Britton v. Charleston 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

Laurent W. Britton, Decedent/Employee, and Marsha P.
Britton, Claimant, Respondents,

v.

Charleston County, Employer, and SC Association of
Counties SIF, Carrier, Appellants.

Appellate Case No. 2016-000595

Appeal From The Workers' Compensation Commission

Unpublished Opinion No. 2018-UP-368
Heard May 17, 2018 – Filed September 19, 2018

AFFIRMED

Joseph Hubert Wood, III, of Wood Law Group, LLC, of
Charleston, and Grady Larry Beard, Nicolas L. Haigler,
and Eve S. Goodstein, of Sowell Gray Robinson Stepp &
Laffitte, LLC, of Columbia, for Appellants.

James K. Holmes, of The Steinberg Law Firm, LLP, of
Charleston, and R. Walter Hundley, of R. Walter
Hundley Law Firm, of Charleston, for Respondent.
MCDONALD, J.: In this workers' compensation matter, Appellants Charleston
County (the County) and the South Carolina Association of Counties Second
Injury Fund (Carrier) appeal the Appellate Panel of the South Carolina Workers'
Compensation Commission's (the Commission's) order, which "Affirmed in Full"
the order of the single commissioner. The single commissioner awarded
compensation to Respondent Marsha Britton (Claimant), finding the death of her
fifty-eight-year-old husband, Laurent "Larry" Britton (Decedent), was the result of
a compensable heart attack arising out of and in the course of his employment as
manager of the Charleston County Radio Communications Department (the
Department). Appellants contend the Commission erred in finding Decedent's
heart attack compensable, failing to properly apply the heightened heart attack
standard, and failing to make sufficient findings of fact. Appellants further
challenge the Full Commission's issuance of an order denying their motion for
rehearing by the Full Commission. We affirm.

Facts and Procedural History

At 7:23 p.m. on Monday, September 8, 2014, courtesy officers reported an assault
involving a small weapon at the Garden Apartments in the West Ashley area of the
City of Charleston. The Charleston County Sheriff's Office (the Sheriff's Office)
responded to the scene and attempted to make contact with the suspect, who had
barricaded himself in an apartment. The suspect exchanged gunfire with Deputies
Michael Ackerman and Joseph Matuskovic. At approximately 7:36 p.m., a call
came over the radio reporting "shots fired, officers down." Emergency Medical
Services (EMS) subsequently transported Deputies Ackerman and Matuskovic to
the Medical University of South Carolina (MUSC). Deputy Ackerman underwent
surgery; Deputy Matuskovic died upon his arrival at MUSC.

A nine-hour standoff ensued; multiple law enforcement agencies and emergency
response units responded to the Garden Apartments.1 Upon entering the suspect's
apartment at approximately 4:00 a.m. on September 9, 2014, the Charleston Police
Department SWAT team found the suspect unresponsive.2

1
More than 100 first responders responded to the scene.
2
Charleston County Coroner Rae Wooten testified the suspect died from wounds
suffered in the gunfire exchange with Deputies Ackerman and Matuskovic.
Decedent was attending a Fraternal Order of Police (FOP) dinner in Hanahan when
he learned of the incident. He called radio technician Martin Kratz at
approximately 8:11 p.m., to report the shooting and instruct Kratz to contact the
Sheriff's Office to determine its needs. Kratz spoke with Decedent again at 8:27
p.m., to report on his contact with the Sheriff's Office; Decedent instructed Kratz to
meet him at the Department in North Charleston. Decedent then called his
supervisor, Charleston County Director of Radio and Telecommunications William
"Bill" Tunick, at 8:36 p.m. to discuss the developing situation.

When Kratz arrived at the Department, he found Decedent monitoring the radio
system. They discussed the equipment needed for the West Ashley command post;
Kratz then took the equipment to the command post while Decedent remained in
the equipment room monitoring the radio system. Over the next several hours, the
two exchanged numerous telephone calls and text messages. According to Kratz
and Tunick, no congestion or breakdown in the radio system occurred during the
standoff.

At 1:25 a.m. on Tuesday, September 9, 2014, Decedent called 911 to report
multiple physical complaints, including shortness of breath and chest pain. When
the Sheriff's Office advised Kratz of Decedent's 911 call, Kratz left the command
post and returned to the Department, where he unlocked the doors for EMS and
directed them upstairs to the equipment room. EMS transported Decedent to
MUSC, where he died of an apparent heart attack at approximately 3:05 a.m.

Charleston County submitted a workers' compensation claim on behalf of Claimant
and Carrier denied the claim. Claimant subsequently filed a Form 52, alleging
Decedent died as the result of a compensable heart attack; Appellants filed a Form
53 denying the claim. The matter was heard by the single commissioner on June
19, 2015.

Although Decedent had a family history of heart disease, he had no prior treatment
for or complaints related to heart issues before his fatal heart attack. EMS records
state he had "no cardiac history" and "no coronary artery disease." Claimant's
longtime family physician and expert witness, Dr. William Wilson, opined that
"due to the unexpected strain and overexertion on September 8 and 9, 2014,
[Decedent] died of a sudden acute myocardial infarction while providing law
enforcement support under unusual and extraordinary conditions of employment."

In finding Decedent's heart attack compensable, the single commissioner noted that
"[e]very single witness at the hearing, including [Appellants'] witnesses, testified
that the circumstances surrounding the standoff were unusual/or not typical."3 The
single commissioner held Claimant was entitled to funeral benefits and five-
hundred weeks of compensation in a commuted lump sum. The Commission
unanimously affirmed, and the Full Commission unanimously denied Appellants'
subsequent Rule 59(e) motion.

Standard of Review

The Administrative Procedures Act (APA) establishes the "substantial evidence"
rule as the standard of review for decisions of the Commission. Lark v. Bi-Lo,
Inc., 276 S.C. 130, 133–35, 276 S.E.2d 304, 306 (1981). "Substantial evidence is
'not a mere scintilla of evidence nor the evidence viewed blindly from one side of
the case, but is evidence which, considering the record as a whole, would allow
reasonable minds to reach the conclusion that [the Commission] reached or must
have reached' to support its orders." Lewis v. L.B. Dynasty, Inc., 419 S.C. 515,
518, 799 S.E.2d 304, 305 (2017) (quoting Lark, 276 S.C. at 135, 276 S.E.2d at
306). "In workers' compensation cases, the Full Commission is the ultimate fact
finder." Shealy v. Aiken Cty., 341 S.C. 448, 455, 535 S.E.2d 438, 442 (2000).
Accordingly, an appellate court "must affirm the findings of fact made by the
[F]ull [C]ommission if they are supported by substantial evidence." Tennant v.
Beaufort County Sch. Dist., 381 S.C. 617, 620, 674 S.E.2d 488, 490 (2009).

Law and Analysis

I. Compensable Injury

Appellants argue the Commission erred in finding Decedent's fatal heart attack
compensable. We disagree.

"In determining whether a work-related injury is compensable, the Workers'
Compensation Act [(the Act)] is liberally construed toward the end of providing
coverage rather than noncoverage in order to further the beneficial purposes for
which it was designed." Shealy, 341 S.C. at 455, 535 S.E.2d at 442. "Any
reasonable doubt as to the construction of the Act will be resolved in favor of
coverage." Id. at 455–56, 535 S.E.2d at 442. 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 it results
naturally and unavoidably from the accident except such diseases as are

3
The Commission and Full Commission echoed this finding.
compensable under the provisions of Chapter 11 of this title." S.C. Code Ann. §
42-1-160 (2015). "It is well settled in this state that a heart attack suffered by an
employee constitutes a compensable accident if it is induced by unexpected strain
or overexertion in the performance of the duties of employment or by unusual and
extraordinary conditions in the employment." Fulmer v. S.C. Elec. & Gas Co., 306
S.C. 34, 36, 410 S.E.2d 25, 26 (Ct. App. 1991). "However, it is equally clear that,
if a heart attack results as a consequence of the ordinary exertion that is required in
the performance of employment duties in the ordinary and usual manner, and
without any outward untoward event, it is not compensable as an accident." Id. at
36, 410 S.E.2d at 26–27.

Appellants contend the Commission erred in finding the conditions of Decedent's
employment on the night of the armed standoff were unusual and extraordinary
because the Commission "focused exclusively on the unfortunate fact that two
officers were shot in an exchange of gunfire with a suspect, an event the Decedent
was neither present for nor participated in by way of radio." They cite Bentley v.
Spartanburg County, 398 S.C. 418, 427, 730 S.E.2d 296, 301 (2012), for the
proposition that "[t]he only issue is whether the employment condition was
extraordinary and unusual with respect to" Decedent's position as the radio
communications manager.

Abundant evidence supports the Commission's finding. For example, Decedent's
long hours on September 8 and 9, 2014, were a contributing factor to the "unusual
and extraordinary conditions" of his employment, which resulted in his fatal heart
attack. See Kearse v. S.C. Wildlife Res. Dep't, 236 S.C. 540, 542–43, 115 S.E.2d
183, 184–85 (1960) (explaining that although some of the activities were of the
nature usually performed by the game warden, the combination of late hours, frigid
weather, extreme exertion, and rough terrain, which continued uninterrupted over
an unusual length of time, constituted unusual or extraordinary conditions); S.C.
Second Injury Fund v. Liberty Mut. Ins. Co., 353 S.C. 117, 125, 576 S.E.2d 199,
204 (Ct. App. 2003) (affirming the circuit court's decision that substantial evidence
supported the Full Commission's determination of unusual and extraordinary
employment conditions based on the testimony of the decedent's supervisor that he
had only experienced one other similar fire in forty years of farming and that he
would "never forget it," as well as other evidence indicating an abnormally
stressful work environment on the day of decedent's fatal heart attack).
Decedent left work at his normal time on September 8, 2014.4 However, upon
being notified of the officer shootings and standoff in West Ashley, Decedent
returned to the Department from the FOP dinner at approximately 8:37 p.m., where
he remained in the equipment room monitoring the radio system even after he
began experiencing shortness of breath and chest pain. He called 911 at 1:25 a.m.

In their respective testimonies, Claimant, Tunick, and Charleston County Sheriff
Al Cannon acknowledged the occurrence of several "unusual and extraordinary
conditions" in Decedent's employment on September 8 and 9. Claimant testified
Decedent was alone at the Department; Decedent bore the heavy responsibility of
keeping more than one hundred first responders in communication; Decedent
experienced a different kind of stress because he believed his friend had been shot
and killed; and Decedent had not experienced the death of a Charleston County
deputy in the line of duty during his employment with the Department. Regarding
their September 8, 2014 call, Tunick testified:

[Decedent] was—sounded very stressed because,
obviously, it's a very sad occurrence when a police
officer gets shot and killed, and he felt—so he basically
informed me that this incident was ongoing and he had to
go to the radio shop, that Martin was going to go into the
scene itself, he was going to the radio shop to help
manage the incident, the com[munications] incident, the
com[munications] portion of the incident and—but he—
at that time he told me he felt—he thought that the
person—that the police officer that was killed was a
friend of his, a good friend of his. It was not known who
was down at that point, but through word of mouth, I
guess, he had thought that this was someone that he knew
very well. He was mistaken when the name of the officer
was released.

Sheriff Cannon, who testified by deposition, explained that the standoff and
shootings were "unique" and "extraordinary" within the definition of "emergency,"
and that to describe the circumstances as exceptional or unusual would be an
"understatement." In a February 2015 letter, Sheriff Cannon wrote,

4
Decedent's regular hours were 7:30 a.m. to approximately 3:30 p.m. or 4:00 p.m.
The circumstances under which [Decedent] was called to
perform his duties were extremely rare and unusual and
extraordinarily stressful and traumatic. This assessment
is based on having commanded law enforcement
agencies for over thirty (30) years and having dealt
during that time with all manner of tragic situations and
disasters.

Evidence of the importance of keeping the communications systems running and
congestion-free during a crisis situation was also presented. Coroner Wooten's
testimony indicated that communications systems failed during the 2007 Sofa
Super Store Fire, resulting in subsequent improvements to the County's system.
She stated, "We learned a lot during that time about how communication could
help, hinder, impact our response."

Charleston County EMS Medical Director Dr. Ralph Shealy testified,

[T]here are many ways in which communications can fail
during a crisis. . . . [I]n disasters[,] the most common
failure is a communications failure, which then
precipitates failures of—that follow from that. We spend
a great deal of time in our training for disaster response
solving problems relating to communications because of
their criticality. . . . [T]he issue of communications is
always a critical factor. If there are too many people
trying to use the system at the same time, the system
fails, and one of the critical disciplines is to try to restrict
radio communications to keep the channels open so that
critical information can be transmitted as a general
principle. There are technical issues as well . . . . I'm not
a technical electronics person, and I can't describe that in
detail. But I understand that in an event, especially an
event in which there are many people on the scene—in
this particular event, there were law enforcement officers
from agencies from many miles away[,] who had
responded to that location. There were hundreds of
officers and all were in need of some kind of radio
access. So it was a potential overload, and—and we all
understood that we need to keep off the air because if we
didn't[,] the system could shut down.
In response to being asked whether he would classify the emergency situation in
this case as "usual or normal," Dr. Shealy responded, "I've been doing this [thirty-
five] years, sir, and this was the only time this ever happened to me." Based on
this testimony, as well as the fact that Decedent was responsible for keeping the
lines of communication open for more than 100 first responders during the unique
emergency situation in this case, we find no error in the Commission's finding that
Decedent's fatal heart attack was "induced by unexpected strain or overexertion in
the performance of the duties of employment or by unusual and extraordinary
conditions in the employment." Fulmer, 306 S.C. at 36, 410 S.E.2d at 26–27.

While some of the circumstances and activities of September 8 and 9, 2014, may
not have been uncommon to Decedent's employment, substantial evidence supports
the Commission's finding that his death occurred under "unusual and extraordinary
conditions" and was, thus, compensable. See e.g., Kearse, 236 S.C. at 542–43, 115
S.E.2d at 184–85 ("The phrase 'unusual or excessive strain' . . . is not so limited in
its meaning as to include only work of an entirely different character from that
customarily done.").

II. Decedent's Job Description and Bentley

We find Appellants' argument that the Commission failed to consider Decedent's
job description, which required him to "be available 24/7 for emergencies," to be
without merit because the Commission specifically referenced Decedent's job
description as "Defendant's APA.17" in finding 6 of its order. Nor do we find the
Commission failed to correctly apply the heart attack standard as considered in
Bentley, 398 S.C. at 431, 730 S.E.2d at 303.

In Bentley, our supreme court found:

Appellant would like this Court to reframe the issue, take
it out of its particular employment context, and ask
"whether killing another human being is 'unusual.'" This
approach, however, contradicts Shealy's command to
look at conditions of the particular employment in which
the injury occurs and not to conditions of employment in
general. Appellant also argues that because statistics
show that the killing of suspects by a Spartanburg County
deputy sheriff occurred about once a year, this meant that
shooting and killing was an unusual and extraordinary
event. However, in defining what constitutes unusual
and extraordinary, the statute and our case law speak of
conditions of employment and not the frequency of an
event occurring. Moreover, if the frequency of killing is
the decisive factor, then it is difficult to put a precise
number on how many suspects must be killed before the
killing ceases to be extraordinary and unusual. Under
our case law, we cannot ignore the particular
employment context and hold that killing a suspect is
generally and inherently extraordinary and unusual.

Id. at 430, 730 S.E.2d at 302–03 (citations omitted). Here, in recognizing and
considering Decedent's job duties and description, the Commission could not
ignore the fact that "every single witness testified that the circumstances regarding
the standoff/shootings were unusual and/or not typical; not a single witness
testified to the contrary[.]" (emphasis in original). Bentley considered a claim for
mental-mental injury governed by a statute not applicable in this death case, and its
facts are distinguishable. We find no error.

III. Findings of Fact

Appellants argue the Commission erred in failing to make sufficient findings of
fact. We disagree.

The APA mandates that "[a] final decision shall include findings of fact and
conclusions of law, separately stated. Findings of fact, if set forth in statutory
language, shall be accompanied by a concise and explicit statement of the
underlying facts supporting the findings." S.C. Code Ann. § 1-23-350 (2005); see
also Grant v. Grant Textiles, 372 S.C. 196, 203, 641 S.E.2d 869, 872 (2007) ("By
simply repeating the statute's language, with little else, the full commission's
decision failed to comply with this requirement.").

Appellants maintain the Commission violated the APA because it "unequivocally
failed to provide a single finding of fact or conclusion of law as to the seminal
issue in this matter—whether the conditions of the Decedent's employment on the
night in question were unusual and extraordinary." But our review of the order
reflects at least seven findings of fact relevant to this inquiry. As these seven
findings of fact set forth more than simply the statutory language, see S.C. Code
Ann. § 1-23-350, or mere "recital[s] of conflicting testimony followed by a general
conclusion . . . ." Able Commc'n, Inc. v. S.C. Pub. Serv. Commc'n, 290 S.C. 409,
411, 351 S.E.2d 151, 152 (1986), we find no error.

IV. Regulation 67-709 and Due Process

Appellants next contend the single commissioner's participation in the Full
Commission's unanimous order denying rehearing violated Regulation 67-709 of
the Act and their right to due process. We disagree.

Regulation 67-709 addresses the procedure for Commission review, providing in
relevant part:

A. Commission review may be conducted by a three or
six member review panel either of which excludes the
original Hearing Commissioner. An order of a three
member review panel has the same force and effect as
a six member review panel and is the final decision of
the Commission.

B. The Commission’s Chair with approval of the
majority of the other Commissioners shall assign
cases to a three member panel according to the
following subsections:

(1) When a Form 30 is filed, the Hearing
Commissioner is notified. If the Hearing
Commissioner determines the review involves a
novel issue of law or fact, the Hearing
Commissioner may request the Commission's
Chair set the case for review by a six member
review panel.

(2) If the Hearing Commissioner does not request a six
member review, the Commission's Chair may
assign the review to a three member panel.

(3) The Commission's Chair may appoint by random
selection two review panels and exclude, on a
rotating basis, one Commissioner from the panels
each month. The Commission's Chair may assign
a case for review as in B(2) above to a three
member panel that excludes the original Hearing
Commissioner.

The single commissioner, Commissioner Barden, issued her findings of fact,
conclusions of law, and order on August 17, 2015. Appellants timely filed their
Form 30 request for Commission review on August 27, 2015. Regulation 67-709,
upon which Appellants rely in asserting error, governed this appellate review
before Commissioners James, McCaskill, and Taylor. Notably—and in
accordance with 67-709(A)—Commissioner Barden did not participate in this
appellate review.

In 2015, our supreme court recognized a procedural right for a party, on review of
a single commissioner's order, to move before the Appellate Panel for rehearing
prior to appealing to this court. See Rhame v. Charleston Cnty. School Dist., 412
S.C. 273, 772 S.E.2d 159 (2015) (holding petitioner properly moved for rehearing
before the Commission because it makes the ultimate credibility and factual
determinations). The court explained:

The plain language of section 1-23-380(1)[5] indicates
that the legislature, by including the phrase "if a
rehearing is requested," intended to allow motions for
rehearing before all administrative agencies that are
governed by the [APA]. See Lark v. Bi–Lo, Inc., 276
S.C. 130, 132, 276 S.E.2d 304, 305 (1981) (noting that
the APA was enacted "to provide uniform procedures
before State Boards and Commissions" (emphasis
added)). Section 1-23-380 is titled "Judicial review upon
exhaustion of administrative remedies." See Lindsay v.
S. Farm Bureau Cas. Ins. Co., 258 S.C. 272, 277, 188
S.E.2d 374, 376 (1972) ("It is 'proper to consider the title
or caption of an act in aid of construction to show the
intent of the legislature.'" (quoting Univ. of S.C. v. Elliott,

5
See S.C. Code Ann. § 1-23-380(1) ("Proceedings for review are instituted by
serving and filing notice of appeal as provided in the South Carolina Appellate
Court Rules within thirty days after the final decision of the agency or, if a
rehearing is requested, within thirty days after the decision is rendered. Copies of
the notice of appeal must be served upon the agency and all parties of record.").
248 S.C. 218, 221, 149 S.E.2d 433, 434 (1966))).

Id. at 276–77, 772 S.E.2d at 160–61.

On January 20, 2016, Appellants sought rehearing as authorized by Rhame.
However, they captioned their request as a "Motion for Rehearing by the Full
Commission." The Full Commission considered, and unanimously denied, the
motion in its Judicial Conference on February 27, 2016. Chairman Beck signed
the order for the Commission; Commissioners James, McCaskill and Taylor (who
sat on the Appellate Panel) and Commissioners Barden, Wilkerson, and Campbell
(who did not so sit) concurred.

Appellants contend that their due process rights have been violated because single
commissioner Barden's concurrence in the unanimous decision of the Full
Commission violated Regulation 67-709(A). But the plain language of Regulation
67-709 applies to Commission, or Appellate Panel, review sought by way of a
Form 30. It does not address motions for rehearing, nor does it contemplate
rehearing before the Full Commission as Appellants requested here following their
review by a three member Appellate Panel. Indeed, the last amendment to
Regulation 67-709 occurred in 2010, before Rhame addressed the availability6 of
motions for rehearing from the Appellate Panel.

We find any error in the single commissioner's participation in the Full
Commission's unanimous vote to deny the motion for a rehearing—a motion not
required for Appellants to preserve their right to further appellate review—was
harmless and did not prejudice Appellants' substantial rights or violate their right to
due process. See e.g., Olsen v. S.C. Dep't of Health & Envtl. Control, 379 S.C. 57,
69, 663 S.E.2d 497, 503–04 (Ct. App. 2008) (setting forth the procedural due
process requirements of (1) adequate notice, (2) the opportunity for an adequate
hearing, (3) the right to introduce evidence, (4) and the right to cross-examine
witnesses and reiterating that "[t]he fundamental requirement of due process is the

6
Significantly, while Rhame recognized the right to file a motion for rehearing
with the Appellate Panel, it did not require the filing of such a motion to preserve
the right to further appellate review. See Rhame, 412 S.C. at 277, 772 S.E.2d at
161 ("While recognizing the right to file a motion for rehearing to an Appellate
Panel, we do not construe the 'if a rehearing is requested' language to mandate the
filing of a motion for rehearing. This is consistent with general administrative
law.").
opportunity to be heard at a meaningful time and in a meaningful manner. To
prevail on a claim of denial of due process, there must be a showing of substantial
prejudice.") (internal citations omitted).

Conclusion

The Commission's order affirming the single commissioner's award of benefits and
the Full Commission's order denying rehearing are

AFFIRMED.

HUFF and GEATHERS, JJ., concur.