Evans v. Aqua Seal Manufacturing

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

Robert L. Evans, Employee, Appellant,

v.

Aqua Seal Manufacturing & Roofing and Builders
Mutual Insurance Company, Respondents.

Appellate Case No. 2018-000922

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2020-UP-194
Submitted May 1, 2020 – Filed June 24, 2020

AFFIRMED

Charles Edward Johnson, Sr., of Charles E. Johnson,
P.A., of Columbia, for Appellant.

Helen F. Hiser, of McAngus Goudelock & Courie, LLC,
of Mount Pleasant, for Respondents.

PER CURIAM: Robert Evans, an employee at Aqua Seal, filed a claim against
Aqua Seal Manufacturing and Roofing and Builder Mutual Insurance Company
(collectively, Aqua Seal) arguing he suffered a heat-related injury and aggravation
of a pre-existing condition while working on the roof of a building when the
temperature exceeded 100 degrees Fahrenheit. He appeals the Appellate Panel of
the Workers' Compensation Commission's (the Appellate Panel's) order denying
and dismissing his claim with prejudice. On appeal, Evans argues the Appellate
Panel erred because its order was not supported by substantial evidence in the
record.

We hold substantial evidence supports the Appellate Panel's ruling Evans failed to
prove he suffered an injury by accident or an aggravation of a pre-existing
condition and affirm pursuant to Rule 220(b), SCACR. See Transportation Ins.
Co. & Flagstar Corp. v. S.C. Second Injury Fund, 389 S.C. 422, 427, 699 S.E.2d
687, 689-90 (2010) ("[An appellate court] can modify the commission's decision
. . . only 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."); Shealy v. Aiken
Cty., 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000) ("Substantial evidence is not a
mere scintilla of evidence nor evidence viewed from one side, but such evidence,
when the whole record is considered, as would allow reasonable minds to reach the
conclusion the Full Commission reached.").

First, evidence in the record supports the Appellate Panel's finding Evans failed to
prove an injury by accident. See S.C. Code Ann. § 42-1-160 (2015) ("'Injury' and
'personal injury' mean only injury by accident arising out of and in the course of
employment and shall not include a disease in any form, except when it results
naturally and unavoidably from the accident . . . ."); S.C. Second Injury Fund v.
Liberty Mut. Ins. Co., 353 S.C. 117, 126, 576 S.E.2d 199, 204 (Ct. App. 2003)
("The burden lies with the claimant to demonstrate causation by a preponderance
of the evidence."). At the hearing before the single commissioner, the deposition
of Evans's doctor, Dr. Dean Floyd, was presented; Dr. Floyd testified "no discrete
moment can be determined when [Evans] suffered an injury," and Evans "had a
heat-related illness which appear[s] to have resulted from a cauldron of chronic
medical conditions . . . , medications[,] and repeated heat exposure." See Grice v.
Dickerson, Inc., 241 S.C. 225, 230, 127 S.E.2d 722, 725 (1962) ("The rule has
been established in this State that 'when the testimony of medical experts is relied
upon to establish causal connection between an accident and subsequent disability
or death, in order to establish such, the opinion of the experts must be at least that
the disability or death most probably resulted from the accidental injury.'" (quoting
Cross v. Concrete Materials, 236 S.C. 440, 442, 114 S.E.2d 828, 829 (1960)
(emphasis added)). Moreover, Evans had experienced debilitating heat-related
episodes prior to the alleged June 3, 2016 incident. Specifically, he missed a week
of work after a hospital visit for heat-related episodes in summer 2015. He sought
medical treatment in February 2016 to prevent future heat-related episodes in
anticipation of higher summer temperatures. Further, on June 3, he took steps to
prevent a heat-related episode by placing ice around his limbs. Therefore, Evans's
June 3 heat-related incident was not accidental because it was not an unlooked for
event, and he could have anticipated it due to his past experiences. See Capers v.
Flautt, 305 S.C. 254, 256, 407 S.E.2d 660, 661 (Ct. App. 1991) ("The word
'accident' has been applied by our courts in the workers' compensation context to
mean an 'unlooked for or untoward event that the injured person did not expect,
design or intentionally cause.'" (quoting Linnen v. Beaufort Cty. Sheriff's Dept.,
305 S.C. 341, 408 S.E.2d 248 (Ct. App. 1991))); Capers, 305 S.C. at 256, 407
S.E.2d at 661-62 (holding there was enough information in the record to support
the conclusion the contact dermatitis experienced by Capers was not accidental
because he had been aware of the situation for several years and had previously left
a job due to the same problem. Thus, the dermatitis outbreak he suffered was not
an unlooked for event Capers did not expect; rather, it was an event he could
anticipate due to his past experiences). Thus, substantial evidence in the record
supports the Appellate Panel's finding Evans failed to prove he suffered an injury
by accident on June 3.

Second, the evidence in the record supports the Appellate Panel's finding Evans did
not suffer a compensable aggravation of a pre-existing condition. See S.C. Code
Ann. § 42-9-35 (2015) (stating when a claimant alleges aggravation of a
pre-existing condition, the claimant "shall establish by a preponderance of the
evidence, including medical evidence, that the subsequent injury aggravated the
pre[-]existing condition . . . ."). Dr. Floyd did not testify Evans suffered an
aggravation of a pre-existing condition, and Evans presented no other evidence the
rhabdomyolysis was pre-existing. Further, Evans knew working in the heat
resulted in significant health issues as evidenced by his hospital visit and missed
week of work in 2015, going home early the two days before June 3 due to
cramping, and packing ice around his limbs to prevent a heat-related episode on
June 3. See Havird v. Columbia YMCA, 308 S.C. 397, 399-400, 418 S.E.2d 329,
330-31 (Ct. App. 1992) (holding the applicant did not prove he suffered a
compensable aggravation of a pre-existing condition because he knew his work
activities would worsen his condition). Therefore, the evidence supports the
Appellate Panel's finding Evans did not prove he suffered a compensable
aggravation of a pre-existing condition. Based on the foregoing, we affirm the
Appellate Panel's order.

AFFIRMED.1

1
We decide this case without oral argument pursuant to Rule 215, SCACR.
HUFF, THOMAS, and MCDONALD, JJ., concur.