Joyner v. Sumter 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

Thomas Joyner, Appellant,

v.

Sumter County, Respondent.

Appeal From Sumter County

 Jeffrey Young, Circuit Court Judge

Unpublished Opinion No. 2010-UP-544

Submitted December 1, 2010 – Filed
December 16, 2010

AFFIRMED

John Derrick Clark, of Sumter, for Appellant.

Earl Ellis, Mary Sowell League, and F. Earl Ellis, Jr., of
Columbia, for Respondent.

PER CURIAM:  Thomas Joyner appeals the order of the circuit court
affirming the decision of the Appellate Panel of the Workers' Compensation Commission
awarding Joyner thirty percent impairment to the back and fifteen percent to
the leg.  We affirm. 

FACTS/PROCEDURAL HISTORY

On July 30, 2002,
Joyner was working as a landfill attendant for Sumter County when he injured
his back.  He was diagnosed with lumbar stenosis.  His treatment was
complicated by his morbid obesity.  He underwent gastric bypass surgery in
December 2004 and lost over one hundred and fifty pounds at the time of the
hearing.  Joyner received five lumbar epidural steroid injections in his lower
back/spine.  Dr. Thomas Zgleszewski with the Center for Pain Management at Palmetto Health assigned Joyner thirteen
percent impairment to the back/spine.  Dr. Alfred Dawson of Florence Orthopedics
Associates performed an independent medical evaluation of Joyner and assigned
him an impairment rating of twenty percent to the lumbar spine and five percent
to the lower right extremity. 

The single
commissioner ruled Joyner had suffered a thirty percent permanent partial
disability to his back and a fifteen percent partial disability to the right
lower extremity.  The Appellate Panel and circuit court affirmed.

STANDARD OF REVIEW

The
Administrative Procedures Act establishes our standard of review of decisions
by the South Carolina Workers' Compensation Commission.  Shealy v. Aiken County, 341 S.C. 448, 454, 535 S.E.2d 438, 442
(2000).  Accordingly, this court can reverse
or modify the Appellate Panel'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.  Id.; S.C. Code Ann. § 1-23-380(5) (Supp.
2009).  "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 [Appellate Panel] reached."  Shealy, 341 S.C. at 455, 535
S.E.2d at 442.  The possibility of drawing two inconsistent conclusions does
not prevent the Appellate Panel's conclusions from being supported by
substantial evidence.  Tiller v. Nat'l Health Care Ctr., 334 S.C. 333,
338, 513 S.E.2d 843, 845 (1999).  The 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.

LAW/ANALYSIS

1. Disability rating

Joyner argues the
Appellate Panel erred in holding he had only sustained a thirty percent
permanent partial disability to his back and a fifteen percent partial
disability to the right lower extremity.  He asserts he sustained at least
fifty percent loss of use of his back and thus should be presumed to have
suffered total and permanent disability pursuant to Section 42-9-30(21) of the
South Carolina Code, which provides:

The
compensation for partial loss of use of the back shall be such proportions of
the periods of payment herein provided for total loss as such partial loss
bears to total loss, except that in cases where there is fifty percent or more
loss of use of the back the injured employee shall be presumed to have suffered
total and permanent disability and compensated under Section 42-9-10(B). The
presumption set forth in this item is rebuttable.

S.C. Code Ann. § 42-9-30(21)
(Supp. 2009).

Joyner
testified he was in pain all of the time.  He stated the pain goes from his
lower back down his right leg and the bottom of his right foot stays numb. 
Joyner related he cannot stand for a long time, walk very far, or bend.  He
claimed he could only sit or stand for an hour and a half at best.  He
testified he has to use a cane because of knee problems.  He asserted that
since being released by Dr. Dawson and Dr. Zgleszewski, he had become worse,
but he cannot take pain medicine due to his gastric bypass surgery.  Joyner
opined he had suffered a fifty percent disability to his back and a fifty
percent disability to his right leg. 

Dr.
Zgleszewski, however, assigned Joyner a thirteen impairment to the back/spine. 
Dr. Dawson assigned Joyner an impairment rating of twenty percent to the lumbar
spine and five percent to the lower right extremity.  We find substantial
evidence supports the Appellate Panel's decision that Joyner sustained a thirty
percent permanent partial disability to his back and a fifteen percent partial
disability to the right lower extremity.

2. Total incapacity to work

Joyner argues the
Appellate Panel erred in not finding he was permanently and totally disabled
when the evidence established that his incapacity for work resulting from
injury was total. 

Joyner
has a tenth grade education.  Before working at the landfill, he was a security
guard, a long-distance truck driver, and worked at a warehouse driving and
loading trucks. 

Dr. William
Stewart, a certified rehabilitation counselor, reported:

[W]hen
Mr. Joyner's significant physical limitations are considered in light of his
low educational levels, it is highly unlikely he would be able to find or
sustain employment.  And, based on his advanced age, work history, lack of
transferable job skills, illiterate functional educational abilities and
significant physical restrictions, he is not a reasonable vocational
rehabilitation candidate.  Consequently, I do not believe a reasonably stable
market exists or will exist for the types of services that Mr. Joyner is
physically, psychologically, educationally or vocationally capable of
performing/sustaining. 

Dr. Stewart noted Joyner was
fortunate to have the job he was currently in, "albeit a rather benevolent
job." 

Dr.
Zgleszewski provided Joyner could work with restrictions.  Joyner could sit,
stand, and walk four to six hours.  In addition, he could occasionally lift one
to ten pounds from floor to knuckle or shoulder to overhead and eleven to
twenty pounds from knuckle to shoulder. 

Joyner
did not miss any time from work due to his injury.  As a landfill attendant, he
has to weigh and inspect trucks.  He does not have to do any lifting.  Although
Joyner stated he could not drive a truck because he could not use his feet in a
repetitive motion, he acknowledged he had driven himself to the hearing. 

We
find the record contains substantial evidence to support the Appellate Panel's ruling
that Joyner is not totally incapacitated from work. 

CONCLUSION

For the above
stated reasons, the order of the circuit court is

AFFIRMED. 

HUFF,
KONDUROS, and LOCKEMY, JJ., concur.