Beckman v. Sysco Columbia

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

Neal Beckman, Employee, Appellant,

v.

Sysco Columbia, LLC, Employer, and Gallagher Bassett
Services, Inc., Carrier, Respondents.

Appellate Case No. 2013-000005

Appeal From The Workers' Compensation Commission

Opinion No. 2014-UP-492
Heard February 20, 2014 – Filed March 19, 2014
Withdrawn, Substituted and Refiled July 9, 2014

REVERSED AND REMANDED

Frederick W. Riesen, Jr., of Riesen Law Firm, LLP, of N.
Charleston, and Stephen Benjamin Samuels, of Samuels
Law Firm, LLC, of Columbia, for Appellant.

Joseph Hubert Wood, III, and Kathryn Fiehrer Walton,
both of Wood Law Group, LLC, of Charleston, for
Respondents.
SHORT, J.: In this appeal from the Workers' Compensation Commission
(Commission), Neal Beckman argues the Appellate Panel of the Workers'
Compensation Commission (Appellate Panel) erred in finding he was limited to a
disability award for his back as a scheduled member because the evidence showed
he should have been awarded disability under the loss of earning capacity statute.
We reverse and remand.

FACTS

Beckman, a delivery driver, was injured on March 25, 2010, while loading a hand
truck for his employer, Sysco Columbia, LLC (Sysco). Beckman alleged in his
Workers' Compensation Form 50 that he pulled muscles in his back, injuring his
back, buttocks, both legs, and right foot. Sysco admitted Beckman's back injury,
but denied his other injuries. Following the accident, Sysco provided Beckman
with authorized medical care and treatment, primarily with Dr. Timothy
Zgleszewski. Beckman also underwent an independent medical evaluation with
Dr. Scott Boyd.

On March 8, 2012, Sysco filed a Form 21 seeking to terminate temporary
compensation and have an award made for permanent disability compensation.
Sysco asserted Beckman reached a level of maximum medical improvement on
May 2, 2011, per a note by Dr. Zgleszewski, or alternatively, by February 27,
2012, per a note by Dr. Boyd.

During the hearing before the single commissioner, Sysco asserted Beckman was
entitled to permanent disability pursuant to section 42-9-30(21) of the South
Carolina Code. Beckman asserted any permanency award should be based on a
loss of earnings under section 42-9-20.1 In her order, the single commissioner
found Beckman "sustained a 35% permanent loss of use of the spine
(encompassing [Beckman's] entire spine and including any alleged radiculitis)
pursuant to § 42-9-30(21)." The single commissioner further found Beckman's
treating physician assigned a 15% combined impairment rating for Beckman's back
and sacroiliac joint (SI joint), and the independent medical examiner assigned an
8% impairment rating. However, the single commissioner also found the greater
weight of the evidence showed only Beckman's back was affected by the March

1
The parties stipulated to an average weekly wage of $1,062.94, with a resulting
compensation rate of $689.71.
25, 2010 admitted injury by accident. The commissioner ordered Sysco to pay a
lump sum payment to Beckman representing compensation for 35% permanent
loss of use to the back pursuant to § 42-9-30(21), with Sysco being entitled to take
credit for all temporary disability compensation paid to Beckman for the period
after February 27, 2012.

Beckman filed a Form 30 notice of appeal. After a hearing, the Appellate Panel
issued an order affirming the decision of the single commissioner in full. This
appeal followed.

STANDARD OF REVIEW

The South Carolina Administrative Procedures Act (APA) establishes the standard
for judicial review of decisions by the Appellate Panel. Carolinas Recycling Grp.
v. S.C. Second Injury Fund, 398 S.C. 480, 482, 730 S.E.2d 324, 326 (Ct. App.
2012). Under the scope of review established in the APA, this court may not
substitute its judgment for that of the Appellate Panel as to the weight of the
evidence on questions of fact, but may reverse or modify the Appellate Panel's
decision if the appellant's substantial rights have been prejudiced because the
decision is affected by an error of law or is "clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole record." See S.C. Code
Ann. § 1-23-380(5)(e) (Supp. 2013). "It is not within our province to reverse
findings of the Appellate Panel which are supported by substantial evidence." Hall
v. United Rentals, Inc., 371 S.C. 69, 79-80, 636 S.E.2d 876, 882 (Ct. App. 2006).
Our supreme court has defined substantial evidence as evidence that, in viewing
the record as a whole, would allow reasonable minds to reach the same conclusion
the Appellate Panel reached. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d
304, 306 (1981). "[T]he possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency's finding from being
supported by substantial evidence." Palmetto Alliance, Inc. v. S.C. Pub. Serv.
Comm'n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).

LAW/ANALYSIS

Beckman argues the Appellate Panel erred in finding he was limited to a disability
award for his back as a scheduled member because the evidence showed he should
have been awarded disability under the loss of earning capacity statute in section
42-9-20 of the South Carolina Code. We agree.
"[T]he guiding principle undergirding our workers' compensation system [is] that
the Act is to be liberally construed in favor of the claimant." Hutson v. S.C. State
Ports Auth., 399 S.C. 381, 387, 732 S.E.2d 500, 503 (2012). In a workers'
compensation case, the extent of impairment "need not be shown with
mathematical precision." Linen v. Ruscon Constr. Co., 286 S.C. 67, 68, 332 S.E.2d
211, 212 (1985). However, an award "may not rest on surmise, conjecture, or
speculation; it must be founded on evidence of sufficient substance to afford it a
reasonable basis." Id.

Dr. Zgleszewski assigned a 10% medical impairment to Beckman's back and spine,
and a 5% medical impairment to his SI joint, for a combined 15% impairment
rating. Dr. Zgleszewski also stated Beckman would need two to three SI joint
injections over the following two years. Dr. Boyd assigned Beckman with an
impairment rating of 8%. The Appellate Panel's order adopted the single
commissioner's finding that Beckman's treating physician assigned a 15%
combined impairment rating for Beckman's back and SI joint. The Appellate Panel
also adopted the single commissioner's finding that the greater weight of the
evidence showed only Beckman's back was affected by the March 25, 2010
admitted injury by accident. Furthermore, the Appellate Panel agreed with the
single commissioner's finding that there was no objective evidence of
radiculopathy, and Dr. Zgleszewski diagnosed radiculitis based on Beckman's
subjective complaints.

Beckman argues the Appellate Panel erred in applying the "two body-part rule" set
forth in Singleton v. Young Lumber Co., 236 S.C. 454, 114 S.E.2d 837 (1960). In
Singleton, Singleton suffered a sole injury to a scheduled member, his leg, and no
other condition was claimed to have contributed to his disability. Id. at 471, 114
S.E.2d at 845. Singleton argued the injury to his leg was so disabling that he
should be found totally disabled. Id. at 468, 114 S.E.2d at 844. The court held that
because the injury was confined to a scheduled member, compensation must be
determined under the scheduled injury statute as provided by the legislature. Id. at
473, 114 S.E.2d at 846. Thus, an impairment involving only a scheduled member
is compensated under the scheduled injury statute and not the general disability
statute. Id. The court stated that "[t]o obtain compensation in addition to that
scheduled for the injured member, [Singleton] must show that some other part of
his body is affected." Id. at 471, 114 S.E.2d at 845.

In Wigfall v. Tideland Utilities, Inc., 354 S.C. 100, 106-07, 580 S.E.2d 100, 103
(2003) (citation omitted), our supreme court summarized its holding in Singleton:
Singleton stands for the exclusive rule that a claimant
with one scheduled injury is limited to the recovery under
§ 42-9-30 alone. The case also stands for the rule that an
individual is not limited to scheduled benefits under § 42-
9-30 if he can show additional injuries beyond a lone
scheduled injury. This principle recognizes "the
common-sense fact 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."

Similarly, in Simmons v. City of Charleston, 349 S.C. 64, 76, 562 S.E.2d 476, 482
(Ct. App. 2002), this court affirmed the Workers' Compensation Commission's
finding that the claimant was entitled to proceed under the general disability
statute, as substantial evidence was presented that the claimant suffered additional
complications to another part of the body, other than a scheduled member. "The
policy behind allowing a claimant to proceed under the general disability § 42-9-10
and § 42-9-20 allows for a claimant whose injury, while falling under the
scheduled member section, nevertheless affects other parts of the body and
warrants providing the claimant with the opportunity to establish a disability
greater than the presumptive disability provided for under the scheduled member
section." Id. (quoting Brown v. Owen Steel Co., 316 S.C. 278, 280, 450 S.E.2d 57,
58 (Ct. App. 1994)). "All that is required is that the injury to a scheduled member
also affect another body part." Id.

Beckman asserts that although the primary injury was to his back, he also injured
his SI joint, and he suffered radiculopathy in his left leg caused by the back injury.
He argues that because the evidence shows his injury is not limited to his back, he
is entitled to proceed under the loss of earnings capacity statute found in section
42-9-20 of the South Carolina Code. Section 42-9-20 provides:

Except as otherwise provided in § 42-9-30, when the
incapacity for work resulting from the injury is partial,
the employer shall pay, or cause to be paid, as provided
in this chapter, to the injured employee during such
disability a weekly compensation equal to sixty-six and
two-thirds percent of the difference between his average
weekly wages before the injury and the average weekly
wages which he is able to earn thereafter, but not more
than the average weekly wage in this State for the
preceding fiscal year. In no case shall the period covered
by such compensation be greater than three hundred forty
weeks from the date of injury. In case the partial
disability begins after a period of total disability, the
latter period shall not be deducted from a maximum
period allowed in this section for partial disability.

S.C. Code Ann. § 42-9-20 (1976). Thus, he asserts the Appellate Panel erred in
only addressing his disability under the medical model found in section 42-9-
30(21) of the South Carolina Code. S.C. Code Ann. § 42-9-30(21) (Supp. 2013).

Beckman cites to Gilliam v. Woodside Mills, 319 S.C. 385, 461 S.E.2d 818 (1995),
as addressing virtually the same issue as in this case. In Gilliam, the employer
asserted this court erred in holding as a matter of law that the hip is not part of the
leg. Id. at 387, 461 S.E.2d at 819. The employer contended the only question
presented to the court was whether there was substantial evidence to support the
Appellate Panel's finding that Gilliam's injury was confined to her leg. Id. Our
supreme court disagreed with the employer, noting that on appeal from the
Appellate Panel, this court may reverse where the decision is affected by an error
of law.2 Id. The supreme court stated this court joined several jurisdictions that
have held as a matter of law that the hip socket is part of the pelvis and not part of
the leg for workers' compensation purposes, and the court did not find error with
this view. Id. Beckman, therefore, argues Gilliam supports his argument that the
SI Joint, which is located in the pelvis, is not a part of the back for workers'
compensation purposes.

2
The employer further contended the determination whether the hip is part of the
leg is a question of fact instead of a question of law. Id. The supreme court found
there was no dispute that Gilliam suffered an injury to her hip, resulting in a hip
replacement. Id. Thus, the supreme court found this court correctly ruled, given
the undisputed facts in this case, that it was a matter of law whether the hip socket
is part of the pelvis or part of the leg. Id.
Sysco cites to Sanders v. MeadWestvaco Corp., 371 S.C. 284, 638 S.E.2d 66 (Ct.
App. 2006), in support of its position that Beckman's disability for his SI joint is
compensated based on his loss of use of his back. In Sanders, the Appellate Panel
awarded Sanders compensation under section 42-9-30(19) for an injury to his back
due to permanent loss of use of his lumbar spine and SI joint. Id. at 290, 638
S.E.2d at 69. The employer argued the circuit court erred in affirming an award of
benefits for his back based upon impairment to the lumbar spine and SI joint,
which are not scheduled for compensation under section 42-9-30. Id. at 289-90,
638 S.E.2d at 69. This court found no reversible error, noting a review of the
Appellate Panel's order and the record reflected Sanders' injury and subsequent
disability was clearly to his back. Id. at 290, 638 S.E.2d at 69. Thus, the court did
not specifically hold as a matter of law that the SI joint is a part of the back for
workers' compensation purposes.

Regardless of whether the SI joint is a part of the back for workers' compensation
purposes, we hold the Appellate Panel's finding that Beckman was limited to a
disability award for his back as a scheduled member is not supported by substantial
evidence. Instead, the evidence in the record indicates Beckman suffered from
radiculopathy as a result of his back injury. Although Dr. Zgleszewski's notes
from June 7, 2010, state Beckman's "EMG/NCS does not have a radiculopathy in
either leg," the note continues that "EMG/NCS can be an imperfect diagnostic tool
for determining radiculopathy." In fact, Dr. Zgleszewski's notes from June 7,
2010, and July 9, 2010, state a diagnosis of radiculitis. Dr. Zgleszewski's notes
from June 7 and July 9 provide Beckman complained of pain that radiated to his
left buttock and left hip. Dr. Zgleszewski noted during his physical examinations
of Beckman: "There is tightness noted in the left piriformis muscle(s) today. There
is tenderness over the bilateral PSIS's. There is a positive Fortin Finger test
bilaterally[.] Neural tension signs are positive in the left leg in the seated slumped
position." Dr. Zgleszewski's notes from November 10, 2010, state Beckman was
still suffering from pain that radiated to his left buttock and left hip. His physical
examination noted: "There is tightness noted in the left piriformis muscle(s) today.
Neural tension signs are positive in the left leg in the seated slumped position. . . .
There is tenderness over the left Greater Trochanter." Dr. Zgleszewski's notes
from March 21, 2011, and May 2, 2011, again provide Beckman continued to
suffer pain that radiated to his left buttock and left thigh and down to his left foot.
He also noted the pain radiated to his left hip. Dr. Zgleszewski further noted
during his physical examinations: "There is tenderness over the left greater
trochanter"; "There is tightness noted in the left piriformis and Gluteals muscle(s)
today"; and "Neural tension signs are positive in the left leg in the seated slumped
position." Dr. Zgleszewski's statement to the Commission, dated September 2,
2011, states Beckman suffered from "sacroiliitis; lumbar disc injury &
radiculopathy." Furthermore, Dr. Boyd's notes from Beckman's independent
medical evaluation on February 27, 2012, state Beckman suffered pain that
radiated down into his left leg, and he had numbness around his foot.

Therefore, we find the Appellate Panel's order was clearly erroneous in view of the
substantial evidence in the record that Beckman suffered from radiculopathy as a
result of his back injury. See S.C. Code Ann. § 1-23-380(5)(e) (Supp. 2013) ("The
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 . . . clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record."). As a result, Beckman is entitled to
proceed under the loss of earnings capacity statute found in section 42-9-20 of the
South Carolina Code.

CONCLUSION

Accordingly, we reverse the Appellate Panel and remand the case to the
Commission to address Beckman's eligibility for an award under section 42-9-20
of the South Carolina Code because the Appellate Panel's finding that Beckman's
injury is confined to a scheduled member is not supported by substantial evidence.

REVERSED AND REMANDED.

HUFF and THOMAS, JJ., concur.