Turner v. Saiia Constr.

• Decision Date: 07 December 2016
• Docket Number: Opinion No. 5458,Appellate Case No. 2014-002416
• Citation: 419 S.C. 98,796 S.E.2d 150
• Court: South Carolina Court of Appeals
• Parties: William Lee TURNER, Employee, Appellant, v. SAIIA CONSTRUCTION, Employer, and Old Republic General Insurance Corporation c/o Gallagher Bassett Services, Inc., Carrier, Respondents.

419 S.C. 98

796 S.E.2d 150

William Lee TURNER, Employee, Appellant,

v.SAIIA CONSTRUCTION, Employer, and Old Republic General Insurance Corporation c/o Gallagher Bassett Services, Inc., Carrier, Respondents.

Appellate Case No. 2014-002416

Opinion No. 5458

Court of Appeals of South Carolina.

Heard June 9, 2016

Filed December 7, 2016

Rehearing Denied February 21, 2017

Preston F. McDaniel, of McDaniel Law Firm, of Columbia, for Appellant.

Jason Wendell Lockhart and Helen Faith Hiser, both of McAngus Goudelock & Courie, LLC, of Mount Pleasant, for Respondents.

LOCKEMY, C.J.:

William Lee Turner appeals the Appellate Panel of the South Carolina Workers' Compensation Commission's (the Commission) decision and order denying him benefits under the Workers' Compensation Act (the Act). Turner argues the Commission erred in: (1) failing to apply the presumption that his injury arose out of and in the course of employment; (2) affirming the single commissioner's findings of fact; (3) finding he did not establish a cause for his accidental injury; and (4) allowing Respondents¹ to draft the Commission's order. We affirm.

FACTS

Turner began working for SAIIA Construction Company as a heavy equipment operator in 2007. Turner's alleged accident occurred on April 19, 2012, when his co-workers found him lying on his back next to his dump truck. Turner testified he had no memory of the accident or how it happened. Paul Barnette and David Bolden, Turner's co-workers, testified they never saw Turner in or on the truck prior to his fall. However, Turner testified both of his co-workers saw him "up in the truck" at some point before he fell.

Barnette testified that at the end of the work day Turner washed his truck, which was typically done with a high pressure washer. Turner then went into a building adjacent to the wash area to do some paperwork and retrieve his backpack and Barnette's cooler. After Turner left the building, Bolden exited a trailer called "the hut" and walked over to Barnette. They were talking for some time when they noticed Turner lying on his back next to the cab of his truck. Barnette and Bolden found Turner lying on his back on the ground with his arms outstretched and his palms up. Although Barnette could not say for certain how long Turner was lying on the ground before they saw him, he estimated it would not have been more than three or four minutes. Barnette's cooler and Turner's backpack were found lying on the seat of the truck and the truck's door was still open. Bolden testified, "I never saw [Turner] on the steps of the truck," but only "standing on the ground, placing the [cooler] on the truck, I did not see him on the steps."

Turner was taken to Palmetto Health Richland, where he was provided emergency treatment and admitted. Turner was diagnosed with a small subdural hemorrhage, intraparenchymal contusion left lobe, and an endplate compression deformity of T3 and T4. His discharge diagnosis included a small subdural hemorrhage and T3 to T4 endplate fractures; however, CT scans showed Turner did not fracture his skull.

At a follow-up appointment, Dr. James Selph noted Turner, "has a history of back pain and in fact was taking Ultram prior to his fall." All of Turner's remaining follow-up treatment was with Dr. Peterson, his family doctor.

On March 27, 2012, a few weeks before his accident, Turner sought medical care for his lower back, which he injured lifting logs while working on a house he was building. He was prescribed Ultram 50MG two times daily and Flexeril 5MG two times daily. On April 16, 2012, three days before his accident, Turner sought medical care again complaining of both lower and upper back pain. Turner was then prescribed Ultram 100MG two times daily and Neurontin 300MG three times daily. On April 17, 2012, two days before his accident, Turner was seen at Palmetto Health Baptist Emergency Department with complaints of vomiting, diarrhea, and suspicion of dehydration. James Speegle, Turner's supervisor at the time of the injury, testified Turner was complaining about not feeling well a couple days before his fall. Speegle recommended Turner take a few days off.

Turner filed a Form 50 on November 25, 2013, alleging he suffered a compensable injury to his back, head, and thoracic spine. Respondents filed a Form 51, denying Turner's injuries were the result of an accident that arose out of and in the course and scope of employment. The parties were heard by the single commissioner on February 4, 2014. In an April 14, 2014 order, the single commissioner found "[Turner] failed to carry his burden of proving that he sustained a compensable injury by accident within the course and scope of his employment with the [Respondents] on April 19, 2012." The single commissioner also found Turner's alleged accident was unwitnessed and that he did not remember anything that happened on April 19, 2012, or the day after, and that co-workers found Turner lying on his back next to his truck. The single commissioner further found Turner was impeached at least twice. The single commissioner concluded Turner failed to meet his burden of proving a compensable injury and denied any benefits or medical treatment associated with his alleged accident.

Turner filed a Form 30 raising eleven points of appeal. Following oral arguments, the Commission issued its decision on October 10, 2014, affirming the single commissioner's order in its entirety. In addition, the Commission set forth its standard of review, and responded to Turner's reliance on prior case law. Turner relied on Packer v. Corbett Canning Co. , 238 S.C. 431, 120 S.E.2d 398 (1961) and Owens v. Ocean Forest Club , 196 S.C. 97, 12 S.E.2d 839 (1941), to establish he suffered from a compensable work related accident due to the unexplained death or injury presumption. The Commission found that because Turner was found on the ground and could not remember or testify as to how he fell, and there were no witnesses to the accident, the presumption could not be applied to establish the accident arose out of his employment. The Commission held Turner failed to meet his burden of proving a compensable injury by accident within the course and scope of his employment and denied him any benefits under the Act. This appeal followed.

STANDARD OF REVIEW

On appeal from an appellate panel of the Workers' Compensation Commission, this court can reverse or modify the decision if it is affected by an error of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record. Pierre v. Seaside Farms, Inc. , 386 S.C. 534, 540, 689 S.E.2d 615, 618 (2010). "The claimant has the burden of proving facts that will bring the injury within the workers' compensation law, and such award must not be based on surmise, conjecture or speculation." Crisp v. SouthCo. , 401 S.C. 627, 641, 738 S.E.2d 835, 842 (2013). In a workers' compensation case, the appellate panel is the ultimate fact-finder.

Pratt v. Morris Roofing, Inc. , 357 S.C. 619, 622, 594 S.E.2d 272, 273 (2004). However, when there are no disputed facts, the question of whether an accident is compensable is a question of law. Grant v. Grant Textiles , 372 S.C. 196, 201, 641 S.E.2d 869, 872 (2007). "[W]orkers' compensation law is to be liberally construed in favor of coverage in order to serve the beneficent purpose of the [Workers' Compensation] Act; only exceptions and restrictions on coverage are to be strictly construed." James v. Anne's Inc. , 390 S.C. 188, 198, 701 S.E.2d 730, 735 (2010).

LAW/ANALYSIS

I. Presumption

Turner argues the Commission erred as a matter of law by failing to apply the unexplained death presumption. We disagree.

For an accidental injury to be compensable, it must "aris[e] out of and in the course of employment." S.C. Code Ann. § 42-1-160(A) (2015). An injury arises out of employment if it is proximately caused by the employment. Douglas v. Spartan Mills, Startex Div. , 245 S.C. 265, 269, 140 S.E.2d 173, 175 (1965).

The unexplained death presumption is

a natural presumption, or a presumption of fact, that one charged with the performance of a duty and injured while performing such duty, or found injured where his duty required him to be, is injured in the course of, and as a consequence of, his employment.

Jennings v. Chambers Dev. Co. , 335 S.C. 249, 255–56, 516 S.E.2d 453, 456–57 (Ct. App. 1999) (quoting Packer , 238 S.C. at 436, 120 S.E.2d at 400 ). "The presumption is applied simply to establish that the injury occurred in the course of and as a consequence of employment. The presumption cannot be applied to establish the incident of accident." Id.

We disagree with Turner's assertion that the unexplained death presumption should apply in cases where the employee survives the injury but has no memory of the events leading up to the injury. Turner failed to cite any South Carolina case law extending the presumption, heretofore applied only in death cases, to cases where the employee survives but has no memory of the injury. In addition, we note other states, including North Carolina, have limited the presumption to cases where the employee is deceased and have refused to apply it where the employee is alive but has no memory of the injury. See Janney v. J.W. Jones Lumber Co. , 145 N.C.App. 402, 550 S.E.2d 543, 546 (2001) (declining to adopt the unexplained death presumption in a workers' compensation case not resulting in death). "Because South Carolina workers' compensation law is fashioned after North Carolina's statute, our courts often rely on North Carolina precedent for guidance in interpreting the South Carolina Workers' Compensation Act." Hernandez – Zuniga v. Tickle , 374 S.C. 235, 248–49, 647 S.E.2d 691, 698 (Ct. App. 2007).

We particularly find persuasive the North Carolina Court of Appeals' reasoning in declining to extend the presumption beyond those cases which result in death. With facts very similar to the instant case, a lumber grader in Janney was waiting on a...