Lettie Spencer v. NHC Parklane

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.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Lettie Spencer, Employee, Appellant,

v.

NHC Parklane, Employer, and Premier Group Insurance
Co., Inc., Carrier, Respondents.

Appellate Case No. 2015-002112

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2017-UP-443
Heard October 3, 2017 – Filed November 29, 2017

REVERSED AND REMANDED

Andrew Wade Creech and Garrett Brendan Johnson, both
of Elrod Pope Law Firm, of Rock Hill, for Appellant.

Clarke W. McCants, III, and Amy Patterson Shumpert,
both of Nance, McCants & Massey, of Aiken, for
Respondents.

PER CURIAM: Lettie Spencer, a former employee of NHC Parklane, appeals the
decision of the Appellate Panel of the Workers' Compensation Commission
(Appellate Panel) awarding Spencer 21% partial disability of the lower back
sustained from an admitted workplace injury on June 22, 2011. Spencer argues (1)
the Appellate Panel's decision is not supported by substantial evidence and (2) the
Appellate Panel erred in failing to address her wage loss claim pursuant to section
42-9-20 of the South Carolina Code (2015). We reverse and remand.

FACTS/PROCEDURAL HISTORY

On June 22, 2011, Spencer suffered an admitted lower back injury, affecting
her left leg, with a resulting psyche injury while working for NHC Parklane as a
Licensed Practical Nurse. Since her injuries, Spencer has been evaluated by a
plethora of physicians.

She was initially evaluated by Dr. Randall Drye, who recommended physical
therapy and pain management. For pain management, Spencer was treated by Dr.
Tony Owens. Dr. Owens diagnosed Spencer with chronic pain syndrome, sacroiliac
(SI joint) pain, and lower back pain in April 2012.

Spencer was then treated by Dr. William Lehman, an orthopedic surgeon. In
April 2013, Dr. Lehman diagnosed Spencer with chronic lower back pain and severe
depression with corresponding weight loss. At this time, Spencer weighed 103
pounds, 35 pounds less than her pre-injury weight. Dr. Lehman determined Spencer
had reached Maximum Medical Improvement (MMI) and assigned her a 7% whole
person impairment rating to her back, translating to a 9% regional lumbar spine
impairment. Dr. Lehman also noted Spencer would need ongoing medication for
pain management and severe depression.

In August 2013, at the behest of NHC, Spencer was referred to The Rehab
Center Incorporated in Charlotte, North Carolina. At the conclusion of the
comprehensive rehabilitation program, Dr. Kern Carlton released Spencer with "a
rating of 8% of her back" and sedentary work restrictions. Dr. Carlton's finding was
based off on functional capacity examination performed on October 2, 2013.

Dr. Sanjay Nandurkar, a pain management doctor, began treating Spencer in
early 2013. In December 2013, Dr. Nandurkar determined Spencer had reached
MMI and assigned a 13% whole person impairment resulting from her lower back
injury affecting her left leg. Dr. Nandurkar diagnosed Spencer with lumbar
radiculopathy, lumbar disc bulges, chronic pain syndrome, and lumbrosacral
spondylosis. Additionally, Dr. Nandurkar recommended less than sedentary work.
In January 2014, Spencer underwent a second functional capacity evaluation,
this time at the Columbia Rehabilitation Clinic. This evaluation concluded Spencer
was limited to less than sedentary work.

In February 2014, Spencer was examined by Leanna Hollenbeck, a
Vocational Rehabilitation Counselor. Hollenbeck concluded Spencer could not
work at all and "will remain permanently disabled for the rest of her life."
Hollenbeck believed Spencer had sustained a 70% loss of wage. However,
Hollenbeck opined Spencer had suffered a 100% loss based on Spencer's "less then
sedentary work restriction, combined with her age, chronic high pain level, emotion
and cognitive instability and her lack of transferable skills."

Dr. Patrick Mullen performed an Independent Medical Evaluation to assess
Spencer's psychiatric condition in February 2014. Dr. Mullen concluded that
Spencer's depression and pain "make her more than 50% or 60% disabled[—]but
even that may be a low estimate." However, Dr. Mullen further stated, "if you want
to measure it, she cannot work at all and she will remain permanently disabled for
the rest of her life."

Spencer filed a Form 50 seeking permanent and total disability pursuant to
section 42-9-10 (general disability) or section 42-9-30 (scheduled member
disability) of the South Carolina Code (2015). In the alternative, Spencer sought
partial wage loss under section 42-9-20 (partial disability) of the South Carolina
Code (2015). NHC filed a Form 51 denying permanent and total disability and
seeking a determination of compensation for partial disability pursuant to section
42-9-30.

At the hearing in September 2014, the single commissioner found Spencer
had "sustained permanent partial disability to the back in the amount of 21%" under
section 42-9-30. The single commissioner did not make any findings of fact
regarding Spencer's alternative wage loss claim. Spencer appealed to the Appellate
Panel, who affirmed the ruling of the single commissioner. This appeal followed.

ISSUES ON APPEAL

1. Is the Appellate Panel's finding that Spencer suffered only a 21% partial
disability to her lower back supported by substantial evidence?

2. Did the Appellate Panel err in failing to address Spencer's wage loss claim
under section 42-9-20?
STANDARD OF REVIEW

An appellate court may reverse or modify a decision by the Appellate Panel
if it "is affected by an error of law or is clearly erroneous in view of the reliable,
probative, and substantial evidence." Brunson v. Am. Koyo Bearings, 395 S.C. 450,
455, 718 S.E.2d 755, 758 (Ct. App. 2011); accord S.C. Code Ann. § 1-23-380(5)(d)–
(e) (Supp. 2017). Substantial evidence is "not a mere scintilla of evidence nor the
evidence viewed blindly from one side of the case, but is evidence [that], considering
the record as a whole, would allow reasonable minds to reach the conclusion that
[the Appellate Panel] reached or must have reached" to support its order. Lark v. Bi-
Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981) (quoting Law v. Richland
Cty. Sch. Dist. No. 1, 270 S.C. 492, 495–96, 243 S.E.2d 192, 193 (1978)).

The Appellate Panel "is the ultimate fact finder in Workers' Compensation
cases and is not bound by the single commissioner's findings of fact." Hall v. Desert
Aire, Inc., 376 S.C. 338, 348, 656 S.E.2d 753, 758 (Ct. App. 2007). When "there
are conflicts in the evidence over a factual issue, the findings of the Appellate Panel
are conclusive." Id. An appellate 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(5) (Supp. 2017). However, as to questions of law, workers'
compensation law is to be liberally construed in favor of coverage while restrictions
and exceptions are to be strictly construed. See James v. Anne's Inc., 390 S.C. 188,
198, 701 S.E.2d 730, 735 (2010). Additionally, an appellate court is free to decide
a workers' compensation case as a matter of law when the facts are not in dispute.
See Davaut v. Univ. of S.C., 418 S.C. 627, 632, 795 S.E.2d 678, 681 (2016)
("Because the facts are not in dispute, we are free to decide this [workers'
compensation] case as a matter of law.").

LAW/ANALYSIS

I. Finding of Partial Disability

Spencer argues substantial evidence does not support the Appellate Panel's
finding that she suffered a 21% impairment to her back and was not totally disabled.
We agree.

South Carolina allows an injured employee to receive disability compensation
under three methods: (1) total disability under section 42-9-10 of the South Carolina
Code (2015); (2) partial disability under section 42-9-20 of the South Carolina Code
(2015); and alternatively, (3) scheduled disability under section 42-9-30 of the South
Carolina Code (2015). Colonna v. Marlboro Park Hosp., 404 S.C. 537, 544, 745
S.E.2d 128, 132 (Ct. App. 2013). An employee with one scheduled injury is limited
to recovery under the scheduled member statute. Id. at 545, 745 S.E.2d at 133.

However, an employee "is not limited to scheduled benefits . . . if he or she
can show additional injuries beyond a lone scheduled injury." Id. This rule is based
on the common-sense notion "that, when two or more scheduled injuries [or a
scheduled and non-scheduled injury] occur together, the disabling effect may be far
greater than the arithmetical total of the schedule allowances added together." Id.
(alteration in original) (quoting Wigfall v. Tideland Utils., Inc., 354 S.C. 100, 106–
07, 580 S.E.2d 100, 103 (2003)). An award of compensation under the general
disability statutes, rather than the scheduled member statute, is appropriate when an
employee has suffered an injury to a scheduled member with a resulting mental
injury, such as depression.1 See Bass v. Kenco Grp., 366 S.C. 450, 462–64, 622
S.E.2d 577, 583–84 (Ct. App. 2005).

We find the Appellate Panel's award of compensation under the scheduled
member statute was an error of law. The Appellate Panel awarded disability
pursuant to the scheduled member statute despite NHC's admission, and the
Appellate Panel's finding, that Spencer had suffered "injuries to her lower back and
psyche." Pursuant to Colonna and Bass, an award under the general disability
statutes is proper when an employee suffers a physical injury with a resulting mental
injury. Because the undisputed facts show Spencer injured her lower back, affecting
her left leg, with resulting depression, we find the Appellate Panel's award of
compensation under the scheduled member statute was an error of law. See Davaut,
418 S.C. at 632, 795 S.E.2d at 681 (deciding a workers' compensation case as a
matter of law because the facts were not in dispute).

Additionally, we find the Appellate Panel's decision that Spencer is not totally
disabled is unsupported by substantial evidence because, examining the record as a
whole, including the overwhelming medical evidence, no reasonable mind could
have reached the conclusion that Spencer is anything but permanently and totally
disabled. See Lark, 276 S.C. at 135, 276 S.E.2d at 306 (holding "substantial

1
See 4 Lex K. Larson, Larson's Workers' Compensation § 56.03[1] (Matthew
Bender, Rev. Ed.) ("[W]hen there had been a physical accident or trauma, and
claimant's disability is increased or prolonged by traumatic neurosis . . . it is now
uniformly held that the full disability[,] including the effects of the neurosis[,] is
compensable.").
evidence" is evidence that "considering the record as a whole, would allow
reasonable minds to reach the conclusion that [the Appellate Panel] reached or must
have reached" to support its order (emphases added)).

"'[T]otal disability' does not require complete, abject helplessness. Rather, it
is an inability to perform services other than those that are so limited in quality,
dependability, or quantity that no reasonably stable market exists for them."
McCollum v. Singer Co., 300 S.C. 103, 107, 386 S.E.2d 471, 474 (Ct. App. 1989).
An employee's ability to perform limited tasks or earn nominal wages does not
prevent a finding of total disability. Stephenson v. Rice Servs., Inc., 323 S.C. 113,
118, 473 S.E.2d 699, 702 (1996) ("Employees who because of a work-related injury
can perform only limited tasks for which no reasonably stable market exists are
considered totally disabled notwithstanding their nominal earning capacity.");
McCollum, 300 S.C. at 107, 386 S.E.2d at 474 ("Evidence that [an employee] has
been able to earn occasional wages or perform certain kinds of gainful work does
not necessarily rule out a finding of total disability or require that it be reduced to
partial." (quoting Colvin v. E.I. Du Pont De Nemours Co., 227 S.C. 465, 474, 88
S.E.2d 581, 585 (1955)). Evidence showing an employee can drive, walk for short
durations, or shop does not discount that employee's disability; rather, it merely
shows the employee is not helpless. See McCollum, 300 S.C. at 107, 386 S.E.2d at
474 (finding an employee's "ability to drive a car for an hour, walk for ten minutes[,]
and go shopping" merely showed the employee was not helpless and did not dissuade
the court's view that there was substantial evidence supporting the Appellate Panel's
decision that the employee was permanently and totally disabled).

The Appellate Panel's finding that Spencer was not totally disabled was based
on video evidence of Spencer performing various tasks. The video depicts Spencer
driving by herself, shopping, running errands, mowing her grass on a riding
lawnmower, as well as sweeping the floor and bookkeeping/paying bills at her son's
now-defunct business. Based on this evidence, the Appellate Panel found Spencer
was "physically active to a significant degree" and had not shown total incapacity
for work. However, this evidence does not negate a finding of total disability and
only shows Spencer is not helpless. See McCollum, 300 S.C. at 107, 386 S.E.2d at
474. Admittedly, the Appellate Panel has discretion to weigh the evidence.
However, to allow the Appellate Panel to find certain evidence does not negate a
finding of total disability in one circumstance and find that same evidence does
negate a finding of total disability in another circumstance, would be to allow the
Appellate Panel to arbitrarily exercise its discretion. See § 1-23-380(5)(f) ("The
court may reverse or modify the decision [of the Appellate Panel] if substantial rights
of the appellant have been prejudiced because the administrative findings,
inferences, conclusions, or decisions are . . . arbitrary or capricious . . . or [a] clearly
unwarranted exercise of discretion.").

Furthermore, the Appellate Panel reached its decision by discrediting the
opinions of Dr. Mullen and Hollenbeck, reasoning the opinions should be given less
evidentiary weight due to the inaccurate information Spencer provided. Dr. Mullen's
report contained an inaccurate marital status for Spencer and stated Spencer had
experienced only minor medical problems and had never received psychiatric care.
However, NHC introduced Spencer's medical records pre-dating her workplace
injury indicating Spencer had previously suffered from depression and chronic pain.
Additionally, Spencer reported to Hollenbeck she is in agony by 5:00 p.m. after little
physical activity and uses a cane when she leaves her home. However, NHC
introduced video surveillance of Spencer not using a cane in one instance while
outside of her house.

The Appellate Panel's reliance on Spencer withholding her pre-existing
conditions from Dr. Mullen to discredit his assessment of Spencer's psychiatric
condition ignores a cornerstone of workers' compensation law—an employee is
entitled to compensation as long as there is a greater disability than otherwise would
have existed simply due to the combined effects of an injury and pre-existing
condition. See Bartley v. Allendale Cty. Sch. Dist., 392 S.C. 300, 309, 709 S.E.2d
619, 623 (2011) ("There is no requirement that the pre-existing condition aggravated
the injury, or that the injury aggravated the pre-existing condition so long as there is
a greater disability [than otherwise would have existed] simply from the 'combined
effects' of the injury and the pre-existing condition." (quoting Ellison v. Frigidaire
Home Prods., 371 S.C. 159, 164, 638 S.E.2d 664, 666 (2006))). Considering
Spencer's uncontroverted ability to perform her job uninhibited with her pre-existing
impairments prior to the workplace injury, the fact that Spencer provided certain
inaccurate information does not wholly deprive Dr. Mullen's opinion of probative
value.

II. Wage Loss Claim

Spencer argues the Appellate Panel erred in failing to address her wage loss
claim. However, in light of this court's disposition on the previous issue, it is not
necessary to address Spencer's remaining assignment of error. See Futch v.
McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598
(1999) ("[An] appellate court need not address remaining issues when [resolution]
of prior issue is dispositive.").
We reverse and remand for a determination of Spencer's compensation
consistent with this opinion.

REVERSED AND REMANDED.

SHORT, KONDUROS, and GEATHERS, JJ., concur.