Billy Herndon v. G & G Logging

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

Billy Wayne Herndon, Employee, Claimant, Appellant-
Respondent,

v.

G & G Logging, Inc., Employer, and Palmetto Timber
S.I. Fund c/o Walker, Hunter & Associates, Inc., Carrier,
Respondents-Appellants.

Appellate Case No. 2017-000692

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2019-UP-305
Heard May 16, 2019 – Filed August 21, 2019

REVERSED AND REMANDED IN PART, AFFIRMED IN PART, AND
AFFIRMED AS MODIFIED IN PART.

Andrea Culler Roche, of Mickle & Bass, LLC, of
Columbia, for Appellant-Respondent.

Brian Gallagher O'Keefe, Helen F. Hiser, and Jonathan
Gregory Lane, all of McAngus Goudelock & Courie,
LLC, of Mount Pleasant, for Respondents-Appellants.
PER CURIAM: Billy Herndon (Claimant) appeals the order of the South Carolina
Workers' Compensation Full Commission, arguing the Full Commission erred in
finding (1) exceptional reasons existed to deviate from the standard wage calculation
and (2) his former employer, G&G Logging, Inc., and its workers' compensation
carrier, Palmetto Timber Self Insurance Fund (collectively Employers), were
entitled to a credit for overpayment of temporary total disability (TTD) benefits.
Employers also appeal the order of the Full Commission, arguing the Full
Commission erred in (1) assigning greater weight to Claimant's medical expert's
findings than the findings of their medical expert for arbitrary reasons, (2) awarding
Claimant total and permanent disability under section 42-9-10 of the South Carolina
Code (2015)1 because Claimant failed to prove he injured a second body part, and
(3) finding Claimant proved he was entitled to total and permanent disability because
the award was based on a flawed hypothetical and the erroneous premise that any
person who cannot work an eight-hour day and forty-hour week is totally and
permanently disabled. We reverse and remand in part, affirm in part, and affirm as
modified in part.

I. FACTS
Claimant worked as a log truck driver for Bottle Logging for twenty years. After
retiring in 2012, Claimant went back to work part-time for Bottle Logging. In early
2014, Claimant went to work for G&G Logging, and on May 12, 2014, Claimant
was involved in a work-related accident while driving a logging truck for G&G
Logging.

Following the accident, Claimant sought treatment from his family doctor, Dr. Bryan
Tompkins. Dr. Tompkins noted Claimant presented with left upper arm pain and
elbow pain. Claimant returned to Dr. Tompkins for a follow up for his "left neck/left
shoulder pain," and Dr. Tompkins noted Claimant continued to have issues with his
left neck and shoulder, including swelling, numbness, and tingling. Dr. Tompkins
recommended an MRI of Claimant's cervical spine.

About a month later, Claimant went to the emergency room, and the doctors ordered
an MRI of Claimant's neck due to Claimant's complaint of "neck pain with tingling
down the arm." The MRI showed "significant disc degeneration at multiple levels."
Claimant then returned to Dr. Tompkins, who noted the MRI showed "that
[Claimant's cervical] spine issues may be the source of his pain" and that he had

1
Section 42-9-10(B) provides, "The loss of both hands, arms, shoulders, feet, legs,
hips, or vision in both eyes, or any two thereof, constitutes total and permanent
disability . . . ."
"multiple disk osteophyte complexes from C3/C4[2] through C6/C7, left greater than
right." Claimant saw Dr. Tompkins several more times for his left neck and left
upper extremity (shoulder, arm, and hand) pain, and Dr. Tompkins noted Claimant
continued to have pain and experienced weakness in his left upper extremity. Dr.
Tompkins diagnosed Claimant with neck pain and left upper extremity
radiculopathy.3

Claimant also saw Dr. Artur Pacult of Neurosurgery and Spine Specialists of
Charleston; Dr. Pacult diagnosed Claimant with "[c]ervical radiculopathy at C7,"
and he recommended surgery. Claimant underwent surgery on his C6-7 vertebrae,
and he returned to Dr. Pacult for a post-operation check-up. Dr. Pacult noted
Claimant's pain and numbness had "markedly improved." Dr. Pacult also noted he
believed Claimant would be able to return to work in a few weeks. On April 27,
2015, Dr. Pacult stated Claimant had reached maximum medical improvement
(MMI). Dr. Pacult indicated Claimant still stated he could not return to work due to
persistent pain but noted there were "[n]o objective findings" of Claimant's pain. Dr.
Pacult referred Claimant to an impairment rating specialist.

Employers deposed Dr. Pacult. Dr. Pacult testified following surgery, Claimant's
pain and the numbness in his left arm and hand improved. More specifically, he
testified Claimant had a normal neurological examination, meaning while he may
have some lingering pain, he did not have paralysis, numbness, or weakness in his
left arm. He explained Claimant's claims of lingering pain were "subjective," and
he believed Claimant could have returned to work in a few weeks' time. Dr. Pacult
also testified Claimant "did not have an injury to his left arm, no, to the extremity
itself, no," but he explained based on Claimant's pain description, he believed or
assumed Claimant had radiculopathy or pain symptoms in his left arm. On
cross-examination, Claimant's attorney asked Dr. Pacult:

2
The cervical spine refers to the neck, and it is made of seven vertebrae, which are
numbered C1 to C7. Anatomy of the Spine, Mayfield Brain and Spine,
https://mayfieldclinic.com/pe-anatspine.htm (last visited April 18, 2019).
3
"Cervical radiculopathy is the clinical description of when a nerve root in the
cervical spine becomes inflamed or damaged, resulting in a change in neurological
function. Neurological deficits, such as numbness, altered reflexes, or weakness,
may radiate anywhere from the neck into the shoulder, arm, hand, or fingers." What
is Cervical Radiculopathy?, SPINE-health, https://www.spine-
health.com/conditions/neck-pain/what-cervical-radiculopathy (last visited April 18,
2019).
if there's a greater risk of further injury to [Claimant's]
back by going back to work in the logging [business] . . .
if he came back in today and said, you know, "Going out
in the logging woods, I bounce around all the time. I don’t
want to do further damage to my back," would you
recommend to him, "Well, you need to go back to work"
or "You need to go back to work as a log truck driver."

Dr. Pacult replied he would not. However, he also stated if he was asked to say "in
a reasonable medical degree of certainty," driving a "log truck over a rough road"
would cause further injuries to someone with Claimant's injuries, he "would say no."

On June 11, 2015, Claimant went to Dr. James Gee in Sumter for an impairment
rating. Dr. Gee noted Claimant had been diagnosed with radiculopathy and his
cervical spine was injured. After confirming Claimant reached MMI on April 27,
2015, Dr. Gee assigned Claimant a nine percent medical impairment rating to the
whole person, and he opined Claimant could return to work with restrictions on
heavy work and stairs and stated Claimant would not need any future medical care
for his injury. Although Dr. Gee noted Claimant's pain had improved, he did state
Claimant still experiences an "aching pain" in his cervical spine with some of the
pain spreading to the back of his head and his left shoulder muscles.

On June 30, 2015, Claimant went to see Dr. Donald Johnson from Southeastern
Spine Institute in Mount Pleasant to obtain a second impairment rating. Dr. Johnson
noted Claimant "complain[ed] of neck pain with radiating pain, parestesias and
numbness down the left arm to the left hand," and even after surgery, he "continues
to have symptoms more neck than arm pain." Dr. Johnson found Claimant had a
limited range of motion; numbness in a C5-6 distribution; and symptoms in his index
finger, forefinger, and along the muscle in his left forearm. Dr. Johnson
recommended Claimant update his MRI prior to closing the case, and Dr. Johnson
believed Claimant should continue seeing a doctor for possible further treatment.
Dr. Johnson assigned Claimant a twenty-six percent impairment rating to the whole
person, noting Claimant had decreased use of his left arm due to "radiculopathy with
residual numbness and weakness of the left arm and hand." Dr. Johnson also stated
if Claimant returned to work as a log truck driver, he believed, "it is inevitable that
[Claimant] will injure a disc above his cervical fusion. Work restrictions of avoiding
heavy lifting and strain are impossible in the line of work [Claimant] is currently
employed by." Dr. Johnson stated work restrictions would include "no work from
shoulder level [or] above with limited extension of his neck and no lifting from
shoulder level to above greater than 15 to 20 pounds."
Claimant obtained a vocational assessment from Dixon Pearsall. Pearsall stated for
an employee to work in a full-time competitive setting, the employee must be able
to work eight hours a day and forty hours a week. Pearsall noted Claimant was
sixty-five years old; had been a truck driver for over thirty years; had experience as
a construction trades worker; had completed the tenth grade; was a former member
of the South Carolina National Guard; had "[n]o additional formal education or
training"; and could read, write, and do basic math. Pearsall explained Claimant told
him he experienced daily neck, shoulder, and arm pain; he had multiple other
medical issues. Pearsall noted older people "have increased difficulty obtaining
and/or maintaining employment." After reviewing Claimant's medical records,
Pearsall found Claimant could "not meet the basic expectations and requirements of
competitive employment" and "in consideration of age (65) and prior work
experiences, and incorporating the absence of readily transferable skills to 'Light' or
Sedentary' work[,] it is 'highly likely' and 'probable' that [Claimant] will not return
to competitive employment," including commercial driving. Pearsall likewise found
it was "'highly likely' and 'very probable' that [Claimant] will not return to gainful
employment in any capacity," including both full and part-time employment.

Employers obtained a vocational assessment from George Page.4 Page found there
were light and sedentary jobs Claimant could do. Page noted Claimant informed
him he was retired, he could only make up to $15,000 a year, he would only "work
until he reached the $15,000 and not work the rest of the year," and G&G Logging
was aware of this; Page stated the jobs he provided as possible occupations for
Claimant "fit within [his] criteria of making no more than $15,000 per year due to
his Social Security income." Page also believed Claimant's age would not affect his
ability to get a job.

Claimant filed a Form 50, alleging injury to "both shoulders, neck, back, chest, [and]
left hand" arising out of the accident on May 12, 2014. Employers filed a Form 51
admitting Claimant was injured in a work related accident but denying the nature
and extent of Claimant's injuries and disabilities. Employers also filed a Form 20
based on Claimant's wages from January 18, 2014, to May 9, 2014, with a resulting
average weekly wage (AWW) of $695 and a compensation rate of $463.36.
Claimant later filed an amended Form 50, alleging he had also injured his left upper
extremity (arm, shoulder, and hand). In response, Employers filed a second Form

4
Page also testified at the hearing before the Single Commissioner, and his
testimony reflects the findings and information in his vocational assessment.
51 admitting Claimant was injured in a work related accident but again denying the
nature and extent of Claimant's injuries and disabilities.

Prior to the hearing by the Single Commissioner, Employers filed a Form 58,
pre-hearing brief. Amongst other issues, Employers sought a determination of
whether they were entitled to credit for overpayment of TTD benefits paid to
Claimant after he reached MMI. Employers then filed an amended Form 58 and
attached a memorandum of law in which they also sought a recalculation of
Claimant's AWW based on evidence that Claimant only planned to work up to the
Social Security earnings threshold.

At the hearing before the Single Commissioner, Claimant testified he continued to
work part-time for Bottle Logging after retiring because he did not have enough
money to get by, he received Social Security benefits while working part-time for
Bottle, and he was aware there was a limit on how much money he could earn before
his Social Security benefits were reduced. Claimant testified he was not aware what
the limit on his earnings was, but he admitted he could have told Page it was $15,000.
Claimant stated he earned $7,780 from Bottle Logging in 2012 and $8,806.50 from
Bottle Logging in 2013. Claimant clarified he did not limit the amount of work he
took from Bottle, he just worked when someone needed him to work, and he had no
plan to not exceed the $15,000 threshold. In 2014, Claimant explained he went to
work for G&G Logging, where he worked for thirteen weeks earning $9,285.
Claimant admitted it "was [his] intention in 2014 then to earn as much as [he] could
without reducing [his] retirement benefits." However, he stated he spoke to his
supervisor at G&G Logging about what he could make and what would happen if he
reached the Social Security earnings threshold, and they decided to "make that
decision when [they] got to that point." Claimant explained since the accident, he
had neck pain and tingling and numbness in his left arm and hand. He stated no
doctor had given him standing, walking, or sitting restrictions, and he was only
supposed to limit his bending, stooping, and squatting. However, he described his
work with G&G Logging required a lot of lifting—sometimes heavy lifting—as well
as walking, standing, sitting, bending, stooping, squatting, climbing, pushing,
pulling, twisting, and turning.

In its order, the Single Commissioner found (1) Claimant sustained an admitted
injury to his neck during the May 12, 2014 accident, which arose out of the course
of his employment; (2) Claimant's left shoulder, left arm, and left hand and fingers
were also injured related to the work incident; (3) Claimant was totally and
permanently disabled under section 49-2-10(B); and (4) Claimant was entitled to an
AWW of $695 with a corresponding compensation rate of $463.33 as calculated on
the Form 20 filed by Employers. The order also stated the Single Commissioner
gave greater weight to the findings of Dr. Johnson, Claimant's impairment rating
specialist, than Dr. Gee, Employers' impairment rating specialist, because Dr.
Johnson's records were more current in time and there was no reason for Claimant
to be rated by Dr. Gee in Sumter when all of his other treatment was received in the
Walterboro/Charleston area. Employers appealed the Single Commissioner's order
to the Full Commission, arguing the Single Commissioner erred in (1) calculating
the AWW, (2) finding Claimant was totally and permanently disabled pursuant to
section 49-2-10(B), and (3) giving greater weight to Dr. Johnson's findings rather
than Dr. Gee's based on arbitrary distinctions.

After a hearing, an Appellate Panel of the Full Commission affirmed in part and
reversed in part the Single Commissioner's order. The panel found "exceptional
reasons exist[ed] in this claim which require[d] recalculation of Claimant's [AWW]
to obtain a result that is fair," because Claimant testified it was his intention in 2014
to limit his earnings to the Social Security earnings threshold to avoid having his
retirement benefits decreased. The panel recalculated Claimant's AWW to be
$297.63 with a compensation rate of $198.47; it also found Employers were entitled
to a credit for the overpaid weekly compensation they paid Claimant in the amount
of $36,527.82. The panel affirmed the findings of the Single Commissioner as to
(1) Claimant's admitted neck injury and "additional causally related injuries to his
left shoulder, left arm, and left hand, and fingers"; (2) giving more weight to the
findings of Dr. Johnson rather than Dr. Gee; and (3) finding Claimant was totally
and permanently disabled pursuant to section 49-2-10(B). In particular, the panel
gave Dr. Johnson's findings more credit because his medical records were more
current than Dr. Gee's and because "there was no reason for Claimant to be treated
by Dr. Gee in Sumter, South Carolina when all of Claimant's medical treatment was
provided in the Walterboro/Charleston area." Additionally, the panel stated it based
its findings of total and permanent disability on Claimant's testimony, which it found
credible; claimant's wife's testimony; and "the evidence as a whole." They also noted
Claimant's and his wife's testimony "corroborate[d] the medical and vocational
evidence." This cross appeal followed.

II. STANDARD OF REVIEW

"The South Carolina Administrative Procedures Act (APA) establishes the standard
for judicial review of decisions of the Workers' Compensation Commission." Bass
v. Isochem, 365 S.C. 454, 467, 617 S.E.2d 369, 376 (Ct. App. 2005). "The
substantial evidence rule of the APA governs the standard of review in a Workers'
Compensation decision." Id. "Pursuant to the APA, this 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." Id. "A reviewing court may reverse
or modify a decision of an agency if the findings, inferences, conclusions, or
decisions of that agency are 'clearly erroneous in view of the reliable, probative and
substantial evidence on the whole record.'" Id. (quoting Bursey v. S.C. Dep't of
Health & Envtl. Control, 360 S.C. 135, 143–44, 600 S.E.2d 80, 85 (Ct. App. 2004)).

"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." Id. at 468, 617 S.E.2d at 376. "Where
there are conflicts in the evidence over a factual issue, the findings of the Appellate
Panel are conclusive." Id. at 468, 617 S.E.2d at 376–77. However, "[w]orkers'
compensation awards must not be based on surmise, conjecture or speculation."
Tiller v. Nat'l Health Care Ctr. of Sumter, 334 S.C. 333, 339, 513 S.E.2d 843, 845
(1999).

III. CLAIMANT'S APPEAL

A. Deviation from the Standard Wage Calculation

Claimant argues the Full Commission erred in finding he was going to stop working
when he reached the Social Security earnings threshold because the finding was
based on surmise, speculation, and conjecture. We agree.

"Average weekly wages" means the earnings of the injured
employee in the employment in which he was working at
the time of the injury during the period of fifty-two weeks
immediately preceding the date of the injury . . . .
"Average weekly wage" must be calculated by taking the
total wages paid for the last four quarters immediately
preceding the quarter in which the injury occurred as
reported on the Department of Employment and
Workforce's Employer Contribution Reports divided by
fifty-two or by the actual number of weeks for which
wages were paid, whichever is less. When the
employment, prior to the injury, extended over a period of
less than fifty-two weeks, the method of dividing the
earnings during that period by the number of weeks and
parts thereof during which the employee earned wages
shall be followed, as long as results fair and just to both
parties will be obtained. . . . When for exceptional reasons
the foregoing would be unfair, either to the employer or
employee, such other method of computing average
weekly wages may be resorted to as will most nearly
approximate the amount which the injured employee
would be earning were it not for the injury.

S.C. Code Ann. § 42-1-40 (2015) (emphasis added). Determining whether an
exceptional reason exists "for purposes of applying the standard wage calculation
method provided by the Workers' Compensation Act is a question of law." Elliott v.
S.C. Dep't of Transp., 362 S.C. 234, 237, 607 S.E.2d 90, 92 (Ct. App. 2004).
However, the Commission has "broad discretion in determining that exceptional
circumstances existed," because "[section 42-1-40] provides an elasticity or
flexibility with a view toward always achieving the ultimate objective of reflecting
fairly a claimant's probable future earning loss." Forrest v. A.S. Price Mech., 373
S.C. 303, 309, 644 S.E.2d 784, 787 (Ct. App. 2007) (alteration in original) (quoting
Sellers v. Pinedale Residential Ctr., 350 S.C. 183, 191, 564 S.E.2d 694, 698 (Ct.
App. 2002)). "Moreover, it is well established that the objective of wage calculation
is to arrive at a fair approximation of the claimant's probable future earning
capacity." Id. at 309–10, 644 S.E.2d at 787 (quoting Elliott, 362 S.C. at 238, 607
S.E.2d at 92). "Disability reaches into the future, not the past; loss as a result of the
injury must be thought of in terms of its impact on probable future earnings." Id. at
310, 644 S.E.2d at 787 (quoting Elliott, 362 S.C. at 238, 607 S.E.2d at 92).

Here, the Full Commission found Claimant's testimony credible, and he testified (1)
he did not limit the amount of work he took from Bottle, working when they needed
him; (2) he had no plan to not exceed the Social Security earnings threshold when
he worked for Bottle; (3) it "was [his] intention in 2014 then to earn as much as [he]
could without reducing [his] retirement benefits"; and (4) he spoke to his supervisor
at G&G Logging about what he could make and what would happen if he reached
the Social Security earnings threshold, and they decided to "make that decision when
[they] got to that point." Claimant also argued the Social Security earnings threshold
would have changed for him six months after the accident to be above the
compensation rate as calculated using the standard wage calculation. Given
Claimant's testimony, which indicated he would have continued to work past the
Social Security earnings threshold when he was at Bottle and that he may have
continued to work past the Social Security earnings threshold at G&G Logging, and
the fact the Social Security earnings threshold would have risen for him a few
months after the accident, we find it was speculative to find Claimant did not plan
to work past a fixed Social Security earnings threshold. See Tiller, 334 S.C. at 339,
513 S.E.2d at 845 ("Workers' compensation awards must not be based on surmise,
conjecture or speculation."); see also § 42-1-40 (providing the standard wage
calculation should be used unless there are exceptional reasons that the standard
calculation would be unfair to the employee or the employer); Forrest, 373 S.C. at
309–10, 644 S.E.2d at 787 ("[I]t is well established that the objective of wage
calculation is to arrive at a fair approximation of the claimant's probable future
earning capacity." (quoting Elliott, 362 S.C. at 238, 607 S.E.2d at 92)). Accordingly,
we reverse the Full Commission's finding that exceptional reasons existed to deviate
from the standard wage calculation and its recalculation of Claimant's AWW, and
we remand these issues to the Full Commission. On remand, the record may be
opened to allow either party to present evidence as to the AWW or that exceptional
reasons have arisen since the Full Commission's order to deviate from the standard
wage calculation and to recalculate Claimant's AWW.

B. Credit for Over Payment of TTD Benefits

Because we found the Full Commission erred in finding Claimant's social security
benefits constituted exceptional reasons to deviate from the standard wage
calculation and in reducing Claimant's AWW from $695.00 with a compensation
rate of $463.36 to $297.63 with a compensation rate of $198.47 based on surmise
and speculation, we must also find substantial evidence does not support the
Commission's grant of a credit of $36,527.82—the amount of the allegedly overpaid
weekly compensation Claimant received—to Employers. See S.C. Code Ann. § 42-
9-210 (2015) ("Any payments made by an employer to an injured employee during
the period of his disability, or to his dependents, which by the terms of this title were
not due and payable when made may, subject to the approval of the commission, be
deducted from the amount to be paid as compensation."); Brittle v.
Raybestos-Manhattan, Inc., 241 S.C. 255, 257, 127 S.E.2d 884, 885 (1962) ("The
approval of the Commission for such deduction is required by the foregoing section,
and its conclusions thereabout are binding on appeal unless there is an absence of
competent evidence to support them."). Accordingly, we reverse as to this issue and
remand to the Full Commission to determine whether exceptional reasons existed to
deviate from the standard wage calculation to reduce Claimant's AWW and whether
a credit is due to Employers.

IV. EMPLOYERS' APPEAL

A. Weight Given to Doctor's Findings

Employers argue the Commission erred in giving greater weight to Dr. Johnson's
findings than Dr. Gee's findings because the only reasons for doing so were arbitrary.
Specifically, Employers state the only reasons the Commission gave greater weight
to Dr. Johnson than Dr. Gee was because (1) Dr. Johnson's records were more
current than Dr. Gee's and (2) there was no reason for Claimant to be rated by Dr.
Gee in Sumter when Claimant's treatment occurred in Walterboro/Charleston.

We find the Full Commission did not err in giving more credit to the findings of Dr.
Johnson than the findings of Dr. Gee. Initially, we agree with Employers' argument
that the locations of Dr. Gee's and Dr. Johnson's offices was an arbitrary reason to
give more credit to Dr. Johnson because we cannot see how the location of the
doctors' offices affects the quality of the doctors' impairment ratings and findings,
especially given the fact that Dr. Johnson's and Dr. Gee's offices were similar
distances away from where Claimant resides. See Trimmier v. S.C. Dep't of Labor,
Licensing & Regulation, 405 S.C. 239, 246, 746 S.E.2d 491, 495 (Ct. App. 2013)
("A decision is arbitrary if it is without a rational basis, is based alone on one's will
and not upon any course of reasoning and exercise of judgment, is made at pleasure,
without adequate determining principles, or is governed by no fixed rules or
standards." (quoting Deese v. S.C. State Bd. of Dentistry, 286 S.C. 182, 184–85, 332
S.E.2d 539, 541 (Ct. App. 1985))). However, we do not agree with Employers'
argument that giving more credit to Dr. Johnson because he saw Claimant three
weeks after Dr. Gee, making his medical records more current, is arbitrary. Medical
issues and the pain experienced by a patient are subject to change (for the worse or
for the better); therefore, we believe relying more heavily on the most current
medical records is rational. Thus, because the Full Commission had at least one
legitimate reason for relying more heavily on Dr. Johnson's medical findings than
Dr. Gee's, we find Employers' substantial rights were not prejudiced by the arbitrary
geographical finding, and we affirm the Full Commission's judgment as to the
weight of the evidence. See S.C. Code Ann. § 1-23-380(5)(f) (Supp. 2018) ("The
court may not substitute its judgment for the judgment of the agency as to the weight
of the evidence on questions of fact. . . . [However, t]he court may reverse or modify
the decision if substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are . . . arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted exercise of
discretion.").

Moreover, we note there was a conflict in the medical evidence in this case with Dr.
Gee giving Claimant a nine percent impairment rating to the whole person and Dr.
Johnson giving Claimant a twenty-six impairment rating to the whole person. There
was also conflict between the doctors as to the state of Claimant's injury and the
impairment to his left upper extremity. The Full Commission adopted the Single
Commissioner's findings as to this issue, and "[w]here there is a conflict in the
evidence, the [C]ommission's findings of fact are conclusive." Sharpe v. Case
Produce, Inc., 336 S.C. 154, 160, 519 S.E.2d 102, 105 (1999); see Lockridge v.
Santens of Am., Inc., 344 S.C. 511, 518, 544 S.E.2d 842, 846 (Ct. App. 2001) ("The
final determination of witness credibility and the weight to be accorded evidence is
reserved to the [F]ull [C]ommission, and it is not the task of the court to weigh the
evidence as found by the [C]ommission."). Therefore, we find the Full Commission
did not err in giving more weight to Dr. Johnson's findings than Dr. Gee's findings,
and accordingly, we affirm as to this issue.

B. Total and Permanent Disability under Section 42-9-10

Employers argue the Full Commission erred in awarding Claimant total and
permanent disability pursuant to section 42-9-10 because he suffered a single injury
to his cervical spine, limiting him to recovery under section 42-9-30 of the South
Carolina Code (2015).5 We disagree.

We believe the Full Commission did not err in finding Claimant permanently and
totally disabled pursuant to section 42-9-10(B) because (1) South Carolina law
provides a claimant is permanently and totally disabled when a single injury to a
scheduled member causes an impairment, physical deficiency, or negative effect to
another member of the claimant's body and (2) substantial evidence supports a
finding that Claimant's admitted cervical spine injury had a disabling effect on
Claimant's left upper extremity (shoulder, arm, and hand) because every doctor
Claimant saw noted Claimant's continued complaints of both neck and left upper
extremity pain and that Claimant's neck injury caused radiating pain down
Claimant's left arm. See § 42-9-10(B) ("The loss of both hands, arms, shoulders,
feet, legs, hips, or vision in both eyes, or any two thereof, constitutes total and
permanent disability . . . ."); Singleton v. Young Lumber Co., 236 S.C. 454, 471, 114
S.E.2d 837, 845 (1960) ("Where the injury is confined to the scheduled member, and
there is no impairment of any other part of the body because of such injury, the
employee is limited to the scheduled compensation."); id. ("To obtain compensation
in addition to that scheduled for the injured member, claimant must show that some
other part of his body is affected."); Colonna v. Marlboro Park Hosp., 404 S.C. 537,
545, 745 S.E.2d 128, 133 (Ct. App. 2013) ("[T]he question of whether [a claimant]
is totally and permanently disabled, and thus entitled to recover under section
42-9-10, turns on whether h[is] initial injury had a 'disabling effect' on other parts of
h[is] body."); Bass, 365 S.C. at 469, 617 S.E.2d at 377 ("It is not within our province

5
Section 42-9-30 provides the disability period and the compensation to be paid
for an injury to a scheduled member.
to reverse findings of the Appellate Panel which are supported by substantial
evidence."); see also Wigfall v. Tideland Utils., Inc., 354 S.C. 100, 104, 580 S.E.2d
100, 102 (2003) ("The Singleton Court intended 'impairment' to encompass a
physical deficiency."). Based on the medical evidence in this case, we find Claimant
did not suffer a separate, second injury to his left upper extremity; however, his neck
(cervical spine) injury negatively affected and impaired his left upper extremity,
entitling him to total and permanent disability. Because the Full Commission
appeared to find Claimant suffered a second, separate injury to his left upper
extremity as a basis for finding Claimant totally and permanently disabled pursuant
to section 49-2-10, and we hold Claimant did not suffer a separate injury but, instead,
his initial injury had a disabling effect on his left upper extremity entitling him to
total and permanent disability under section 49-2-10, we affirm as modified.

C. Burden of Proof to Show Entitlement to Total and Permanent
Disability

Employers argue Claimant did not meet his burden of proving he was entitled to
total and permanent disability because the Commission's finding was based on (1) a
flawed hypothetical posed to Dr. Pacult in his deposition that was unsupported by
the facts and evidence in this case and (2) "the patently erroneous premise" that a
person who could not meet Pearsall's "competitive employment" standard, which
requires a person be able to work eight-hour days and forty-hour weeks, is totally
and permanently disabled. We disagree.

First, we do not agree with Employers' argument the Full Commission's finding of
total and permanent disability was based on a flawed hypothetical that was
unsupported by evidence in the case because the facts in the hypothetical question
posed to Dr. Pacult were supported by some of the evidence in this case. See
Chapman v. Foremost Dairies, Inc., 249 S.C. 438, 449, 154 S.E.2d 845, 851 (1967)
("[I]t is well settled that the probative value of expert testimony, based upon
hypothetical facts, stands or falls on the existence or nonexistence of the facts upon
which it is predicated."). During his deposition, Claimant asked Dr. Pacult:

if there is a greater risk of further injury on his back by
going back to work in the logging [business] . . . if he came
back in today and said, you know, "Going out in the
logging woods, I bounce around all the time. I don’t want
to do further damage to my back," would you recommend
to him, "Well, you need to go back to work" or "You need
to go back to work as a log truck driver."
Dr. Pacult replied he would not. Although Dr. Pacult testified he did not believe to
a reasonable degree of medical certainty that driving a logging truck would cause
further injury to Claimant, Dr. Johnson stated in his report if Claimant returned to
work as a log truck driver, he believed, "it is inevitable that [Claimant] will injure a
disc above his cervical fusion. Work restrictions of avoiding heavy lifting and strain
are impossible in the line of work [Claimant] is currently employed in."
Furthermore, Claimant, who the Single Commissioner and the Full Commission
found credible, testified as to the how he would bounce around in the logging truck,
as well as the strain and heavy lifting involved in being a log truck driver. Thus,
although there was a conflict in the evidence about the existence of the facts in the
hypothetical question, we believe Dr. Johnson's findings and Claimant's testimony
are evidence of the existence of the facts in the hypothetical question posed to Dr.
Pacult. Therefore, the Full Commission did not err in using Dr. Pacult's answer to
this hypothetical question in reaching its decision.

Second, we do not agree with Employers' argument the Full Commission's finding
of permanent and total disability was based on the erroneous premise that a person
who cannot work eight hours a day and forty hours a week is totally and permanently
disabled. While the Full Commission noted Pearsall did not believe Claimant would
be able to meet the requirements of "competitive employment," it stated it based its
finding on the "evidence as a whole." Thus, the evidence also included Pearsall's
finding that Claimant was "highly likely" to not find full-time or part-time work.
Thus, the Full Commission did not base its finding of total and permanent disability
only on the premise that Claimant could not fulfil "competitive employment"
requirements but also on the premise that he would not be able to find any work,
including part-time positions.

Finally, we note Employers appear to argue the Full Commission based its finding
that Claimant proved he was totally and permanently disabled only on (1) the
hypothetical asked to Dr. Pacult and (2) Pearsall's finding that Claimant could not
meet the requirements of competitive employment. However, the Full Commission
noted it based its finding on Claimant's testimony, which it and the Single
Commissioner found credible; Claimant's wife's testimony; and "the evidence as a
whole." In particular, the Full Commission noted Claimant's and his wife's
testimony "corroborate[d] the medical and vocational evidence." Therefore, even if
the Full Commission had erred in basing its decision in part on either the
hypothetical or Pearsall's findings, we find the Full Commission had other
substantial evidence to support its finding that Claimant proved his entitlement to
total and permanent disability. See Bass, 365 S.C. 469, 617 S.E.2d at 377 ("It is not
within our province to reverse findings of the Appellate Panel which are supported
by substantial evidence."). Accordingly, we affirm as to this issue.

V. CONCLUSION

Accordingly, we reverse the Full Commission's (1) finding that exceptional reasons
existed to deviate from the standard wage calculation, (2) recalculation of Claimant's
AWW and corresponding compensation rate, and (3) grant of a credit for overpaid
TTD benefits to Employers; we remand these issues to the Full Commission to
determine whether there were exceptional reasons to deviate from the standard wage
calculation, to calculate the proper amount of Claimant's AWW, and to determine if
Employers are entitled to a credit for overpaid TTD benefits. We affirm the Full
Commission's findings that (1) Dr. Johnson's medical findings were entitled to
greater weight than Dr. Gee's and (2) Claimant met his burden of proof to show he
was totally and permanently disabled. Finally, we affirm as modified the Full
Commission's finding that Claimant was entitled to total and permanent disability
pursuant to section 49-2-10.

REVERSED AND REMANDED IN PART, AFFIRMED IN PART, AND
AFFIRMED AS MODIFIED IN PART.

WILLIAMS, GEATHERS, and HILL, JJ., concur.