Verma Tedder v. Darlington County

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

Verma Tedder, Employee, Claimant, Appellant,

v.

Darlington County Community Action Agency,
Employer, and State Accident Fund, Carrier,
Respondents.

Appellate Case No. 2016-001003

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2018-UP-349
Heard June 7, 2018 – Filed August 1, 2018

AFFIRMED

Stephen J. Wukela, of Wukela Law Office, of Florence,
for Appellant.

G. Murrell Smith, Jr., of Lee, Erter, Wilson, Holler &
Smith, LLC, of Sumter, for Respondents.
PER CURIAM: Appellant Verma Tedder challenges a decision of the Appellate
Panel of the South Carolina Workers' Compensation Commission (Appellate Panel)
denying her claim for total and permanent disability benefits and future medical
treatment. Tedder argues the Appellate Panel erred in (1) declining to consider her
vocational report; (2) finding that her functional capacity report was invalid; (3)
ignoring her work restrictions and her physical therapist's records; and (4) awarding
Respondents over a year of credit for temporary benefits paid to Tedder. We affirm.

I. Vocational Report

Tedder argues the Appellate Panel should have considered her vocational
report because Regulation 67-612 "requires the admission of an expert's report if it
was provided to the moving party more than ten . . . days before the scheduled
hearing." In support of this argument, Tedder cites S.C. Code Ann. Regs. 67-
612(B)(2) (2012), which states,

A written expert's report to be admitted as evidence at the
hearing must be provided to the opposing party as follows:

...

(2) The non-moving party must provide to the moving
party any report not provided by the moving party at least
ten days before the scheduled hearing.

(emphasis added). This language establishes merely a prerequisite to the admission
of an expert's report into evidence and does not take away the single commissioner's
authority to exclude such a report for other reasons. See S.C. Code Ann. § 1-23-
330(1) (2005) ("Irrelevant, immaterial[,] or unduly repetitious evidence shall be
excluded."); cf. Michau v. Georgetown Cty. ex rel. S.C. Ctys. Workers Comp. Tr.,
396 S.C. 589, 594, 723 S.E.2d 805, 807 (2012) (stating section 1-23-330(1)
"establishes a minimum standard that applies generally, but not exclusively").

We acknowledge that Regulation 67-612 states, in pertinent part, that any
"report submitted to the opposing party in accord with [S.C. Code Ann. Regs. 67-
612(B)(1)] or [(B)(2)] . . . shall be submitted as an APA exhibit at the hearing unless
withdrawn with the consent of the other party." S.C. Code Ann. Regs. 67-612(D)
(2012). Further, "[g]reat liberality is to be exercised in allowing the introduction of
evidence in workers' compensation proceedings." Trotter v. Trane Coil Facility, 384
S.C. 109, 116, 681 S.E.2d 36, 40 (Ct. App. 2009), rev'd on other grounds, 393 S.C.
637, 714 S.E.2d 289 (2011). On the other hand, "[a]dministrative agencies are
required to meet minimum standards of due process." Smith v. S.C. Dep't of Mental
Health, 329 S.C. 485, 500, 494 S.E.2d 630, 638 (Ct. App. 1997) (citing S.C. Const.
art. 1, § 3).

Tedder's refusal to submit to an evaluation by Respondents' vocational expert
would have placed Respondents at an unfair disadvantage had the single
commissioner or the Appellate Panel considered and given any weight to Tedder's
vocational report, thus depriving Respondents of due process. See id. ("In cases
where important decisions turn on questions of fact, due process at least requires an
opportunity to present favorable witnesses."). Further, the single commissioner's
and the Appellate Panel's refusal to consider Tedder's vocational report was fair to
Tedder because she persisted in her refusal to submit to an evaluation by
Respondents' expert even after the single commissioner warned her that if she chose
not to submit to the evaluation, the single commissioner would not consider Tedder's
own vocational report.

Based on the foregoing, we affirm the exclusion of Tedder's vocational report
from consideration in determining permanent disability benefits.

II. Functional Capacity Report

Tedder asserts the Appellate Panel erred by adopting the single
commissioner's finding that the conclusion in Tedder's functional capacity
evaluation (FCE) report was invalid. Tedder argues that this finding constituted the
single commissioner's own personal interpretation of test results, which this court
condemned in Burnette v. City of Greenville, 401 S.C. 417, 428, 737 S.E.2d 200,
206 (Ct. App. 2012).

In Burnette, the single commissioner, who also conducted the initial hearing
in the present case, found that an MRI "showed 'only a "minimal" protrusion with
no nerve root displacement or impingement, and comparatively, no greater
pathology of any significance (if any) than'" an MRI conducted four years
previously. 401 S.C. at 428, 737 S.E.2d at 206. This court concluded the single
commissioner's finding was unsupported by substantial evidence and was
"[p]articularly disturbing." Id. The court stated, "Because no evidence indicates this
opinion originated from a medical provider, yet it appears in the single
commissioner's order, we are forced to conclude it is the medical opinion of the
single commissioner, adopted by the Commission." Id.
Here, the FCE was performed by a non-treating physical therapist, Tracy Hill.
After performing the FCE, Hill concluded that Tedder could "meet the demands of
limited sedentary to limited light work" and listed several work restrictions. Hill
also noted the limitations of the FCE itself. For example, Hill stated the results of
the handgrip test indicated "submaximal effort" and "[t]readmill testing was
attempted but not completed."

On the other hand, Hill noted that she conducted several tests to determine
whether Tedder was magnifying or exaggerating her symptoms (identified as "the
Waddell Signs") and the results on all of them were negative. The results of several
other tests indicated that Tedder would perform part of the assigned task but would
request termination of the test when she felt increased pain. However, she was able
to complete the "Dynamic Reaching" test despite her complaint of increased left
knee pain. Further, Hill noted the results of the Lumber Range of Motion testing
were "AMA Valid."

In her order, the single commissioner addressed the FCE in the following
manner:

[Tedder] obtained her own FCE from Tracy Hill, the
conclusion of which is not persuasive[] and which is in
fact invalid: even Hill notes that (a) [Tedder's] handgrip
testing did not result in a bell-shaped curve (which is
particularly compelling since this is a knee and back case),
indicating sub-maximal effort; and (b) [Tedder]
repeatedly self-limited throughout/actually terminated
testing . . . .

(single commissioner's emphasis). The Appellate Panel adopted this language in its
order. Because there was no expert evidence supporting the finding that the FCE
report's conclusion was invalid, this precise language was inappropriate. Cf.
Burnette, 401 S.C. at 428, 737 S.E.2d at 206 (holding that this same commissioner's
interpretation of an MRI, which was adopted by the Appellate Panel, was
"unsupported by substantial evidence in the record" because "no evidence
indicate[d] this opinion originated from a medical provider").

Nonetheless, as "the ultimate fact finder," the Appellate Panel is entitled to
weigh the evidence as it sees fit. See Shealy v. Aiken Cty., 341 S.C. 448, 455, 535
S.E.2d 438, 442 (2000) (holding the Appellate Panel "is the ultimate fact finder,"
and "[t]he final determination of witness credibility and the weight to be accorded
evidence is reserved to the [Appellate Panel]"); id. ("It is not the task of this [c]ourt
to weigh the evidence as found by the [Appellate Panel]."). Aside from
characterizing the FCE report's conclusion as invalid, the Appellate Panel found the
report's conclusion unpersuasive, which was within their authority, and the panel
members could have attributed little or no weight to the report in favor of the
evidence generated by Tedder's treating physicians. Cf. Burnette, 401 S.C. at 427,
737 S.E.2d at 206 ("Although medical evidence 'is entitled to great respect,' the
Commission is not bound by the opinions of medical experts and may disregard
medical evidence in favor of other competent evidence in the record."). Therefore,
the inappropriate characterization of the FCE report's conclusion as invalid is not
reversible. Judy v. Judy, 384 S.C. 634, 646, 682 S.E.2d 836, 842 (Ct. App. 2009)
("Generally, appellate courts will not set aside judgments due to insubstantial errors
not affecting the result.").

III. Work Restrictions

Tedder contends the Appellate Panel erred by ignoring her work restrictions
and her physical therapist's records. Specifically, Tedder argues that (1) Dr.
Elvington's imposition of work restrictions on September 12, 2013, "never changed,"
(2) the FCE report indicated Tedder was unable to walk at a normal pace, and (3)
her records from Lowe's Physical Therapy referenced her "difficulty with left lower
extremity range of motion, stability[,] and ambulation." Tedder complains that the
Appellate Panel's inappropriate focus on her credibility caused the panel members
to ignore all of this evidence.

As to the work restrictions imposed by Dr. Elvington, we will not assume he
intended to attribute these restrictions to Tedder's left knee only by the time this knee
reached maximum medical improvement (MMI). He conducted his initial post-
operative examination of Tedder's left knee on September 12, 2013, and noted that
she was scheduled for physical therapy at Lowe's two times a week for four weeks.
He imposed work restrictions of no lifting or carrying over 10 pounds, no prolonged
standing or walking, no climbing, stooping, or crawling. He imposed the same work
restrictions at her October 24 visit, noting her left knee was "doing well," its range
of motion was improving, and she would continue with her physical therapy twice a
week for four more weeks. He also went over with her the MRI results for her right
knee and noted a medial meniscus tear, recommending surgery.

During her December 5, 2013 visit, Dr. Elvington noted Tedder complained
of diffuse left knee pain but she had a good range of motion and good strength. He
also noted Tedder's right knee "continue[d] to be painful" and recommended "right
knee arthroscopy with partial medial meniscectomy" upon receiving workers'
compensation approval.1 Dr. Elvington instructed Tedder to continue with the same
work restrictions. On August 26, 2014, Dr. Elvington prepared a brief addendum to
his December 5 notes stating that Tedder's left knee had reached MMI but omitting
any reference to work restrictions.

Respondents argue the work restrictions imposed at the December 5 visit were
attributable to Tedder's right knee only. We agree—by December 5, Tedder's left
knee had improved and Dr. Elvington was recommending surgery for her right knee.
Therefore, to the extent Dr. Elvington's August 26 addendum to his December 5
notes could be interpreted as continuing the same work restrictions, those restrictions
were reasonably attributable to Tedder's right knee problems.

As to certain findings in the FCE report, the Appellate Panel was free to
discount their weight or even disregard them because there was other competent
evidence of Tedder's abilities at MMI, namely, the records of Dr. Elvington and Dr.
Edwards. Cf. Burnette, 401 S.C. at 427, 737 S.E.2d at 206 ("Although medical
evidence 'is entitled to great respect,' the Commission is not bound by the opinions
of medical experts and may disregard medical evidence in favor of other competent
evidence in the record."); Holcombe v. Dan River Mills, 286 S.C. 223, 225, 333
S.E.2d 338, 340 (Ct. App. 1985) ("The Commission in workers' compensation cases
sits as a jury does. It is elementary that a jury may believe part or all of a witness's
testimony . . . ."). Further, the Appellate Panel "is the ultimate fact finder," and
"[t]he final determination of witness credibility and the weight to be accorded
evidence is reserved to the" Appellate Panel. Shealy, 341 S.C. at 455, 535 S.E.2d at
442.

As to the records from Lowe's Therapy, which Tedder argues referenced her
"difficulty with left lower extremity range of motion, stability[,] and ambulation,"
these records correspond to visits occurring from May 13, 2013, through May 12,
2014, several months to over a year prior to her left knee reaching MMI on August
26, 2014. Thus, their probative value as to Tedder's abilities at MMI is limited.
Further, in Lowe's June 20, 2014 discharge summary, Tedder's therapist, Antonio
Franks, noted that Tedder "had [a] family emergency that prevented her from
continuing therapy and [was] unable to" return to therapy before her therapy
prescription would expire. Franks also noted, "Goals have not been met." While we
are sympathetic to Tedder's family emergency, Franks' findings on her abilities at a

1
At his subsequent deposition, however, Dr. Elvington admitted he could not say
that the meniscus tear in Tedder's right knee was related to her March 29, 2013 fall.
point before she completed the prescribed amount of therapy have limited probative
value as to the permanency of her impairment. Nonetheless, Dr. Elvington's August
26, 2014 impairment rating for Tedder's left knee explicitly took into account the
range of motion documented by Franks in his June 20, 2014 discharge summary.
Therefore, Dr. Elvington's impairment rating for Tedder's left knee, which the
Appellate Panel found "compelling," incorporated the most pertinent information
from Lowe's Therapy.

Based on the foregoing, the Appellate Panel did not ignore the records from
Lowe's Therapy or misinterpret any work restrictions imposed by Dr. Elvington.
Further, it was within the Appellate Panel's authority to discount or disregard any
part of the FCE report. In sum, the Appellate Panel's findings were supported by
substantial evidence and should be affirmed. See Clemmons v. Lowe's Home Ctrs.,
Inc.-Harbison, 420 S.C. 282, 287, 803 S.E.2d 268, 270 (2017) (holding that an
administrative agency's findings are presumed correct but "may be set aside if they
are unsupported by substantial evidence"); id. ("'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 that the administrative agency reached or must have reached
in order to justify its action." (quoting Adams v. Texfi Indus., 341 S.C. 401, 404, 535
S.E.2d 124, 125 (2000)).

IV. Deductions from Compensation

Tedder maintains the Appellate Panel erred by awarding Respondents over a
year of credit for temporary benefits paid to her because Respondents are barred
from seeking this credit under the doctrines of laches and waiver. Specifically,
Tedder argues Respondents waived their right to a stop-payment hearing and their
right to receive credit for overpayments "by voluntarily seeking to continue the
hearing on five . . . occasions over the course of a year, delaying the determination
of permanency." Tedder continues, "[Respondents] cannot, in equity, claim
reimbursement for the payments that resulted from that delay." We disagree.

"Laches is the neglect for an unreasonable and unexplained amount of time,
under circumstances permitting diligence, to do what in law should have been done."
Mid-State Tr., II v. Wright, 323 S.C. 303, 307, 474 S.E.2d 421, 423 (1996). Further,
"[w]aiver is a voluntary and intentional abandonment or relinquishment of a known
right." Eason v. Eason, 384 S.C. 473, 480, 682 S.E.2d 804, 807 (2009) (quoting
Parker v. Parker, 313 S.C. 482, 487, 443 S.E.2d 388, 391 (1994)). "Stated
differently, waiver requires a party to have known of a right and known he was
abandoning that right." Id.

Here, it is reasonable for Respondents to deduct the amount paid through the
first rescheduled hearing date, May 5, 2015, to accommodate the Commission's
mediation requirement for claims for permanent and total disability. Respondents
assert that Tedder did not notify them before she filed her pre-hearing brief that she
would claim entitlement to total permanent disability benefits, and Tedder does not
dispute this assertion. Therefore, it was not Respondents' fault that the first hearing
date had to be rescheduled to accommodate the mediation requirement. Moreover,
Tedder chose to consent to five of Respondents' continuance requests made after an
unsuccessful mediation.2 Therefore, it is fair to allow Respondents credit for
temporary total payments made during this time.

Under these circumstances, the delay in the hearing's occurrence may not be
attributed to any neglect on the part of Respondents for an unreasonable or
unexplained amount of time. See Mid-State Tr., II, 323 S.C. at 307, 474 S.E.2d at
423 (defining laches); cf. Sanders v. MeadWestvaco Corp., 371 S.C. 284, 295, 638
S.E.2d 66, 72 (Ct. App. 2006) ("[T]he delay in having a timely hearing falls squarely
on both parties. Thus, we find no substantial evidence supporting the Appellate
Panel's decision to overpay benefits to [the claimant]."). Further, Respondents did
not knowingly abandon their right to a stop-payment hearing or to credit for
overpayments. See Eason, 384 S.C. at 480, 682 S.E.2d at 807 (defining waiver).

Tedder asserts it is the position of Respondents that she owes Carrier
$4,103.71. Tedder also asserts that section 42-9-210 of the South Carolina Code
provides only for deductions from the amount paid as compensation and "does not
provide for direct reimbursement by the Claimant to the employer."3 On the other
hand, Respondents argue that Tedder "continued to draw Temporary Total Disability
knowing full well that she could be ordered to repay any overpayments should the
Panel rule against her."

2
The August 20, 2015 hearing took place after Tedder refused to consent to
Respondents' sixth continuance request.
3
Section 42-9-210 states, in pertinent part, "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."
First, we question whether this precise argument is preserved as there is
nothing in the record showing that Tedder raised it before the single commissioner
or the Appellate Panel. See Stone v. Roadway Express, 367 S.C. 575, 582, 627
S.E.2d 695, 698 (2006) (holding that only those issues raised to the Workers'
Compensation Commission "are cognizable on appeal"). Second, Tedder cites no
authority for this argument, which consists of two conclusory sentences. Therefore,
her argument is deemed abandoned. See Ellie, Inc. v. Miccichi, 358 S.C. 78, 99, 594
S.E.2d 485, 496 (Ct. App. 2004) (finding the appellants abandoned an issue on
appeal by "fail[ing] to cite any supporting authority for [their] position" and
providing "merely conclusory statements" for their arguments).

In any event, the lack of an express provision in section 42-9-210 for a
claimant's reimbursement to an employer does not preclude the Appellate Panel from
ordering a claimant to repay temporary total benefits should the amount of the
overpayments exceed the amount the employer is ordered to pay to a claimant in
permanent disability benefits. See James v. Anne's Inc., 390 S.C. 188, 200–01, 701
S.E.2d 730, 736 (2010) ("Section 42–3–180 of the South Carolina Code confers a
general grant of authority on the Commission to address all issues arising under the
Workers' Compensation Act that are not otherwise provided for under South
Carolina law."); cf. id. at 198–202, 701 S.E.2d at 735–37 (concluding there was
nothing in the Workers' Compensation Act that prohibited, "either expressly or
impliedly," language in an order allocating a lump sum award over a claimant's life
expectancy, and thus, such language was within the Commission's authority).

Finally, there is nothing in the Appellate Panel's order expressly requiring
Tedder to reimburse Carrier. Rather, the order allows Respondents to deduct their
payments going back to September 8, 2014, from whatever they owe Tedder
pursuant to her permanent partial disability awards.

Based on the foregoing, we affirm the Appellate Panel's ruling to allow
Respondents credit for payments made from September 8, 2014, the date the
Commission received the Form 21 request to stop temporary total payments.

AFFIRMED.

HUFF, GEATHERS, and McDONALD, JJ., concur.