Thompson v. Bluffton Twp. Fire Dist.
| Decision Date | 07 December 2022 |
| Docket Number | 2022-UP-437,Appellate Case 2019-000597 |
| Parties | Nicholas B. Thompson, Employee, Appellant, v. Bluffton Township Fire District, Employer, and State Accident Fund, Carrier, Respondents. |
| Court | South Carolina Court of Appeals |
FTHIS 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.
Heard September 13, 2022
Appeal From The Workers' Compensation Commission
David Holt Berry, of Law Ofc. of David H. Berry, PC of Hilton Head Island, for Appellant.
David Alan Westerlund, Jr., of Willson Jones Carter & Baxley P.A., of North Charleston, for Respondent.
In this worker's compensation case, the single commissioner and the appellate panel denied Nicholas Thompson, a thirty-one-year-old firefighter, compensation for his back injury, which he claimed was the result of repetitive trauma. Both the single commissioner and the appellate panel found Thompson did not present sufficient evidence of a repetitive trauma injury under section 42-1-172 of the South Carolina Code (2015). Alternatively, both the single commissioner and the appellate panel found that, even if Thompson's activities as a firefighter were repetitive and caused his injury, Thompson failed to provide his employer, the Bluffton Township Fire District (the Township) with timely notice of a repetitive trauma injury and he was therefore barred from compensation. We reverse and remand to the commission for a calculation of benefits.
Thompson began working as a full-time firefighter at the Township in 2013. In January 2017, Thompson reported to his Battalion Chief that his back pain was affecting his ability to do his job. Thompson was directed to discuss medical leave options with the Township's personnel officer, Captain Reid, and to see Dr. Cramer, a pain management physician. Thompson went to see Dr. Cramer on February 10, 2017 and underwent an MRI which revealed he had a bulging disc, disc degeneration, and nerve impingement in his lower back. Dr. Cramer prescribed a course of epidural steroid injections for pain management and referred Thompson to a spine surgeon, Dr. Lindley at the Neurological Institute of Savannah. Dr. Cramer also wrote Thompson a work note indicating he was restricted to "light/sedentary duty only." The next day, Thompson gave his Chief the images from his MRI scan, and two days later, he was "pulled off the line" due to the severity of his back injury. On February 22, 2017, Thompson informed Captain Reid that he wished to file a worker's compensation claim.
On March 30, 2017, Thompson filed a Form 50, claiming he injured his back in June of 2016 when picking up a four-hundred-pound woman. On June 30, 2017, Thompson filed an amended Form 50 claiming both injury by accident and a repetitive trauma injury, stating: "Claimant was injured lifting an approximately 400 lb. patient; twisting/lifting during Belfair Fire; Cutting/moving trees after Hurricane Matthew." The Township denied the claim, and a hearing was held in front of the single commissioner.
At the hearing, Thompson described his work as a firefighter, his back pain and treatment, and the three events listed in his Form 50. According to Thompson's testimony and notes from his healthcare providers, Thompson began experiencing back pain in 2014, and, over the next two years, went to see chiropractors, his family medical physician, and a specialist at Low Country Spine & Sport to discuss his pain. His symptoms were consistently described as low back pain with radiculopathy down his right leg. Thompson underwent x-rays, was advised to wear a back brace, prescribed a regimen of stretching and a medication called Skelarin, and was diagnosed with a lumbar ligament sprain. During these years, Thompson did not take any time off work due to back pain and testified his pain
In 2016, Thompson remembered three specific instances where his back pain was "significant" at work. In the first instance, during the late spring of 2016, Thompson responded to a "lift and assist call" to help a four-hundred-pound woman rise from the floor of her home. A month or two later-on July 9, 2016-Thompson was at the scene of a large house fire (the Belfair Fire). During the course of the night, he held and maneuvered a high-pressured hose and replaced air cylinders on the other firefighter's packs-which involved lifting a 45-pound cylinder, filling it, and returning it to each firefighter. Finally, while doing cleanup in the aftermath of Hurricane Matthew in October 2016, Thompson and his colleagues used chainsaws to cut downed trees into manageable sections and then removed the segments from the road.
Thompson also described his regular duties as a firefighter. Thompson testified he worked two or three twenty-four hour shifts per week with two days off between shifts. At the start of each shift, Thompson was required to complete a safety-check of equipment, which included lifting ladders weighing seventy-five pounds; reaching into the back of the truck to pull out a one-hundred-pound power unit; putting the power unit on the ground, starting it, and putting it back in the truck; and doing the same to a hydraulic hook that weighed ninety pounds. Also, during his shifts, Thompson was required to exercise at the fire station, which had a treadmill, weights, and other professional gym equipment, and he typically worked out for an hour every shift. Other routine duties included testing fire hydrants and completing training hours, which involved "dragging a hose full of hundreds of pounds of highly pressurized water, putting your gear on that weighs 100 pounds and crawling and climbing and twisting, and using all the heavy equipment . . . the hydraulic tools, ladders, everything."
During testimony at Thompson's worker's compensation hearing, Captain Reid admitted the job of a firefighter is When Captain Reid was asked whether firefighters were required to use "hose-lines, nozzles, pumps, hydrants, extinguishers, ladders, hand tools, extriction tools, air masks," Captain Reid stated, "Yes ma'am those would be things that we would be expected to at least touch or train with at least on a weekly basis." When asked whether the job of a firefighter requires "frequent lifting, carrying, ability to bend, strain, stretch and . . . push, pull, twist, carry and walk with weight,"[1] Captain Reid answered, "Yes ma'am." Captain Reid testified that, in his opinion, these activities would be done on a "frequent basis."
Finally, Thompson testified that, as a result of the delay in receiving treatment for his back injury, his condition had deteriorated. In September 2017 (a month before his hearing in front of the single commissioner), Thompson woke from sleep with his legs shaking violently and began vomiting from "excruciating pain." He went to the emergency room, where he was referred to see a neurosurgeon as soon as possible. Thompson returned to see Dr. Lindley on September 19, 2017. By that time, Thompson was unable to use his bowels without medical intervention, and Dr. Lindley recommended Thompson undergo to a "level two disc replacement surgery" due to Thompson's worsening condition. When asked why Thompson did not formally file a report after the incidents involving the heavy woman, the Belfair Fire, or Hurricane Matthew, Thompson stated,
In support of his claim of repetitive trauma injury, Thompson submitted a statement from Dr. Lindley into evidence. In relevant part, the statement stated:
It is my opinion, based upon a reasonable degree of medical certainty, that there is a direct causal relationship between Mr. Thompson's repetitive day-to-day work duties as a firefighter and the [three significant pain events] with the Bluffton Township Fire Department and his lower back injury with radiation into his legs. Furthermore, it is my opinion, based upon a reasonable degree of medical certainty, that Mr. Thompson's work duties most probably caused and/or aggravated his lower back injury with radiation into his legs. It is my opinion, based upon a reasonable degree of medical certainty, Mr. Thompson has received and continues to need treatment, including L4-5 disc replacement surgery, that will tend to lessen his period of disability.
Before ruling on the compensability of Thompson's injury, the single commissioner held the record open to allow for the deposition of Dr. Lindley. During the deposition, Dr. Lindley re-affirmed his opinion from his written statement multiple times. However, he did equivocate in his opinion when confronted by the Township with the fact that he had not independently corroborated or investigated Thompson's patient history-but instead had relied on Thompson's description of his work activities and onset of pain in forming his medical opinion.
The single commissioner denied Thompson's claim. Significantly, the single commissioner found Thompson failed to timely report injuries by accident resulting from any of the three incidents in his Form 50 (the lifting of the four-hundred-pound woman, the Belfair Fire, or Hurricane Matthew), and therefore, he was barred from compensation under section 42-15-20(A) of...
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