Arrowpoint Capital v. SC Second Injury

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

Arrowpoint Capital Corporation/Arrowood Indemnity
Co., Carrier, Appellant,

v.

South Carolina Second Injury Fund, Respondent.

[In Re: Joe Mathis, Employee/Claimant,

v.

Yuasa Exide, Incorporated, Employer]

Appellate Case No. 2014-002212

Appeal From Sumter County
W. Jeffrey Young, Circuit Court Judge

Unpublished Opinion No. 2017-UP-229
Heard January 25, 2017 – Filed May 31, 2017

REVERSED

Vernon F. Dunbar and Ashley R. Forbes, both of
McAngus Goudelock & Courie, LLC, of Greenville, for
Appellant.
Latonya Dilligard Edwards, of Dilligard Edwards, LLC,
of Columbia, for Respondent.

PER CURIAM: Arrowpoint Capital Corporation (Carrier) appeals the circuit
court's order affirming the Workers' Compensation Commission's (the
Commission's) denial of Carrier's claim for reimbursement from the Second Injury
Fund (the Fund).1 Carrier argues the circuit court erred in denying its claim for
reimbursement because Carrier met all elements for Fund reimbursement pursuant
to section 42-9-400 of the South Carolina Code (2015). We reverse.

The circuit court committed an error of law in interpreting section 42-9-400(a) to
preclude reimbursement. See Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612,
632 S.E.2d 874, 878 (Ct. App. 2006) ("The appellate court may reverse or modify
the Commission's decision only if the claimant'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."); Springs Indus., Inc. v. S.C. Second Injury Fund, 296 S.C. 359, 364, 372
S.E.2d 915, 918 (Ct. App. 1988) (holding "the only reasonable conclusion to be
drawn from the substantial evidence in the record is that Springs Industries is
entitled to reimbursement from the Second Injury Fund").

Section 42-9-400(a) provides,

If an employee who has a permanent physical
impairment from any cause or origin incurs a subsequent
disability from injury by accident arising out of and in
the course of his employment, resulting in compensation
and medical payments liability or either, for disability
that is substantially greater and is caused by aggravation

1
The Legislature funded the Second Injury Fund on a continuing basis through
"equitable assessments" upon insurance carriers, self-insurers, and the State
Accident Fund. S.C. Code Ann. § 42-7-310(d)(2) (2015). In 2007, the Legislature
terminated the Fund effective July 1, 2013, and tasked the State Fiscal
Accountability Authority with the "orderly winding down of the affairs of the fund
so that the remaining liabilities of the fund are paid utilizing assessments,
accelerated assessments, annuities, loss portfolio transfers, or such other
mechanisms as are reasonably determined necessary to fund any remaining
liabilities of the fund." S.C. Code Ann. § 42-7-320(A) (Supp. 2016).
of the preexisting impairment than that which would
have resulted from the subsequent injury alone, the
employer or his insurance carrier shall pay all awards of
compensation and medical benefits provided by this title;
but such employer or his insurance carrier shall be
reimbursed from the Second Injury Fund . . . .

In reversing, we are bound by our supreme court's holding in State Workers'
Compensation Fund v. S.C. Second Injury Fund, 313 S.C. 536, 539–40, 443 S.E.2d
546, 548 (1994) (determining a firefighter's "total disability from heart disease in
1986 qualifie[d] as a subsequent disability arising out of his employment" and
reversing this court's denial of reimbursement). There, the State Workers'
Compensation Fund successfully pursued Second Injury Fund reimbursement
when a Forestry Commission firefighter diagnosed with coronary artery disease in
1974 was subsequently rendered totally disabled due to arteriosclerosis and cardiac
disease. Id. at 537, 443 S.E.2d at 547. In effect, the supreme court concluded the
firefighter's occupational cardiac disease, as aggravated by the hazards of his work,
constituted both a preexisting condition and subsequent injury. See id. at 539, 443
S.E.2d at 548 (holding separate work-related injuries are not required for
reimbursement, and "a 'prior disability' need not result from an industrial
accident").

Joe Mathis's (Claimant's) case is analogous. Section 42-9-400(a) provides for
reimbursement if an "employee who has a permanent physical impairment from
any cause or origin incurs a subsequent disability from injury by accident arising
out of and in the course of his employment." Here, Claimant suffered documented
heavy metal exposure dating back to the 1980s, and this continued exposure
ultimately led to his disablement. Notably, both parties acknowledged during oral
arguments that Claimant's cognitive issues were attributable to his lead exposure at
his workplace. Thus, the circuit court's interpretation of section 42-9-400(a) to
preclude reimbursement conflicts with our supreme court's analysis in State
Workers' Compensation Fund.

Additionally, Carrier satisfies the remaining reimbursement factors that

1. An employee must have a permanent physical
impairment from any origin;

2. The employer retains the employee after knowledge of
the prior impairment;
3. The employee incurs a subsequent disability from
injury by accident arising out of and in the course of his
employment;

4. The subsequent injury combines with or aggravates the
preexisting condition to cause "substantially greater"
disability than would have been caused by the subsequent
injury alone, or

5. The second injury most probably would not have
occurred but for the preexisting condition.

State Workers' Comp. Fund, 313 S.C. at 538, 443 S.E.2d at 547–48 (citations
omitted).

Relying upon our supreme court's analysis in State Workers' Compensation Fund,
we conclude the only reasonable inference to be drawn from the substantial
evidence in the record here is that Claimant's prolonged heavy metal exposure and
alleged brain damage combined with or aggravated the preexisting cognitive
disability from which Claimant suffered to cause "substantially greater" disability
than would have been caused by any single subsequent injury. Such permanent
physical impairments as listed in section 42-9-400(d) are presumed to be
permanent and "a hindrance or obstacle to employment or reemployment."

Substantial evidence in the form of internal medical records establishes Claimant's
employer had knowledge of his lead exposure dating back to the 1980s. Claimant
was eventually disabled by effects from the lead exposure, which both sides
conceded during oral argument. Finally, two doctors asserted in unchallenged
medical questionnaires that Claimant's continued exposure to lead aggravated or
combined with his preexisting condition to render him permanently disabled.
Accordingly, we reverse the circuit court's order denying Carrier reimbursement.

REVERSED.

LOCKEMY, C.J., and KONDUROS and MCDONALD, JJ., concur.