Employee Solutions v. SC Second Injury Fund

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

Employee
Solutions, Inc. and AIG Claim Services, Appellants,

v.

South Carolina
Second Injury Fund, Respondent.

Appeal From Georgetown County

Benjamin H. Culbertson, Circuit Court
Judge

Unpublished Opinion No.  2011-UP-567 

Submitted December 1, 2011 – Filed December
20, 2011

Withdrawn, Substituted and Refiled January
30, 2012

AFFIRMED

Grady L. Beard and Nicolas L. Haigler,
both of Columbia, for Appellants.

Lisa C. Glover, of Columbia, for
Respondent.

PER CURIAM: Employee
Solutions, Inc. and AIG Claims Services (collectively Employer) appeal the
circuit court's order affirming the Appellate Panel of the South Carolina
Workers' Compensation Commission's (Appellate Panel) denial of Employer's
request for reimbursement from the South Carolina Second Injury Fund (Fund). 
On appeal, Employer argues the Appellate Panel erred in finding (1) Welch's Reactive
Airways Dysfunction Syndrome (RADS) was a
work-related injury and (2) Welch's Gastroesophageal Reflux Disease (GERD) did
not hinder his ability to seek employment. We affirm.[1]

The
purpose of the Second Injury Fund is to provide a financial incentive to
employers "to hire handicapped persons, or to retain employees who become
partially disabled in the course and scope of their employment."   State
Workers' Comp. Fund v. S.C. Second Injury Fund, 313 S.C. 536, 538, 443
S.E.2d 546, 547 (1994).  "It is designed to compensate employees
fully for subsequent injuries without penalizing employers for employing
them."  Id.  Section 42-9-400(a) of the South Carolina Code (2000)
permits the Fund to reimburse employer for workers' compensation claims when an
employee suffers from a permanent physical impairment and liability was
substantially increased due to a subsequent injury or aggravation of the permanent
physical impairment.  The employer must establish that when the claim is made
for reimbursement "the employer had knowledge of the permanent physical
impairment at the time that the employee was hired, or at the time the employee
was retained in employment after the employer acquired such knowledge." §
42-9-400(c).  However, the employer may qualify for reimbursement upon proof
that the employer did not have knowledge of the permanent physical impairment
due to employee's concealment of the impairment or the impairment was unknown
to the employee.  Id. 

We find
substantial evidence exists to support
the Appellate Panel's finding that RADS was a work-related injury and not a permanent
physical impairment.  See S.C. Code Ann. § 1-23-380(5)(e) (Supp. 2010)
(providing this court must affirm a decision of the Appellate Panel if it is
supported by substantial evidence).  In fact, no evidence exists in the record
indicating Welch ever suffered from other pulmonary diseases.  His medical
records from 1982, 1983, 1987, 1993, and 1997 all indicated Welch's lungs were
functioning normally and without any chronic illnesses.  Additionally, Dr. Eric
Moore, Dr. Wayne C. Vial, Dr. Robert L. Galphin, Jr., and Dr. Roger A. Russell
all believed Welch's RADS was a work-related condition caused by his long-term
exposure to hazardous materials.[2] 

We also find the Appellate
Panel did not err in finding that Welch's GERD did not hinder his ability to
work.  Although Dr. Galphin stated he did not know what impact GERD had on
RADS, he never concluded that it contributed to Welch's disability. 
Furthermore, no additional evidence exists that GERD might have contributed to Welch's
unemployment.  Moreover, Welch has suffered from GERD for some time, and it
never limited his ability to work.  Additionally, no doctor attributed Welch's
inability to work or his other medical conditions to GERD.  Instead, they
determined the RADS was caused by Welch's exposure to the sulfuric acid and the
brain injury was caused by the exposure to aluminum sulfate. 

AFFIRMED.

HUFF, PIEPER,
and LOCKEMY, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.

[2] Furthermore, we find Employer's reliance on Springs
Indus., Inc. v. South Carolina Second Injury Fund, 296 S.C. 359, 36-64, 372
S.E.2d 915, 917-18 (Ct. App. 1988), in arguing that Welch's RADS is a
pre-existing permanent impairment is unpersuasive.  In Springs, this
court permitted reimbursement from the Fund for a new employer because the employee's
permanent physical impairment developed over an extensive period of time while
working for another cotton mill.  Id.  However, this case is
distinguishable because Welch was continuously employed by the same employer
for over twenty years during which he received daily exposure to hazardous
materials.