abuse, depression, anxiety, suicide attempts, and multiple hospitalizations characterized Harvey's medical history. Previous medical records indicated a diagnosis of bipolar affective disorder. Yet, for approximately four or five years prior to his January 12, 2000 work accident, Harvey's emotional status was stable; he had not taken any medication for depression and had not attempted suicide during that period. In his own words, Harvey averred he "was dealing with it pretty good."

Notwithstanding numerous evaluations and medical treatments for his compensable injuries, Harvey continued to experience significant pain. Medications, including Oxycontin, were prescribed. Harvey's injuries, combined with the medications, virtually immobilized him. Other than taking care of his personal hygiene and occasionally preparing a meal for himself, he was able to do very little.

Harvey's treating physician, Dr. David Shallcross, noted that "despite being seen by many physicians, we have not found anything seriously wrong with this patient to explain his pain." Medical examination revealed no signs of neurological dysfunction, and Harvey was "clear to ambulate without any restrictions." Dr. Shallcross released Harvey at maximum medical improvement with a 5% whole person impairment rating and recommended treatment for his pre-existing emotional condition, regardless of his physical status.

Harvey began psychiatric treatment with Dr. Mario Galvarino in April of 2001. Dr. Galvarino summarized Harvey's mental state in his initial evaluation: "This individual is sad, apprehensive and does nothing at home. He sleeps. He has difficulty. He is very angry, apprehensive, irritable, snappy. Concentration and memory are poor. He feels hopeless, helpless, useless and very guilty. He feels good-for-nothing and wants to die, but he is not actively suicidal." Dr. Galvarino opined, "[T]he patient's depression and manic depression have considerably and significantly worsened since his injury." In May of 2001, Dr. Galvarino advised Harvey's attorney that the injuries he sustained in the "on-the-job accident with resulting chronic pain and depression have rendered him permanently and totally disabled."

On March 4, 2002, Thompson, Harvey's mother, found him dead from a drug overdose. Pathologist Brett Woodard reported, "[T]he cause of death was Oxycontin over dosage. Based on the number of residual pills and pill debris within the stomach and the previous psychiatric history of the deceased, the manner of death is suicide."

Harvey had moved in to live with Thompson after breaking up with his girlfriend approximately nine months prior to his death. Thompson sought death benefits under section 42-9-290 of the South Carolina Code of Laws, contending Harvey's death by suicide was the result of emotional trauma or depression secondary to his compensable work accident.

The single commissioner found, inter alia,: (1) Harvey's work related injury aggravated his pre-existing psychiatric condition; (2) the aggravation of the pre-existing psychiatric condition was compensable; (3) Harvey reached maximum medical improvement on May 25, 2001, with an impairment rating of 25% loss of use to his back and 20% loss of use to his right leg; (4) Harvey's back and right knee injuries, when combined with the severe aggravation of his pre-existing emotional problems, rendered him totally and permanently disabled, pursuant to section 42-9-10; (5) Harvey's death was the result of suicide; and (6) the suicide resulted from and was directly linked to Harvey's severe emotional condition brought on by his compensable injuries. The single commissioner awarded Thompson death benefits pursuant to sections 42-9-140 and 42-9-290, including $2500 for burial expenses. The Appellate Panel affirmed the single commissioner, with the exception of the award for burial expenses.

On appeal to the Court of Common Pleas the circuit judge reversed the Appellate Panel's decision as a matter of law, holding: "Compensation for Claimant's suicide is specifically barred by the plain language of § 42-9-60 because the event for which Thompson seeks compensation—Claimant's death by suicide—was occasioned by Claimant's willful intent to kill himself." As an alternate ground for reversal, the circuit judge ruled: "As a matter of law, Claimant's intent to kill himself was not negated by a spontaneous or uncontrollable impulse, or other mental derangement depriving him of normal judgment negating his willful intention;" and "Claimant's suicide two years after his work related accident is not a `natural consequence' flowing from such accident."


1. Does section 42-9-60 of the South Carolina Code of Laws bar death benefits to the deceased employee's mother when the cause of death was suicide?

2. Was the deceased employee's suicide the result of spontaneous, impulsive, or instinctive conduct, without deliberate or formed intention, or without conscious volition to produce death, thus negating his willful intent to kill himself?

3. Was the employee's suicide a "natural consequence" flowing from his original compensable accident?


"The South Carolina Administrative Procedures Act governs judicial review of a decision of the workers' compensation commission." Lark v. Bi-Lo, Inc., 276 S.C. 130, 134, 276 S.E.2d 304, 306 (1981); Bass v. Isochem, 365 S.C. 454, 467, 617 S.E.2d 369, 376 (Ct.App.2005) cert. dismissed as improvidently granted Aug. 2007; Hargrove v. Titan Textile Co., 360 S.C. 276, 288, 599 S.E.2d 604, 610 (Ct.App.2004). Pursuant to the APA, an appellate court's review is limited to deciding whether the Appellate Panel's decision is unsupported by substantial evidence or is controlled by some error of law. Grant v. Grant Textiles, 372 S.C. 196, 200, 641 S.E.2d 869, 871 (2007); S.C.Code Ann. § 1-23-380(A)(5)(Supp.2006).

I. Substantial Evidence Standard

The judicial review of the Appellate Panel's factual findings is governed by the substantial evidence standard. Gadson v. Mikasa Corp., 368 S.C. 214, 221, 628 S.E.2d 262, 266 (Ct.App.2006); Frame v. Resort Servs., Inc., 357 S.C. 520, 527, 593 S.E.2d 491, 494 (Ct.App.2004); Corbin v. Kohler Co., 351 S.C. 613, 617, 571 S.E.2d 92, 94-95 (Ct. App.2002); Lockridge v. Santens of America, Inc., 344 S.C. 511, 515, 544 S.E.2d 842, 844 (Ct.App.2001). The Appellate Panel's decision must be affirmed if supported by substantial evidence in the record. Shuler v. Gregory Elec, 366 S.C. 435, 440, 622 S.E.2d 569, 571 (Ct.App.2005) (citing Sharpe v. Case Produce, Inc., 336 S.C. 154, 160, 519 S.E.2d 102, 105 (1999)). A reviewing court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. S.C.Code Ann. § 1-23-380(A)(5)(d)(e)(Supp.2006); see also Hall v. United Rentals, Inc., 371 S.C. 69, 77, 636 S.E.2d 876, 881 (Ct.App.2006). However, a reviewing court may reverse or modify a decision of the Appellate Panel if the findings, inferences, conclusions, or decisions of the 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)(5)(e)(Supp.2006); Bass v. Kenco Group, 366 S.C. 450, 457, 622 S.E.2d 577, 580 (Ct.App.2005); Bursey v. S.C. Dep't of Health & Envtl. Control, 360 S.C. 135, 141, 600 S.E.2d 80, 84 (Ct.App.2004) aff'd 369 S.C. 176, 631 S.E.2d 899 (2006).

It is not within the appellate court's province to reverse the Appellate Panel's factual findings if they are supported by substantial evidence. Etheredge v. Monsanto Co., 349 S.C. 451, 454, 562 S.E.2d 679, 681 (Ct.App.2002) (citing Hoxit v. Michelin Tire Corp., 304 S.C. 461, 405 S.E.2d 407 (1991)); Muir v. C.R. Bard, Inc., 336 S.C. 266, 282, 519 S.E.2d 583, 591 (Ct.App.1999). Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion the administrative agency reached in order to justify its action. Pratt v. Morris Roofing, Inc., 357 S.C. 619, 622, 594 S.E.2d 272, 274 (2004); Jones v. Georgia-Pacific Corp., 355 S.C. 413, 417, 586 S.E.2d 111, 113 (2003); Brown v. Greenwood Mills, Inc., 366 S.C. 379, 392, 622 S.E.2d 546, 554 (Ct.App. 2005) cert. denied Jan. 2007; Broughton v. South of the Border, 336 S.C. 488, 495, 520 S.E.2d 634, 637 (Ct.App.1999). The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. Sharpe, 336 S.C. at 160, 519 S.E.2d at 105; Smith v. NCCI Inc., 369...

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