Nicholas Thompson v. Blufftown Township Fire District

FTHIS 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

Nicholas B. Thompson, Employee, Appellant,

v.

Bluffton Township Fire District, Employer, and State
Accident Fund, Carrier, Respondents.

Appellate Case No. 2019-000597

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2022-UP-437
Heard September 13, 2022 – Filed December 7, 2022

REVERSED AND REMANDED

David Holt Berry, of Law Ofc. of David H. Berry, PC of
Hilton Head Island, for Appellant.

David Alan Westerlund, Jr., of Willson Jones Carter &
Baxley, P.A., of North Charleston, for Respondent.

PER CURIAM: In this worker's compensation case, the single commissioner and
the appellate panel denied Nicholas Thompson, a thirty-one-year-old firefighter,
compensation for his back injury, which he claimed was the result of repetitive
trauma. Both the single commissioner and the appellate panel found Thompson did
not present sufficient evidence of a repetitive trauma injury under section 42-1-172
of the South Carolina Code (2015). Alternatively, both the single commissioner and
the appellate panel found that, even if Thompson's activities as a firefighter were
repetitive and caused his injury, Thompson failed to provide his employer, the
Bluffton Township Fire District (the Township), with timely notice of a repetitive
trauma injury and he was therefore barred from compensation. We reverse and
remand to the commission for a calculation of benefits.

I. Facts
Thompson began working as a full-time firefighter at the Township in 2013. In
January 2017, Thompson reported to his Battalion Chief that his back pain was
affecting his ability to do his job. Thompson was directed to discuss medical leave
options with the Township's personnel officer, Captain Reid, and to see Dr. Cramer,
a pain management physician. Thompson went to see Dr. Cramer on February 10,
2017 and underwent an MRI, which revealed he had a bulging disc, disc
degeneration, and nerve impingement in his lower back. Dr. Cramer prescribed a
course of epidural steroid injections for pain management and referred Thompson to
a spine surgeon, Dr. Lindley at the Neurological Institute of Savannah. Dr. Cramer
also wrote Thompson a work note indicating he was restricted to "light/sedentary
duty only." The next day, Thompson gave his Chief the images from his MRI scan,
and two days later, he was "pulled off the line" due to the severity of his back injury.
On February 22, 2017, Thompson informed Captain Reid that he wished to file a
worker's compensation claim.
On March 30, 2017, Thompson filed a Form 50, claiming he injured his back in June
of 2016 when picking up a four-hundred-pound woman. On June 30, 2017,
Thompson filed an amended Form 50 claiming both injury by accident and a
repetitive trauma injury, stating: "Claimant was injured lifting an approximately 400
lb. patient; twisting/lifting during Belfair Fire; Cutting/moving trees after Hurricane
Matthew." The Township denied the claim, and a hearing was held in front of the
single commissioner.

At the hearing, Thompson described his work as a firefighter, his back pain and
treatment, and the three events listed in his Form 50. According to Thompson's
testimony and notes from his healthcare providers, Thompson began experiencing
back pain in 2014, and, over the next two years, went to see chiropractors, his family
medical physician, and a specialist at Low Country Spine & Sport to discuss his
pain. His symptoms were consistently described as low back pain with
radiculopathy down his right leg. Thompson underwent x-rays, was advised to wear
a back brace, prescribed a regimen of stretching and a medication called Skelarin,
and was diagnosed with a lumbar ligament sprain. During these years, Thompson
did not take any time off work due to back pain and testified his pain "didn't interfere
with my ability to do my job. So I just kept doing what, you know, a firefighter
would have done; would have toughened up, got through it. I did my job."
In 2016, Thompson remembered three specific instances where his back pain was
"significant" at work. In the first instance, during the late spring of 2016, Thompson
responded to a "lift and assist call" to help a four-hundred-pound woman rise from
the floor of her home. A month or two later—on July 9, 2016—Thompson was at
the scene of a large house fire (the Belfair Fire). During the course of the night, he
held and maneuvered a high-pressured hose and replaced air cylinders on the other
firefighter's packs—which involved lifting a 45-pound cylinder, filling it, and
returning it to each firefighter. Finally, while doing cleanup in the aftermath of
Hurricane Matthew in October 2016, Thompson and his colleagues used chainsaws
to cut downed trees into manageable sections and then removed the segments from
the road.
Thompson also described his regular duties as a firefighter. Thompson testified he
worked two or three twenty-four hour shifts per week with two days off between
shifts. At the start of each shift, Thompson was required to complete a safety-check
of equipment, which included lifting ladders weighing seventy-five pounds;
reaching into the back of the truck to pull out a one-hundred-pound power unit;
putting the power unit on the ground, starting it, and putting it back in the truck; and
doing the same to a hydraulic hook that weighed ninety pounds. Also, during his
shifts, Thompson was required to exercise at the fire station, which had a treadmill,
weights, and other professional gym equipment, and he typically worked out for an
hour every shift. Other routine duties included testing fire hydrants and completing
training hours, which involved "dragging a hose full of hundreds of pounds of highly
pressurized water, putting your gear on that weighs 100 pounds and crawling and
climbing and twisting, and using all the heavy equipment . . . the hydraulic tools,
ladders, everything."

During testimony at Thompson's worker's compensation hearing, Captain Reid
admitted the job of a firefighter is "a very physical job, very demanding, very tough
. . . you don't see many 50[-]year[-]old men on fire engines. It's a physically
demanding job that does take a toll." When Captain Reid was asked whether
firefighters were required to use "hose-lines, nozzles, pumps, hydrants,
extinguishers, ladders, hand tools, extriction tools, air masks," Captain Reid stated,
"Yes ma'am those would be things that we would be expected to at least touch or
train with at least on a weekly basis." When asked whether the job of a firefighter
requires "frequent lifting, carrying, ability to bend, strain, stretch and . . . push, pull,
twist, carry and walk with weight,"1 Captain Reid answered, "Yes ma'am." Captain
Reid testified that, in his opinion, these activities would be done on a "frequent
basis."
Finally, Thompson testified that, as a result of the delay in receiving treatment for
his back injury, his condition had deteriorated. In September 2017 (a month before
his hearing in front of the single commissioner), Thompson woke from sleep with
his legs shaking violently and began vomiting from "excruciating pain." He went to
the emergency room, where he was referred to see a neurosurgeon as soon as
possible. Thompson returned to see Dr. Lindley on September 19, 2017. By that
time, Thompson was unable to use his bowels without medical intervention, and Dr.
Lindley recommended Thompson undergo to a "level two disc replacement surgery"
due to Thompson's worsening condition. When asked why Thompson did not
formally file a report after the incidents involving the heavy woman, the Belfair Fire,
or Hurricane Matthew, Thompson stated, "I didn't know that—that I was required to
file an accident report for feeling pain in my job . . . it's a tough job, you feel pain,
you take some ibuprofen or something and you move on. I didn't know that I was
injured."

In support of his claim of repetitive trauma injury, Thompson submitted a statement
from Dr. Lindley into evidence. In relevant part, the statement stated:
It is my opinion, based upon a reasonable degree of
medical certainty, that there is a direct causal relationship
between Mr. Thompson's repetitive day-to-day work
duties as a firefighter and the [three significant pain
events] with the Bluffton Township Fire Department and
his lower back injury with radiation into his legs.
Furthermore, it is my opinion, based upon a reasonable
degree of medical certainty, that Mr. Thompson's work
duties most probably caused and/or aggravated his lower
back injury with radiation into his legs. It is my opinion,
based upon a reasonable degree of medical certainty, Mr.
Thompson has received and continues to need treatment,
including L4-5 disc replacement surgery, that will tend to
lessen his period of disability.

Before ruling on the compensability of Thompson's injury, the single commissioner

1
This wording is directly from the job description posted for Firefighter II,
Thompson's official job description, which was also admitted into evidence.
held the record open to allow for the deposition of Dr. Lindley. During the
deposition, Dr. Lindley re-affirmed his opinion from his written statement multiple
times. However, he did equivocate in his opinion when confronted by the Township
with the fact that he had not independently corroborated or investigated Thompson’s
patient history—but instead had relied on Thompson's description of his work
activities and onset of pain in forming his medical opinion.

The single commissioner denied Thompson's claim. Significantly, the single
commissioner found Thompson failed to timely report injuries by accident resulting
from any of the three incidents in his Form 50 (the lifting of the four-hundred-pound
woman, the Belfair Fire, or Hurricane Matthew), and therefore, he was barred from
compensation under section 42-15-20(A) of the South Carolina Code (2015). Next,
the single commissioner found Thompson failed to prove both that his job duties as
a fire-fighter were "repetitive in nature" and that the cause of his injury was repetitive
trauma. In so finding, the single commissioner concluded Dr. Lindley's medical
opinion should be disregarded as "speculative" because Dr. Lindley could not point
to one primary reason for Thompson's injury but rather testified Thompson's injury
was caused by multiple factors, including: repetitive heavy-lifting, the three
significant pain events listed in Thompson's Form 50, and the demanding physical
nature of the job. Finally, the single commissioner found that, even if Thompson
had sustained a repetitive trauma injury at work, he failed to timely report it under
section 42-15-20(C) of the South Carolina Code (2015), and was therefore barred
from recovery. Thompson appealed to the appellate panel, which affirmed and
adopted the single commissioner's order in full.

II. Law/Analysis

We must affirm the factual findings of the worker's compensation commission if
they are supported by substantial evidence. S.C. Code Ann. § 1-23-380(5) (2005 &
Supp. 2022); Lark v. Bi-Lo, Inc., 276 S.C. 130, 132–33, 276 S.E.2d 304, 305 (1981).
However, "[t]he 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 affected by an error of law or are "clearly erroneous in
view of the reliable, probative and substantial evidence on the whole record[.]" S.C.
Code Ann. § 1-23-380(5).
1. Did the commission err in finding Thompson failed to establish he suffered a
compensable repetitive trauma injury?
"Workers' compensation laws were intended by the Legislature to relieve workers of
the uncertainties of a trial for damages by providing sure, swift recovery for
workplace injuries regardless of fault." Ex parte S.C. Prop. & Cas. Ins. Guar. Ass'n,
411 S.C. 501, 505, 768 S.E.2d 670, 672–73 (Ct. App. 2015) (quoting Peay v. U.S.
Silica Co., 313 S.C. 91, 94, 437 S.E.2d 64, 65 (1993)). "The general policy in South
Carolina is to construe the Workers' Compensation Act in favor of coverage, and
any reasonable doubts as to construction should be resolved in favor of the claimant."
Pierre v. Seaside Farms, Inc., 386 S.C. 534, 541, 689 S.E.2d 615, 618 (2010)
(quoting Hall v. Desert Aire, Inc., 376 S.C. 338, 350, 656 S.E.2d 753, 759 (Ct. App.
2007); see also Pelfrey v. Oconee Cnty., 207 S.C. 433, 440, 36 S.E.2d 297, 300
(1945) ("Liberal construction of this beneficent, remedial law, to which this Court is
committed, requires for its fruition liberal application to doubtful facts. Claims
should not be denied upon technicalities.").

Section 42-1-172 of the South Carolina Code is the exclusive method for
determining the compensability of repetitive trauma injuries. Michau v. Georgetown
Cnty. ex rel. S.C. Ctys. Workers Comp. Tr., 396 S.C. 589, 594, 723 S.E.2d 805, 807
(2012). The relevant part of section 42-1-172 provides:
(A) "Repetitive trauma injury" means an injury which is
gradual in onset and caused by the cumulative effects
of repetitive traumatic events. Compensability of a
repetitive trauma injury must be determined only
under the provisions of this statute.

(B) An injury is not considered a compensable repetitive
trauma injury unless a commissioner makes a specific
finding of fact by a preponderance of the evidence of
a causal connection that is established by medical
evidence between the repetitive activities that
occurred while the employee was engaged in the
regular duties of his employment and the injury.

(C) As used in this section, "medical evidence" means
expert opinion or testimony stated to a reasonable
degree of medical certainty, documents, records, or
other material that is offered by a licensed and
qualified medical physician.

(D) A "repetitive trauma injury" is considered to arise out
of employment only if it is established by medical
evidence that there is a direct causal relationship
between the condition under which the work is
performed and the injury.

A medical expert may rely on a patient's description of his or her job activities in
determining whether the activities caused the repetitive trauma injury, and a medical
expert does need to read an ergonomics report or independently investigate and
corroborate a patient's history in forming a competent opinion of the cause of a
repetitive trauma injury. See Brooks v. Benore Logistics Sys., Inc., 437 S.C. 376,
384, 879 S.E.2d 1, 5 (Ct. App. 2022), cert. granted (Sept. 8, 2022) ("Nothing in § 42-
1-172 prevents a medical doctor from using his expert evaluation of patient history
in forming his professional opinion, and we expect the medical community would
be surprised to learn the [commission] believes this time-honored practice always
entails an unwarranted assumption."). Finally, "[w]hile the [c]ommission may
refuse to accept even uncontradicted medical evidence, it must base its refusal on a
valid reason supported by competent evidence in the record. Otherwise, the refusal
is arbitrary and capricious and warrants reversal." Id.
Two errors of law affected the commission's findings that Thompson submitted no
evidence proving his duties as a firefighter are repetitive in nature and that
Thompson did not prove, by the greater weight of the evidence, that his job duties
as a firefighter caused his repetitive trauma injury. The first error was the
commission's erroneously narrow interpretation of the word "repetitive" in section
42-1-172. The second error was the commission's improper disregard of Dr.
Lindley's expert medical opinion.

It appears, in Thompson's case, that the commission equated activities that are
"repetitive" with activities that must be performed on a near constant basis to find
that, because Thompson did not lift the same heavy object in the same way
throughout each shift, he was unable to prove the admittedly "routine" and
"frequent" lifting of heavy objects during his shifts as a firefighter were "repetitive"
as required by section 42-1-172.
Nothing in section 42-1-172 demands such a narrow construction of the word
"repetitive," and we find this narrow construction goes against the policy of the
Worker's Compensation Act, the plain meaning of the word "repetitive," and South
Carolina precedent. See Pierre, 386 S.C. at 541, 689 S.E.2d at 618 ("The general
policy in South Carolina is to construe the Workers' Compensation Act in favor of
coverage, and any reasonable doubts as to construction should be resolved in favor
of the claimant." (quoting Hall, 376 S.C. at 350, 656 S.E.2d at 759); Stone v.
Roadway Express, 367 S.C. 575, 585, 627 S.E.2d 695, 700 (2006) ("In construing a
workers' compensation statute, 'the words must be given their plain and ordinary
meaning without resort to subtle or forced construction to limit or expand the
statute's operation.'" (quoting Adkins v. Comcar Industries, Inc., 323 S.C. 409, 475
S.E.2d 762 (1996)); Rhame v. Charleston Cnty. Sch. Dist., 415 S.C. 162, 164, 781
S.E.2d 151, 153 (Ct. App. 2015) (affirming a finding that an HVAC technician
experienced a repetitive trauma injury to his lower back when "his job frequently
required him to lift heating and air conditioning equipment" (emphasis added));
White v. Med. Univ. of S.C., 355 S.C. 560, 562, 586 S.E.2d 157, 158 (Ct. App. 2003)
(finding an operating room technician/nursing assistant experienced repetitive
trauma injury to his lower back when his job included "removing trash bins from the
operating room, moving equipment, lifting patients, and transporting patients to and
from other rooms").

We find the record is replete with evidence that Thompson's duties as a firefighter
included lifting heavy objects on a regular basis. Thompson's testimony describing
his duties during each shift was corroborated by both the Township's official
description of Thompson's job and by Captain Reid's own description of the
"routine" duties Thompson was required to perform. These duties included lifting
heavy hoses, ladders, air canisters, and people. There is no dispute Thompson was
required to and did lift heavy equipment on every shift, and his actions in picking up
a four-hundred-pound woman, large segments of fallen trees, and pressurized water-
hoses are examples of times when he was required to lift heavy objects in the course
of the regular duties of employment. 2

2
The Township asserts that, on his Form 50, and throughout his hearing before the
single commissioner, Thompson argued his back injury was caused by both
repetitive trauma and three individual accidents. The Township states "[t]o now
claim the Commission was incorrect to analyze the three work accidents he listed on
his Form 50 as independent episodes of a workplace injury rather than 'mini
accidents' is an attempt to revise the history of the claim." The Township contends
Thompson is barred from recovering under both theories of compensation because
1) he is procedurally barred from recovering under one of the theories and 2) he did
not meet his burden of proving the theory he is barred from recovering under is not
the actual cause of his injury. We find these arguments unconvincing. In South
Carolina, a worker's compensation claimant may proceed under multiple theories of
recovery and will only have to elect a remedy if recovery is proven under both
theories. See Harbin v. Owens-Corning Fiberglas, 316 S.C. 423, 429, 450 S.E.2d
112, 115 (Ct. App. 1994) ("If multiple causes of action are raised on the same set of
facts, the plaintiff may be required to elect his remedy to prevent a double recovery
for a single wrong."). To find Thompson cannot now recover for his repetitive
We also find Thompson presented competent medical evidence "that there is a direct
causal relationship between the condition under which the work is performed and
the injury." § 42-1-172(D). Dr. Lindley was under no misapprehension about the
duties Thompson was required to perform as a firefighter when giving his opinion
about the cause of Thompson's repetitive trauma injury, and it was his expert medical
opinion—recited in both his July 11, 2017 letter and in his sworn deposition
testimony—that to a reasonable degree of medical certainty, Thompson's repeated
activity of picking up heavy objects and people caused Thompson's L4-5 disc
protrusion with radiculopathy, nerve impingement, and bowel and bladder issues.
His expert medical opinion did not change when presented with the official job
description of a firefighter, nor was it "speculative" merely because Dr. Lindley did
not distinguish among the repeated activities performed at Thompson's job, the
physical nature of his job, and the three incidents of significant pain detailed in
Thompson's Form 50 as the cause of Thompson's injury. We find Dr. Lindley's
inability to pinpoint the injury's onset is entirely consistent with a diagnosis of a
repetitive trauma injury, which is defined by statute as an injury that "is gradual in
onset and caused by the cumulative effects of repetitive traumatic events."
§ 42-1-172(A).
Finally, to the extent Dr. Lindley equivocated in his deposition testimony, it was
only when presented by the Township's counsel with the legal artifice that he must
independently investigate and corroborate Thompson's patient history in order to
form a competent opinion. Our court in Brooks specifically found this is "the classic
fallacy known as the appeal to ignorance." Brooks, 437 S.C. at 384, 879 S.E.2d at
5. Here, there was no question Dr. Lindley understood the job duties Thompson was
required to perform, and, throughout questioning, opined these job duties caused
Thompson's back condition to deteriorate to the point where Thompson needed
medical and surgical intervention. The rejection of Dr. Lindley's testimony on the
basis that he could not rely on Thompson's patient history in forming a competent
opinion is error and demonstrates the commission has conflated its role of
independent fact-finder with the role of a medical expert providing an opinion as to
what conditions cause a repetitive trauma injury. See id. ("Nothing in § 42-1-172
prevents a medical doctor from using his expert evaluation of patient history in
forming his professional opinion, and we expect the medical community would be
surprised to learn the [commission] believes this time-honored practice always
entails an unwarranted assumption."); § 42-1-172(B) ("An injury is not considered

trauma injury merely because he chose to proceed under two theories of recovery on
his Form 50 is error.
a compensable repetitive trauma injury unless a commissioner makes a specific
finding of fact by a preponderance of the evidence of a causal connection that is
established by medical evidence between the repetitive activities that occurred while
the employee was engaged in the regular duties of his employment and the injury."
(emphasis added)).
In conclusion, we find the reasons Thompson was denied recovery were warped by
the commission's too narrow definition of the word "repetitive" and the
commission's improper rejection of expert medical testimony. We find the
substantial evidence in the record indicates Thompson is entitled to recovery under
section 42-1-172 for a repetitive trauma injury he incurred as a result of his work as
a firefighter. See § 1-23-380(5) (providing that this court "may reverse or modify
the decision of the worker's compensation commission if substantial rights of the
appellant have been prejudiced because the administrative findings, inferences,
conclusions or decisions are . . . affected by an error of law" or are "clearly erroneous
in view of the reliable, probative and substantial evidence on the whole record").
Therefore, the commission's ruling that Thompson did not prove, by the greater
weight of the evidence, that he sustained a repetitive trauma injury while working as
a firefighter at the Township is reversed.

2. Did the commission err in finding Thompson failed to give proper notice of
his repetitive trauma injury?
We find the commission erred in ruling Thompson is time-barred under section
42-15-20(C) from recovering compensation for his repetitive trauma injury. Section
42-15-20(C) states:

In the case of repetitive trauma, notice must be given by
the employee within ninety days of the date the employee
discovered, or could have discovered by exercising
reasonable diligence, that his condition is compensable,
unless reasonable excuse is made to the satisfaction of the
commission for not giving timely notice, and the
commission is satisfied that the employer has not been
unduly prejudiced thereby.

Back pain is not the same as a back injury when evaluating the date a claimant
reasonably should have known he or she has experienced a repetitive trauma injury.
See Rhame, 415 S.C. at 168, 781 S.E.2d at 154 ("The evidence in the record indicates
Rhame began experiencing back pain in 1994 or 1995, not that he suffered
an injury in 1994 or 1995."). In Rhame, the claimant began to experience back pain
as a result of his job as early as 1994 or 1995, began receiving treatment for that
back pain in 1994 or 1995, and missed days from work on and off from that time
due to ongoing pain in his back. Id. at 167–68, 781 S.E.2d at 154–55. However,
the claimant did not report a repetitive trauma injury to his employer until May of
2009, when, after picking up a "particularly heavy" air-conditioning unit, he
"couldn't even stand up straight," and his doctors told him he could no longer work.
Id. at 167, 781 S.E.2d at 154–55. This court held the commission erred in finding
the claimant did not timely report his repetitive trauma injury, reasoning there was
no evidence in the record indicating the claimant should have known his claim was
compensable until May of 2009. Id. at 169–70, 781 S.E.2d at 155.

The facts here are similar to those in Rhame. We find Thompson, although
experiencing and receiving treatment for back pain from 2014 until 2016, could not
have reasonably known it was a compensable repetitive trauma injury until February
2017, when the pain from his gradual onset injury became so intense that he was
unable to complete daily duties as a firefighter and he sought medical treatment from
Dr. Cramer. Dr. Cramer diagnosed him with a significant injury and told him he
would only be able to complete light duty work. The record is clear Thompson
reported this injury to Captain Reid within days of receiving this news from his
doctor. Accordingly, the substantial evidence in the record does not support the
commission's finding that Thompson did not timely report his injury, and the ruling
that Thompson is time-barred under section 42-15-20(C) from recovering
compensation for his repetitive trauma injury is reversed. See § 1-23-380(5)
(providing that this court "may reverse or modify the decision of the worker's
compensation commission if substantial rights of the appellant have been prejudiced
because the administrative findings, inferences, conclusions or decisions are . . .
affected by an error of law" or are "clearly erroneous in view of the reliable,
probative and substantial evidence on the whole record").
Because we believe the commission's findings and conclusions are not supported by
substantial evidence and are affected by errors of law, we reverse and remand this
case to the commission for calculation of benefits.

REVERSED AND REMANDED.

GEATHERS, MCDONALD, and HILL, JJ., concur.