Samuel Paulino v. Diversified Coatings, Inc.

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

Samuel Paulino, Claimant, Respondent,

v.

Diversified Coatings, Inc., Employer, and Amguard Ins.
Co., Carrier, Appellants.

Appellate Case No. 2018-001964

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2022-UP-096
Heard November 3, 2021 – Filed March 9, 2022

REVERSED AND REMANDED

George D. Gallagher, of Speed, Seta, Martin, Trivett &
Stubley, LLC, of Columbia; and Kevin Desmond
Maroney, of Rogers Lewis Jackson Mann & Quinn, LLC,
of Columbia, both for Appellants.

Stephen N. Garcia, of Garcia Law Firm, LLC, of
Greenville, for Respondent.

PER CURIAM: In this workers' compensation case, Diversified Coatings, Inc.
(Employer) argues the South Carolina Workers' Compensation Commission (the
Commission) erred in affirming the single commissioner's order awarding Samuel
Paulino (Claimant) permanent and total disability under section 42-9-30(21) of the
South Carolina Code (2015) for a work-related back injury. We reverse and
remand.

We find the Commission erred in affirming the single commissioner's award to
Claimant of permanent and total disability under the scheduled-member statute.
See Bass v. Isochem, 365 S.C. 454, 467, 617 S.E.2d 369, 376 (Ct. App. 2005)
("The South Carolina Administrative Procedures Act (APA) establishes the
standard for judicial review of decisions of the Workers' Compensation
Commission."); S.C. Code Ann. § 1-23-380(5)(d) (Supp. 2021) ("[An appellate
court] may reverse . . . [the Appellate Panel's] decision if substantial rights of the
appellant have been prejudiced because the administrative findings, inferences,
conclusions, or decisions are . . . affected by [an] error of law . . . ."). In pertinent
part, the applicable subsection of the scheduled-member statute provides that a
claimant is entitled to sixty-six and two-thirds percent of the average weekly wages
(AWW) for three hundred weeks for a loss of use of the back that is forty-nine
percent or less. § 42-9-30(21). Subsection twenty-one further states that claimants
who suffer a loss of the use of the back that is fifty percent or greater are entitled to
a rebuttable presumption of permanent and total disability and are entitled to
sixty-six and two-thirds percent of the AWW for five hundred weeks. Id. The
scheduled-member statute differs from general disability claims under section
42-9-10 of the South Carolina Code (2015) because loss of earning capacity is not
necessary to prove disability; weekly compensation "is based solely on the
character of the injury and not upon the earnings or earning capacity of the injured
employee." G.E. Moore Co. v. Walker, 232 S.C. 320, 325, 102 S.E.2d 106, 108
(1958) (emphasis added); see also Wigfall v. Tidelands Utils., Inc., 354 S.C. 100,
104, 580 S.E.2d 100, 102 (2003) ("[T]he medical model[] provides awards for
disability based upon degrees of medical impairment to specified body parts.").

Here, the Commission erred in affirming the single commissioner's determination
that Claimant's back is impaired greater than fifty percent because there is no
medical evidence in the record that supported the single commissioner's findings.
See Clemmons v. Lowe's Home Ctrs., Inc.-Harbison, 420 S.C. 282, 288, 803
S.E.2d 268, 271 (2017) (stating that a claimant's impairment is a question of fact
for the Commission, but "if all the evidence points to one conclusion or the
Commission's findings 'are based on surmise, speculation or conjecture, then the
issue becomes one of law for the court'" (quoting Polk v. E.I. duPont de Nemours
Co., 250 S.C. 468, 475, 158 S.E.2d 765, 768 (1968))). Of particular significance is
the single commissioner's finding that "Claimant's impairment ratings are very low
based on the poor surgical result." To the contrary, Dr. Math gave the only
medical opinion regarding Claimant's impairment rating for his back and assigned
a lower back impairment rating of twelve percent. Claimant's physical therapist
opined that he could perform medium work duties that involved flexing and
rotating his lumbar spine. Further, Dr. McHenry, Claimant's treating physician and
surgeon, reported that Claimant's spine surgery was a success and the disc
herniation and L3-4 extrusion were no longer present. Despite the surgery being a
success, Claimant continued to complain of leg pain and Dr. McHenry noted that
Claimant had persistent degenerative changes to his lumbar spine; however, Dr.
McHenry also stated a subsequent MRI showed no impingement on Claimant's
nerve that could cause leg pain. Although the independent orthopedic surgeon that
evaluated Claimant, Dr. Scott, opined that Claimant's functional capacity
evaluation results indicated he could not sustain workplace activities, Dr. Scott did
not provide an impairment rating or offer any alternative level of activities that
Claimant could perform—he merely disagreed with the results and stated he was
willing to reevaluate Claimant. Because no evidence in the record indicates a
"poor surgical result" as found by the single commissioner, we find the
Commission erred in adopting this medical opinion of the single commissioner.
See Burnette v. City of Greenville, 401 S.C. 417, 428–29, 737 S.E.2d 200, 206–07
(Ct. App. 2012) (finding when no evidence indicates a medical opinion or finding
of fact of a single commissioner originated from a medical provider, such an
opinion or finding is not supported by substantial evidence).

Further, because Claimant failed to rebut Dr. Math's twelve-percent impairment
rating to his back with medical evidence, we find the Commission's findings of fact
adopted from the single commissioner's order are inconclusive. Cf. Mullinax v.
Winn-Dixie Stores, Inc., 318 S.C. 431, 435, 458 S.E.2d 76, 78 (Ct. App. 1995)
("Where the medical evidence conflicts, the findings of fact of the Commission are
conclusive."). "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." Burnette,
401 S.C. at 427, 737 S.E.2d at 206 (quoting Potter v. Spartanburg Sch. Dist. 7, 395
S.C. 17, 23, 716 S.E.2d 123, 126 (Ct. App. 2011)); see also Linen v. Rucson Const.
Co., 286 S.C. 67, 69–70, 332 S.E.2d 211, 212 (1985) (upholding the Commission's
award of fifty-percent impairment, despite medical evidence to the contrary,
because the claimant testified exclusively to the pain associated with his injury and
the burden it placed on his daily activities, and estimated that he suffered a
seventy-five percent impairment); Fields v. Owens Corning Fiberglas, 301 S.C.
554, 556, 393 S.E.2d 172, 173 (1990) ("An award under the scheduled loss
statute . . . is premised upon the threshold requirement that the claimant prove a
loss, or loss of use of, a specific 'member, organ, or part of the body.'" (quoting
S.C. Code Ann. § 42-9-30(22) (2015))); Walker, 232 S.C. at 325, 102 S.E.2d at
108 (stating that compensation under the scheduled-member statute "is based
solely on the character of the injury and not upon the earnings or earning capacity
of the injured employee"). "However, '[w]hile a finding of fact of the
[C]ommission will normally be upheld, such a finding may not be based upon
surmise, conjecture, or speculation, but must be founded on evidence of sufficient
substance to afford a reasonable basis for it.'" Burnette, 401 S.C. at 427–28, 737
S.E.2d at 206 (alterations in original) (quoting Edwards v. Pettit Constr. Co., 273
S.C. 576, 579, 257 S.E.2d 754, 755 (1979)); see also Grayson v. Carter Rhoad
Furniture, 317 S.C. 306, 309–10, 454 S.E.2d 320, 322 (1995) (affirming reversal
of Commission's decision, which was supported by no evidence in the record). In
this case, Claimant was the only lay witness to testify, and he only stated that his
injury prevented him from driving, that he could not complete work duties for
Employer at the same level he did before his injury, and that the functional
capacity evaluation was physically less demanding than his job for Employer.
Claimant also testified at length about his inability to find work because of his
inability to speak English and lack of education. However, the character of the
injury is material for determining compensation based on the impairment of a
scheduled-member, not lost earnings or loss in earning capacity. See Walker, 232
S.C. at 325, 102 S.E.2d at 108 (stating that under the scheduled-member statute,
"[t]he period during which the weekly payments are to continue is based solely on
the character of the injury and not upon the earnings or earning capacity of the
[claimant]"); Clemmons, 420 S.C. at 289, 803 S.E.2d at 271 (stating "the issue
under the scheduled-member statute is not impairment as to the whole body, but
rather it is the loss of use of a specific body part"). Because Claimant did not
testify as to the character of his back injury, the specific ways his back injury
prevents him from leading a normal life, the limitations the back injury places on
his physical activities, and because he failed to present evidence of a lower back
impairment rating greater than twelve percent, we find substantial evidence does
not support the Commission's finding as to the scheduled-member. Cf. Sanders,
371 S.C. at 292, 638 S.E.2d at 70–71 (using a claimant's testimony regarding the
character and extent of his back injury and the limitations the specific injury placed
on his daily activities to refute expert medical evidence). Therefore, we find the
Commission erred in affirming the single commissioner's conclusion that Claimant
is permanently and totally disabled. See id. at 289, 638 S.E.2d at 69 (stating
appellate courts may reverse the Commission if its findings or conclusions are
clearly erroneous in light of the substantial evidence).

CONCLUSION
Based on the foregoing, the Commission's order is

REVERSED AND REMANDED.

WILLIAMS, C.J., MCDONALD, J., and LOCKEMY, A.J., concur.