Davideit v. ScanSource

THIS OPINION
HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN
ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Kevin
Davideit/Keith Davideit, (Deceased), Employee, Appellant,

v.

ScanSource,
Employer, and St. Paul Fire & Marine Ins. Co., Carrier, Respondents.

Appeal From Greenville County

 Edward W. Miller, Circuit Court Judge

Unpublished Opinion No. 2008-UP-279

Heard May 7, 2008 – Filed May 29, 2008

AFFIRMED

Malcolm M. Crosland, Jr., of Charleston, for Appellant.

Donald L. Van Riper, of Greenville, for Respondents.

PER CURIAM: 
In this action for death benefits, the circuit court affirmed the Workers’
Compensation Commission’s (Commission’s) denial of benefits for the death of
Keith Davideit.  Kevin Davideit appeals on behalf of the decedent.  We affirm. 
  

FACTS

When he died, Keith Davideit was a forty-four-year-old employee of
ScanSource.  Davideit had a seizure disorder that he managed by taking Dilantin. 
He suffered only two seizures in thirteen years.  Sometime in the afternoon of
May 9, 2003, Davideit left his work station and went to the men’s restroom. 
His co-workers later found him there, dead.  He was lying on his back in a
stall with his pants around his knees, as if he had been sitting on the toilet
and had fallen off.  A waste can partially covered his head, and he had
aspirated some of the waste can’s plastic liner.  A co-worker “had to pull
several times” to remove the plastic liner from Davideit’s mouth. 

Dr. Michael Ward performed an autopsy at the request of the
coroner and the medical examiner’s office.  The autopsy revealed
atherosclerotic coronary vascular disease with seventy to seventy-five percent
stenosis of the vessel lumen and acute pulmonary vascular congestion.[1]  Dr. Ward found Davideit’s somewhat
enlarged heart (mild cardiomegaly) and his aspiration of the plastic liner
contributed to his death.  

Dr. Ward testified he believed Davideit died from a heart attack
caused by atherosclerotic coronary artery disease rather than from
asphyxiation.  Dr. Ward prepared paraffin blocks during the autopsy, but they
did not confirm asphyxiation as the cause of death.  He found mild pulmonary
vascular congestion, meaning blood was backed up in the lung’s blood vessels
because the left side of the heart was not functioning properly near death.  Dr.
Ward testified this condition corresponds directly with a heart attack but only
indirectly with asphyxiation.  Dr. Ward conceded Davideit may have suffered a
seizure as well as a heart attack.  The postmortem toxicology report found no
Dilantin in his system.  Dr. Ward believed Davideit did not die immediately
upon falling to the floor; rather, he continued breathing at least long enough
to inhale the plastic liner.  However, Dr. Ward opined that Davideit would have
died regardless of whether the plastic liner was in his throat.    

Six other doctors reviewed the records pertaining to Davideit’s
death and autopsy, but none of them examined the body.  Five of those doctors
theorized Davideit suffered a seizure, and four believed Davideit would have
survived had he not aspirated the plastic liner.  One doctor found inadequate
data to determine the cause of death with certainty but believed Davideit could
have died from either a heart attack or asphyxiation. 

Davideit’s family sought workers’ compensation benefits for his
death.  The single commissioner found Davideit died of a heart attack and
denied benefits.  Both the appellate panel of the Commission and the circuit
court affirmed.  This appeal followed.

STANDARD OF REVIEW

In
reviewing workers’ compensation decisions, the appellate court ascertains “whether
the circuit court properly determined whether the appellate panel’s findings of
fact are supported by substantial evidence in the record and whether the
panel’s decision is affected by an error of law.”  Baxter v. Martin Bros.,
Inc., 368 S.C. 510, 513, 630 S.E.2d 42, 43 (2006) (citations omitted); see also S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007).  “‘Substantial
evidence’ is evidence which, considering the entire record, would allow
reasonable minds to arrive at the same conclusion reached by the administrative
agency.”  S.C. Second Injury Fund v. Liberty Mut. Ins. Co., 353 S.C.
117, 122, 576 S.E.2d 199, 202 (Ct. App. 2003).  The Administrative Procedures
Act does not permit an appellate court to “substitute its judgment for that of
the Commission as to the weight of the evidence on questions of fact.”  West
v. Alliance Capital, 368 S.C. 246, 251, 628 S.E.2d 279, 282 (Ct. App. 2006). 

LAW/ANALYSIS

Davideit
argues his death is compensable as a fall under the increased danger rule.  We
disagree.

The
appellate panel is the ultimate fact finder in Workers’ Compensation cases and
is not bound by the single commissioner’s findings of fact.  Etheredge v.
Monsanto Co., 349 S.C. 451, 454, 562 S.E.2d 679, 681 (Ct. App. 2002). 
The final determination of witness credibility and the weight to be accorded
evidence is reserved to the appellate panel.  Id. at 455, 562 S.E.2d at
681.  Expert medical testimony is designed to aid the appellate panel in coming
to the correct conclusion.  Corbin v. Kohler Co., 351 S.C. 613, 624, 571
S.E.2d 92, 98 (Ct. App. 2002).  Therefore, the appellate panel determines
the weight and credit to be given to the expert testimony.  Id. at 624,
571 S.E.2d at 98.  When there is conflicting medical evidence, the findings of
fact of the appellate panel are conclusive.  Nettles v. Spartanburg Sch.
Dist. No. 7, 341 S.C. 580, 592, 535 S.E.2d 146, 152 (Ct. App. 2000).  “‘[T]he
possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s findings from being supported by substantial
evidence.’”  Corbin, 351 S.C. at 618, 571 S.E.2d at 95 (quoting Muir
v. C.R. Bard, Inc., 336 S.C. 266, 282, 519 S.E.2d 583, 591 (Ct. App. 1999)).

I.  Substantial
Evidence

Our
first task in this matter is to determine whether the circuit court erred in
finding substantial evidence supported the appellate panel’s findings of fact.  See Baxter, 368 S.C. at 513, 630 S.E.2d at 43.  The single
commissioner, the appellate panel, and the circuit court all found Davideit
died of a heart attack.  By contrast, Davideit’s argument on appeal hinges on
the theory that he died from asphyxiation following a fall. 

The
circuit court did not err in finding substantial evidence supported the
decision of the appellate panel.  Following Davideit’s unwitnessed death, the appellate
panel relied upon forensic evidence to determine the cause of death.  The
appellate panel received and considered evidence including the coroner’s
report, the medical examiner’s autopsy report and testimony, and opinions from
six additional expert physicians.  Two likely causes of death emerged: heart
attack and asphyxiation following a fall. 

A substantial amount of evidence supported the heart attack
theory, including the observation that Davideit’s arteries suffered a seventy
to seventy-five percent reduction in blood flow due to atherosclerosis.  In
addition, blood had accumulated in his lungs, which suggested the left side of
Davideit’s heart failed shortly before death.  Dr. Ward explained the lack of
damage to the heart muscle by stating such damage generally becomes apparent
only if the decedent survives the heart attack for at least six hours.  On the
other hand, a substantial amount of evidence also supported the asphyxiation
theory.  The waste can’s plastic liner lodged deep in Davideit’s throat
indicated a prolonged struggle to breathe.  Davideit’s history of a seizure
disorder, coupled with the finding of no Dilantin in his system, offered a
plausible explanation for a fall and subsequent inability to extricate himself
from the overturned waste can.  However, Dr. Ward testified the paraffin blocks
he prepared during the autopsy failed to establish asphyxiation as the cause of
death.  Thus, the appellate panel had to decide between two competing and
highly credible explanations for this death. 

The
appellate panel made its decision by assigning different weights to the
opinions of the expert physicians.  Of the physicians who offered opinions,
only the medical examiner, Dr. Ward, had actually examined the body.  The
opinions of all the other experts were “obtained by the attorneys from both
sides for the purpose of supporting their respective positions on the cause of
death.”  Whereas Dr. Ward personally examined the body and conducted the
autopsy, and the other expert physicians merely reviewed records prepared by
Dr. Ward and others, the appellate panel placed greater weight upon Dr. Ward’s
opinion.  Consequently, the appellate panel subscribed to Dr. Ward’s theory of
death by heart attack.  Because substantial evidence supported this theory,
neither the appellate panel nor the circuit court erred in accepting it. 

II.  Error of Law

Having
found the circuit court properly concluded substantial evidence supported the
appellate panel’s findings of fact, we next turn to whether the appellate
panel’s decision was affected by an error of law.  See Baxter,
368 S.C. at 513, 630 S.E.2d at 43. 

An
injury is compensable under the Workers’ Compensation Act (Act) if it occurs
accidentally, “arising out of and in the course of employment.”  S.C. Code Ann.
§ 42-1-160(A) (Supp. 2007).  Generally, when an employee’s death is
unexplained, unnatural, and accidental, courts presume the death arose out of
employment when circumstances indicate the death “took place within the time
and space limits of the employment.”  Bagwell v. Ernest Burwell, Inc.,
227 S.C. 444, 451, 88 S.E.2d 611, 614 (1955).  Breaks taken to care for an
employee’s personal comfort are incidental to employment, and events occurring
during those breaks arise out of and in the course of employment.  Portee v.
S.C. State Hosp., 234 S.C. 50, 54, 106 S.E.2d 670, 672 (1959).   However,
specific rules relating to unexplained falls and heart attacks modify this
rule, as indicated below. 

The
standard we use to determine whether an employee’s death is compensable under
the Act depends upon the cause of death.  Therefore, we evaluate the
compensability of Davideit’s death from a fall using a different standard than
the compensability of his death from a heart attack. 

A.  Fall

Under
the increased danger rule, an unexplained fall is generally not compensable
unless the employment contributed to either the cause or the effect of the
fall.  Bagwell, 227 S.C. at 452-53, 88 S.E.2d at 614-15.  However, under
the special risk rule: 

The
causative danger must be peculiar to the work and not common to the
neighborhood.  It must be incidental to the character of the business and not independent of the relation of master and servant.  It need not have
been foreseen or expected, but after the event it must appear to have had
its origin in a risk connected with the employment, and to have flowed from
that source as a rational consequence.

West v. Alliance Capital, 368 S.C. 246, 252, 628 S.E.2d 279, 282 (Ct. App.
2006) (emphasis added; internal citations omitted).  Injuries are excluded from
compensability under the Act when they come “from a hazard to which the workmen
would have been equally exposed apart from the employment.”  Crosby, 330
S.C. at 493, 499 S.E.2d at 255. 

Assuming
arguendo Davideit died from the combination of a fall followed by asphyxiation,
his death would not be compensable.  Davideit argues on appeal that the
increased danger rule, and not the special risk rule, governs this matter.  We
disagree.  We find these rules work in harmony with one another and are not
mutually exclusive.  The special risk rule clarifies and limits the increased
danger rule rather than competing with it.  For example, our supreme court
denied compensation for death from an unexplained fall onto a concrete floor,
despite recognizing that the hard concrete floor may have contributed to the
severity of the employee’s injury.  Bagwell, 227 S.C. at 453, 88 S.E.2d
at 615.  When the employee would likely have encountered the same hazard in any
public place or private home, the increased danger rule did not apply.  Id. at 453, 88 S.E.2d at 615. 

Davideit
asserts the most likely sequence of events leading to his death include a
seizure or heart attack event while seated on the toilet, a resulting fall to
the floor, and asphyxiation on the waste can’s plastic liner while
incapacitated by the seizure.  Because Davideit’s injury occurred “within the
time and space limits of [his] employment,” we begin with the presumption that
his death arose out of his employment.  See Bagwell, 227 S.C. at
451, 88 S.E.2d at 614.  The personal comfort doctrine protects his claim from
exclusion merely because his injury occurred during a restroom break.  See Portee, 234 S.C. at 54, 106 S.E.2d at 672.   Davideit argues his
exposure to the waste can’s plastic liner renders his death compensable under
the increased danger rule.  However, Davideit does not assert his work at
ScanSource exposed him to waste cans or plastic liners any more than any other
aspect of his life.  In fact, no evidence supports the assertion that
Davideit’s exposure to waste cans or plastic liners was incidental to the
character of his work, or that he encountered those items more at work than in
any other aspect of his life.  Consequently, we find the special risk rule renders
Davideit’s death not compensable. 

B.  Heart
Attack

A
heart attack may be compensable if “‘the death arose out of employment, in that
it was brought about by unexpected strain or over-exertion, or as a result of
unusual and extraordinary conditions of employment.’”  S.C. Second Injury
Fund v. Liberty Mut. Ins. Co., 353 S.C. 117, 124, 576 S.E.2d 199, 203 (Ct. App. 2003) (quoting Jennings v. Chambers Dev. Co., 335 S.C. 249, 255, 516 S.E.2d
453, 456 (Ct. App. 1999)).  Under the two-pronged heart attack standard, an
injured employee must prove he suffered some unexpected exertion as part of his
employment and the exertion caused his injury.  Id. at 125-26, 576
S.E.2d at 204. 

Davideit’s
death from a heart attack is not compensable.  Again, we begin with the
presumption Davideit’s death arose from his employment and was not excluded
from compensability merely because it occurred during a personal comfort
break.  However, under the heart attack standard, a claimant must prove some unexpected
strain or over-exertion or extraordinary condition of employment caused his
heart attack.  Davideit does not argue, nor does the evidence indicate, that he
experienced any unanticipated strain or exertion.  Furthermore, there is no
indication that any such strain caused his heart attack.  Although Davideit
does contend his ingestion of the plastic liner contributed to his death, he
does not assert it caused his heart attack.[2] 
Consequently, we find Davideit’s heart attack did not arise out of his
employment, and it is not compensable. 

CONCLUSION

We
find the circuit court properly concluded substantial evidence supported the
appellate panel’s finding of death by heart attack and no error of law affected
the appellate panel’s decision.  Therefore, the circuit court did not err in
affirming the order of the appellate panel denying Davideit benefits. 
Accordingly, the order of the circuit court in this matter is

AFFIRMED.

SHORT
and KONDUROS, JJ., and CURETON, A.J., concur.

[1] “Atherosclerotic coronary vascular disease,” or
atherosclerosis, is a condition in which plaque deposits in the arteries
compromise blood flow.  Plaque comprised of deposits of cholesterol, fat,
calcium, or other waste causes the arteries to narrow and harden.  The
percentage of stenosis of the vessel lumen indicates how much of the original
passage has become clogged.  According to the American Heart Association:

Plaques
can grow large enough to significantly reduce the blood’s flow through an
artery.  But most of the damage occurs when they become fragile and
rupture.  Plaques that rupture cause blood clots to form that can
block blood flow or break off and travel to another part of the body. If either
happens and blocks a blood vessel that feeds the heart, it causes a heart
attack.  If it blocks a blood vessel that feeds the brain, it causes a stroke.  

http://www.americanheart.org/presenter.jhtml?identifier=4440. 

[2] Even were he to make that argument, the special risk
rule would bar compensability, as discussed above.