Doretta Butler-Long v. ITW

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

Doretta Butler-Long, Employee, Claimant, Appellant,

v.

ITW Labels, Employer, and American Zurich Insurance
Company/Zurich North America c/o Broadspire, Carrier,
Respondents.

Appellate Case No. 2017-001535

Appeal From The Workers' Compensation Commission

Opinion No. 2023-UP-291
Heard February 3, 2020 – Filed August 9, 2023

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED

Stephen Benjamin Samuels, of Samuels Law Firm, LLC,
of Columbia, for Appellant.

Jason Wendell Lockhart, of McAngus Goudelock &
Courie, LLC, of Columbia, and Helen F. Hiser, of
McAngus Goudelock & Courie, LLC, of Mount Pleasant,
both for Respondents.
MCDONALD, J.: Doretta Butler-Long (Claimant) appeals the denial of her
workers' compensation claim, arguing the Appellate Panel of the South Carolina
Workers' Compensation Commission (the Appellate Panel) erred in (1) finding she
failed to meet her burden of proving an injury by accident or, alternatively, a
repetitive trauma injury and (2) disregarding her treating physicians' medical
opinions that her injury was work-related when there was no expert medical
opinion to the contrary. We affirm in part, reverse in part, and remand for a
calculation of benefits.

Facts and Procedural History

In September 1999, Claimant began working as a laminator at ITW Labels
(Employer), a printing company providing signs and labels of various sizes. By all
reports, Claimant was a model employee—a December 2011 performance
appraisal notes, "Doretta has proven to be the most valuable Laminator in the
company. She can get out the most product in the shortest amount of time."
Claimant's job included retrieving heavy materials from a warehouse, lifting heavy
boxes containing rolls of printing material to process through a laminating
machine, running the machinery, and inspecting the final product. The size of the
rolls depended on which laminator machine she was running, but the rolls of
adhesive could weigh up to 300 pounds; some required two people to lift them. At
one time, Claimant and the other laminators lifted these rolls by hand, but "they
eventually got a lift."

While working on Wednesday, April 11, 2012, Claimant began experiencing pain
on her right side, but she attempted to continue working the remainder of that
week. When asked at the hearing how she initially was hurt, Claimant explained,
"From lifting the rolls and from the repetitive [sic] of just sending it through the
machine from the rolls. A lot of the rolls [were] heavy, but I had to get my job
done." Within two to three days, however, her fingers "started going numb." That
Friday night, April 13, Claimant went to the emergency room at Providence
Hospital, where she described a throbbing pain in her right shoulder and forearm
that worsened with movement. The emergency room doctors took X-rays of her
right arm, shoulder, and chest; prescribed Percocet; and gave her a sling to wear.

The following Monday, Claimant told her supervisor she was unable to come to
work, but she did not report a work-related injury at that time because she believed
she had a slipped disc in her neck and was suffering from chest pain, which she did
not attribute to her employment. In the months following the onset of her pain,
Claimant saw physicians and specialists who noted Claimant's symptoms were
confusing and abnormal; the doctors provided multiple possible diagnoses—
initially, none were accurate. Unfortunately, the true cause of Claimant's pain—a
rotator cuff injury—went undiagnosed for over two months. And, Claimant's
partial rotator cuff tear was not discovered until her 2014 arthroscopic surgery,
nearly two years after her injury at work.

Prior to any physician diagnosing a rotator cuff problem—much less the partial
tear, Claimant saw several doctors. On April 17, Claimant went to the emergency
room at Palmetto Health Richland, where the physician noted her symptoms were
"[l]ikely secondary to muscle spasm as the patient had tense muscles" and
instructed her to see her primary care physician. Claimant returned to Palmetto
Health Richland on April 23 because the prescribed medication was not decreasing
her pain. A cervical spine X-ray "showed degenerative joint disease as well as
some signs consistent with muscle spasms"; the physician further noted Claimant
would likely need an MRI if her symptoms persisted. One doctor ordered tests to
rule out deep vein thrombosis and rhabdomyolysis.

On April 27, Dr. Mark Shaffer of the Palmetto Health Richland Family Medicine
Center evaluated Claimant, noting her right "trapezius and paraspinal muscles [are]
in marked spasm easily visible." He further observed Claimant held her arm in a
guarded position and her right shoulder had a "markedly reduced" range of motion.
Dr. Shaffer gave Claimant a Lidocaine injection and prescribed naproxen and
Percocet. Dr. Shaffer reported, "Confusing [patient] with unusual exam but
marked pain and [abnormal] findings. At least 2 pathologies present-neck spasm
and some neuropathy affecting the [right] arm-likely brachial plexitis."

When Claimant returned to the Family Medicine Center on May 2, Dr. Simon
Tanksley noted, "The context of the pain occurred not following a fall, not during
sports and not in association with work." He indicated, "Patient asking for me to
sign disability papers and refill Percocet Rx from ER. Very suspicious for
malingering, will get MRI." A May 9 cervical MRI revealed "mild degenerative
disc changes," and the MRI and X-ray of Claimant's right shoulder were
"unremarkable." Dr. Tanksley reexamined Claimant on May 11, 2012; he
prescribed her Percocet, an antidepressant, and naproxen and referred her to a
neurosurgeon due to her bulging cervical disk and arm pain. That same day,
Claimant applied for short-term disability benefits. Dr. Tanksley completed the
accompanying attending physician statement and indicated it was "Unknown"
whether Claimant's injury arose from her employment.
Claimant saw neurosurgeon Raymond Sweet on May 31; Dr. Sweet referred her to
an orthopedic specialist because he did not find her problem to be neurological.
On June 1, Claimant returned to the Family Medicine Center, where Dr. Tanksley
described her appearance as depressed, sad, and tearful and referred her to an
orthopedic surgeon. Orthopedic surgeon Andrew McGown evaluated Claimant's
shoulder on June 11, noting, "1) Right shoulder pain. 2) Right rotator cuff
tendonitis/bursitis. 3) Right questionable early adhesive capsulitis." He further
described the onset of her pain as "Started with chest pain and generated to
shoulder and fingers." 1

Dr. Tanksley's record of a July 30 visit notes,

Has been almost 4 months since start of right shoulder
pain. Seeing sport med, Dr. [McGown] thinks is rotator
cuff tendonitis, patient on second round of PT. I filled
out FMLA paperwork, patient now asking how to get
disability. Advised patient she will need Ortho[pedic]
evaluation, then call Voc[ational] Rehab to start process.
This is the last time I can give her work excuse.

As to the history of Claimant's present illness, Dr. Tanksley amended his prior
opinion to note Claimant's "pain occurred 3 month(s). The context of the pain:
occurred with movement, in association with work, not following a fall, not
associated with cold weather, not associated with damp weather and not during
sports."

After finding no relief through physical therapy, Claimant saw shoulder surgeon
Christopher Mazoue on September 14. In his evaluation, Dr. Mazoue notes, "She,
[I believe], works laminating furniture but cannot recall that her work actually
caused this injury." Dr. Mazoue further stated, "Due to the chronicity of the
symptoms, we will go ahead and get an MR arthrogram of the right shoulder."
After a September 26 follow-up appointment, Dr. Mazoue reported Claimant's MR
arthrogram revealed "some rotator cuff tendinosis, but the rotator cuff is still

1
Dr. Sweet was the first physician to recognize a shoulder pathology. Claimant
testified that after her visits to Dr. Sweet and Dr. McGown, she reported her work
injury to Stacie Dash, a supervisor. She noted, "I told Stacie in the end of July
when I found out for sure what was wrong with me. I told Stacie then what was
wrong with me." Employer did not present evidence contradicting Claimant's
report to Dash.
intact. . . . I think this is a very difficult problem. Ms. Butler certainly appears
depressed. She is exhibiting pain and depression that are certainly out of
proportion from what we see on exam or the MRI." Claimant had another
follow-up appointment with Dr. Mazoue on November 28, during which he
discussed surgery as an option. Unfortunately, Claimant declined to have surgery
at that time; she later explained in her deposition that she could not afford the
surgery and did not have health insurance.

On February 11, 2013, Claimant again visited Dr. Mazoue and reported the
injections he had been administering provided her only one month of relief. Dr.
Mazoue again discussed surgery with Claimant, noting, "At this point due to
failure of nonoperative treatment we will proceed with a right shoulder arthroscopy
with SCD, DCE, possible rotator cuff debridement versus repair and possibly
biceps tenotomy versus tenodesis." Following an August 16, 2013 appointment,
Dr. Mazoue reported, "[Claimant] returns today after cancelling her surgery 5
months ago for her R shoulder. . . . She is not interested in surgery due to financial
reasons. She is here today to discuss other options."

Dr. Mazoue reevaluated Claimant on February 28, 2014, and performed the
diagnostic arthroscopy under general anesthesia in April. The surgery revealed a
partial thickness rotator cuff tear of the supraspinatus tendon. Once the cause of
Claimant's ongoing shoulder/chest/arm pain was discovered, Dr. Mazoue was able
to surgically repair the rotator cuff. At her appointments following the surgery,
Claimant reported persistent pain on May 14, August 13, October 15, November
24, and December 29.

On January 20 or 26, 2015, 2 Dr. Mazoue reviewed Claimant's medical history and
completed a questionnaire at the request of her attorney. In this document, Dr.
Mazoue unequivocally opined Claimant's "right shoulder injury is most likely
related to her activities as [a] laminator." In response to a question about the basis
of his medical opinion, Dr. Mazoue added a handwritten note that his response was
based on a "review of the records with regards to onset of pain and dysfunction and
subsequent medical care."

Claimant filed a second Form 50 in 2016, alleging an April 2012 injury arising
from her employment. Following a hearing, the Single Commissioner found

2
Dr, Mazoue's handwriting is difficult to decipher as to the specific day, but
whether he completed the questionnaire on the 20th or the 26th of January is not
relevant to our analysis.
Claimant failed to meet her burden of proving a compensable injury arising from
her employment either by accident or repetitive trauma. Claimant filed a Form 30
Notice of Appeal, and following a hearing, the Appellate Panel affirmed the Single
Commissioner.

Standard of Review

The Administrative Procedures Act (APA) establishes this court's standard of
review for the Appellate Panel's decisions. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135,
276 S.E.2d 304, 306 (1981). Under the APA, this court may reverse or modify the
Appellate Panel's decision when the substantial rights of the appellant 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." Transp. Ins. Co. & Flagstar Corp. v. S.C. Second Injury Fund, 389 S.C.
422, 427, 699 S.E.2d 687, 689–90 (2010); S.C. Code Ann. §1-23-380(5)(d)–(e)
(Supp. 2022). We must affirm the Appellate Panel's factual findings if they are
supported by substantial evidence not affected by an error of law.

Law and Analysis

While we agree with the Appellate Panel that the record does not support
Claimant's alternative theory of repetitive injury, we disagree with the finding that
Claimant failed to meet her compensability burden under section 42-1-160 of the
South Carolina Code (2015), which addresses injury by accident in the scope of
employment. Claimant persuasively argues that she proved she suffered a
work-related injury on April 11, 2012, and that the Appellate Panel erroneously
disregarded the only expert medical evidence addressing causation: Dr. Mazoue's
medical questionnaire and deposition testimony and Dr. Tanksley's July 30 record
amending his conclusion to note the work connection for Claimant's shoulder pain.
Much like Claimant, it appears Dr. Tanksley only recognized the connection
between Claimant's work and her injury once a rotator cuff problem was
diagnosed.

Despite the lack of any medical opinion challenging Dr. Mazoue's expert finding,
both the Single Commissioner and the Appellate Panel found Claimant's injury was
not compensable, dismissing Dr. Mazoue's opinion because "his conclusion as to
the work nexus does not come while he was treating her." Specifically, the
Appellate Panel concluded:
33. Based on the substantial evidence, including
Claimant's testimony and the medical records of
Claimant, we find that Dr. Mazoue has opined that those
issues are work-related. That being said, Dr. Mazoue's
conclusion as to the work nexus does not come while he
is actively treating the Claimant. It comes sometime later
in a medical questionnaire. (APA p. 111). As such, we
cannot give the opinion the weight we would normally
give such opinion offered contemporaneously to the
alleged date of injury.

Not only is this finding factually inaccurate and, thus, not supported by the
substantial evidence in the record, we find it legally erroneous as well. First, the
not "actively treating" finding is not supported by the substantial evidence in the
record because Dr. Mazoue gave his uncontradicted opinion less than one month
after Claimant's fifth post-surgical appointment. She underwent shoulder
surgery—where the rotator cuff tear was finally discovered—on April 1, 2014.
Following a May post-surgical appointment, Claimant again saw Dr. Mazoue on
August 13, October 15, November 24, and December 29. He completed the
medical questionnaire less than thirty days later, on either January 20 or 26, 2015.
Reviewing this chronology, we find no support in the record for the Appellate
Panel's decision to disregard this uncontradicted opinion on the basis that Dr.
Mazoue's written opinion "does not come while he is actively treating the
Claimant." As both the Single Commissioner and the Appellate Panel properly
recognized, Dr. Mazoue confirmed in his subsequent deposition that his opinion
connecting Claimant's right shoulder injury to her work lifting heavy laminate
sheets was given to a reasonable degree of medical certainty. 3

The Appellate Panel again demonstrated its misunderstanding of the substantial
evidence in the record when it found Dr. Mazoue provided the only evidence of a
work nexus for Claimant's injury. This is factually erroneous because Dr.
Tanksley revised his "Unknown" finding after the rotator cuff pathology was
discovered. Dr. Tanksley was initially unable to recognize the relationship to
Claimant's work until he learned Claimant's continuing pain was, in fact, the result

3
The Appellate Panel's discounting of Dr. Mazoue's questionnaire and deposition
testimony on such a basis is further troubling in light of Claimant's own testimony
that she could not continue to see Dr. Mazoue after her December 29 appointment
because she could not afford to pay her balance with his medical practice.
of a rotator cuff injury—and not simply cervical radiculopathy. Once Dr. Tanksley
learned this, he corrected his initial "Unknown" and "not in association with work"
notations to report "the context of the pain occurred with movement, in association
with work." Again, the Appellate Panel ignored this evidence in the record despite
the absence of any expert medical opinion to the contrary.

The Appellate Panel's problematic rejection of these two medical opinions is
compounded by the fact that Dr. Tanksley and Dr. Mazoue were the only two
physicians who actually followed and treated Claimant. Dr. Tanksley followed
Claimant from May 2 through July 30, 2012; Dr. Mazoue followed her from
September 14, 2012, through December 29, 2014. Instead the Appellate Panel
appears to have placed greater weight on the medical records of physicians who
saw and perhaps evaluated the Claimant once or twice but did not otherwise treat
her, other than to perhaps give her pain medicine. None of these other doctors
addressed the actual cause of Claimant's injury or opined as to whether it was (or
was not) work-related.

Employer's argument that "the medical records don't support" Dr. Mazoue's expert
medical opinion connecting Claimant's injury to her work ultimately fails in light
of a full review of the record. Claimant's medical records demonstrate the nexus of
her injury to her work: the time of the onset of the shoulder/chest/arm pain
connects it to her work, and there is no evidence in the record to support a finding
that such a rotator cuff injury can arise idiopathically. Employer could have
presented its own expert to challenge Dr. Mazoue, or it could have successfully
cross-examined him to demonstrate the error of his conclusions. See, e.g., Clark v.
Philips Elecs./Shakespeare, 433 S.C. 186, 193–94, 857 S.E.2d 378, 381 (Ct. App.
2021) (reversing and finding clear error where Appellate Panel offered no medical
testimony to support its conclusion that claimant's "doctors' opinions were based
upon 'self-serving assertions of the claimant'"). Neither occurred here. As
Claimant's varying—and erroneous—attempted diagnoses demonstrate, the
mechanism of her injury was complicated, and Employer correctly notes she
initially failed to attribute it to her work as a laminator. 4 But, the findings of both

4
We find the short-term disability form Claimant's husband helped her complete
did not provide a basis for the Appellate Panel to disregard Dr. Mazoue's expert
testimony. On the form, "No" was checked in the response to the question "Is this
condition work-related?" However, our supreme court rejected such as a basis for
denying compensability in Massey when the majority agreed with the circuit
court's finding that "evidence supporting a compensable injury is overwhelming."
See Massey v. W.R. Grace & Co., 286 S.C. 434, 436, 334 S.E.2d 122, 122 (1985)
the Single Commissioner and the Appellate Panel improperly penalized Claimant
for not understanding the genesis of her injury—an injury for which several
physicians provided a variety of clinical impressions and misdiagnoses until Dr.
Mazoue finally discovered the rotator cuff tear during surgery. 5 This was error—
both factually and as a matter of law.

"Workers' compensation law is to be liberally construed in favor of coverage in
order to serve the beneficent purpose of the Workers' Compensation Act; only
exceptions and restrictions on coverage are to be strictly construed." Nicholson v.
S.C. Dep't of Soc. Servs., 411 S.C. 381, 385, 769 S.E.2d 1, 3 (2015). The Act
defines a compensable injury as "only injury by accident arising out of and in the
course of the employment and shall not include a disease in any form, except when

(Gregory, J., dissenting) (in which the dissent noted that the employee failed to
report his injury as work-related and at one point stated the injury was not work-
related); Herndon v. Morgan Mills, Inc., 246 S.C. 201, 216, 143 S.E.2d 376, 384
(1965) ("[W]here the subject is one for experts or skilled witnesses alone and
concerns a matter of science or specialized art or other matters of which a layman
can have no knowledge, the unanimous opinion of medical experts on particular
subjects may be conclusive, even if contradicted by lay witnesses.").
5
Claimant's clinical impression notes and diagnoses (or misdiagnoses) included
conditions ranging from "likely brachial plexitis" (Dr. Shaffer) to "right upper
extremity pain" and "muscle spasm" (Dr. Tanner) to "mild degenerative disc
changes at C5-6 (Dr. Fanning) to "asymptomatic cervical disk bugle [sic] at C5-6
and probably has shoulder pathology on the right of some sort" (Dr. Sweet), to
"[r]ight questionable early adhesive capsulitis" and "[r]ight shoulder rotator cuff
tendinitis but with adhesive capsulitis" (Dr. McGown), to cervical radiculopathy
(Dr. Tanksley, initially) to rhabdomyolysis and deep vein thrombosis. While some
of these diagnoses may have also been applicable to Claimant's condition, all
missed the actual injury causing her pain—the rotator cuff tear. This is somewhat
understandable in that Claimant herself did not understand the mechanics of her
injury—she just knew she was in pain and could no longer do the lifting required
for her job. As she explained in her deposition, she did not tell the doctors at
Providence that she had been hurt at work because at that "particular time, I didn't
know what was wrong with me. I didn't know—all I just know, I was hurting."
Claimant's medical records demonstrate she was consistent about the onset of her
pain: she knew where, when, and how it began—she simply did not understand the
cause or mechanics of her injury. Neither did several doctors.
it results naturally and unavoidably from the accident except such diseases as are
compensable under the provisions of Chapter 11 of this title." § 42-1-160. An
injured employee is not required to identify a specific causal event to prove her
injury is compensable. See Clade v. Champion Labs, 330 S.C. 8, 12, 496 S.E.2d
856, 858 (1998).

McGuffin v. Schlumberger-Sangamo, 307 S.C. 184, 186, 414 S.E.2d 162, 163
(1992), is helpful to our analysis. There, the claimant began to feel a "bad
stinging" in her back while picking up a heavy tray at work. Id. The claimant
initially believed the pain was related to a congenital deformity of her right kidney,
which had caused soreness in the past. Id. When her pain worsened, the claimant
went to the emergency room, and the urologist found her symptoms were
consistent with a kidney stone. Id. When testing revealed a kidney stone was not
the problem, the claimant was treated for muscle strain. Id. at 186–87, 414 S.E.2d
at 163. As the muscle strain treatment was initially successful, the urologist
determined her pain was musculoskeletal. Id. at 187, 414 S.E.2d at 163. Five
weeks later, an orthopedic surgeon diagnosed the claimant with a lumbosacral
strain caused by lifting. Id. at 187, 414 S.E.2d at 164. At a hearing before a single
commissioner, McGuffin's orthopedic surgeon connected her injury to her work,
and this medical evidence was not disputed. Id. Thus, the single commissioner
awarded the claimant workers' compensation benefits; however, the full
commission reversed, relying heavily on the initial erroneous diagnosis and the
fact that the claimant "did not immediately attribute her pain to her lifting." Id. In
reversing the commission, our supreme court noted, "The respondent had been
lifting these trays eight to ten times a day for four months without incident.
Therefore, it was not unreasonable for her not to make the connection at the time."
Id. Our supreme court held the claimant's own misdiagnosis was not substantial
evidence from which it could be inferred that her injury did not result from an
accident at work. Id. at 187–88, 414 S.E.2d at 164.

As in McGuffin, Claimant's failure to immediately attribute her injury to her work
is not fatal to her workers' compensation claim, particularly since several
physicians were unable to make a correct diagnosis until some two months after
the onset of her symptoms. Claimant consistently reported her right arm and
shoulder pain began at work on April 11, and she first sought medical treatment at
the emergency room on April 13. It was not until June 11, two months after
Claimant's pain began, that Dr. McGown discerned some type of rotator cuff
injury. Only later did Claimant realize her injury was related to her job, which
involved lifting heavy rolls and sheets of laminating materials. According to
Claimant, she told her supervisor in July 2012 that the injury was work-related, and
no evidence was presented to contradict this testimony. Still, the tear was not
discovered until the 2014 surgery. Based on the record as a whole, most
specifically the unequivocal expert opinion of Dr. Mazoue and the chronology of
Claimant's reporting to the various doctors who examined her, we find the fact that
Claimant did not report that her injury arose from her work until she received the
initial shoulder diagnosis is not substantial evidence necessary to support the
finding that the injury itself was not work-related. See, e.g., id. (holding
employee's misdiagnosis of cause of her back pain did not constitute substantial
evidence from which the commission could deduce employee's injury did not result
from work-related accident as her treating physician testified).

Notably, the only medical opinion given to a reasonable degree of medical
certainty is that of Dr. Mazoue: that the patient's right shoulder injury "most likely
occurred on April 10, 2012 (sic), while the employee was engaged in the regular
duties of her employment as a laminator lifting heavy rolls." Although no expert
was called to challenge Dr. Mazoue's opinion—or the amended notation of
Claimant's other treating physician, Dr. Tanksley—the Single Commissioner
found, viewing the evidence "as a whole," he was "not persuaded that the Claimant
had an injury by accident on or about 04/10/13 (sic)." The Appellate Panel's
subsequent order affirming the Single Commissioner also recognized "Dr. Mazoue
further indicated that there was a direct causal relationship between the condition
under which the work is performed and the injury." And, the Appellate Panel
specifically found that in his deposition, "Dr. Mazoue does not change his opinion
as to any of the above."

Despite these findings, the Appellate Panel—like the Single Commissioner—
declined to give Dr. Mazoue's opinion "normal weight" and instead relied on the
medical records of various physicians who misdiagnosed Claimant's rotator cuff
injury to reject the only expert opinions addressing causation—those of Dr.
Mazoue and Dr. Tanksley. In the context of the chronology of this case—and
absent an expert opinion to the contrary—this was error.

Conclusion

We affirm the Appellant Panel's decision as to section 42-1-172 of the South
Carolina Code (2015) and repetitive trauma; however, we find the Appellate
Panel's findings and conclusions as to section 42-1-160 and the lack of a work
nexus are not supported by the substantial evidence in the record and are affected
by errors of law. Thus, we reverse this portion of the Appellate Panel's order and
remand this matter for a calculation of benefits. 6

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

WILLIAMS, C.J., and THOMAS, J., concur.

6
We agree with Employer that Claimant's argument addressing a "dead zone"
created by the interaction of sections 42-1-160 and 42-1-172 was first made before
this court; therefore, it is not appropriate for our review. See Miller v. Dillon, 432
S.C. 197, 207, 851 S.E.2d 462, 467 (Ct. App. 2020) ("It is axiomatic that an issue
cannot be raised for the first time on appeal, but must have been raised to and ruled
upon by the trial judge to be preserved for appellate review." (quoting Wilder
Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998))).