Dorsey v. Allwaste Services, Inc.

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

Rico Dorsey, Employee, Appellant,

v.

Allwaste Services, Inc., Employer, and Bridgefield
Casualty Insurance c/o Summit Holding, Inc., Carrier,
Respondents.

Appellate Case No. 2017-001947

Appeal From The Workers' Compensation Commission

Opinion No. 2021-UP-125
Heard September 12, 2019 – Filed April 21, 2021

REVERSED AND REMANDED

Andrew Nathan Safran, of Andrew N. Safran, LLC, of
Columbia, and Creighton B. Coleman, of Coleman &
Tolen, LLC, of Winnsboro, both for Appellant.

Jasmine Denise Smith, and Nicolas Lee Haigler, both of
Robinson Gray Stepp & Laffitte, LLC, of Columbia, for
Respondents.
PER CURIAM: Rico Dorsey (Claimant) appeals an order of the Appellate Panel
of the South Carolina Workers' Compensation Commission (the Appellate Panel),
arguing the Appellate Panel erred in denying his request to leave the hearing record
open for two expert witness depositions noticed by Employer. We reverse and
remand.

Facts and Procedural History

On July 17, 2015, a garbage truck struck Claimant, an employee of Allwaste
Services, Inc. (Employer), as he was collecting a trash can. That same day,
Claimant saw Dr. Cynthia Youmans, who found he suffered from upper back and
right arm pain and put him on light duty. On July 22, 2015, Dr. John Saunders saw
Claimant and referred him to physical therapy. On September 8, 2015, Claimant
filed a Form 50 request for a hearing.

Claimant received additional medical care and diagnostic testing, including
treatment with Dr. James O'Leary. Dr. O'Leary found Claimant had an abnormal
gait and "severe" back pain, and determined the lower back pain was directly
related to Claimant's workplace accident. An October 2015 MRI revealed mild to
moderate lumbar spondylosis, and a subsequent electromyography reflected mild
nerve root irritation. Dr. O'Leary recommended an epidural steroid injection,
which Claimant received in December 2015. Ultimately, Dr. O'Leary instructed
Claimant to remain out of work through February 4, 2016. In February 2016, Dr.
Ivan Lomatta, a spine surgeon, found Claimant had reached maximum medical
improvement (MMI), with no loss of function or permanent impairment of his
spine. Claimant's MRI revealed early mild degenerative changes.

Claimant was seen in April 2016 by Dr. Blake Dennis and Dr. Leonard Forrest of
the Southeastern Spine Institute. Dr. Dennis found Claimant had no spine
abnormality and was not a surgical candidate; Dr. Forrest reported "a normal study
only noting mild noncompressive spondylosis" with "perhaps some mild disc
bulging in the lower lumbar spine." Claimant's medical records further noted his
spinal degenerative changes, lower back symptoms, and leg symptoms
"undoubtedly predated the incident from last July; however, the likelihood [is] this
condition was aggravated by his incident last July and caused to be symptomatic."

A hearing scheduled for April 15, 2016, was continued until May 9, 2016, due to
Claimant's attorney's legislative duties. A May 9, 2016 hearing was also continued
and reset for July 22, 2016.
On July 6, 2016, Employer filed its Form 58 pre-hearing brief and noticed the
depositions of Dr. Dennis and Dr. Forrest. That same day, the single
commissioner's office emailed both parties, stating the record would be left open
for these depositions. The depositions of Dr. Forrest and Dr. Dennis were
scheduled for August 8, 2016, and August 18, 2016, respectively. As Employer
had previously noticed the depositions and listed the two physicians as witnesses,
Claimant's Form 58, filed July 12, 2016, did not include notices for the depositions
or list Dr. Dennis or Dr. Forrest as potential witnesses. Two days before the
scheduled hearing, Claimant supplemented his Form 58 to include a patient
questionnaire from Dr. Forrest.

On July 22, 2016, Claimant moved to postpone the hearing. At that point,
Employer requested the record be closed to all evidence except Dr. Dennis's and
Dr. Forrest's scheduled depositions. The single commissioner continued the
hearing and ordered "the record will be closed as to what was going to go forward
today as of July 22nd; however, the record will be left open for those two
additional depositions that are scheduled."

At the August 3, 2016 hearing, the single commissioner admitted, over Employer's
objection, the medical questionnaire from Dr. Forrest, which was consistent with
Claimant's Southeastern Spine medical records. The questionnaire provided Dr.
Forrest's medical opinion that Claimant's "right arm systems of pain and numbness
to a reasonable degree of medical certainty, were most likely caused by his work
related accident of July 15, 2015." Dr. Forrest included an additional handwritten
note that Claimant's back symptoms were "aggravated by the accident and caused
to become symptomatic." Claimant was the only witness called at the hearing.

At the close of the hearing, the single commissioner stated she would take both
Employer's and Claimant's requests to leave the record open under advisement,
explaining:

With regard to any outstanding discovery, prior to today's
hearing, there had been correspondence requesting that
the Commission hold the record open to depose I believe
Dr. Dennis and Dr. Forrest. The initial request was made
by [Employer], and then subsequently there was a
request, I believe I have that in writing as well, made by
the Claimant. I will take both of those requests under
advisement and issue a written decision with the
understanding that there is one [deposition] currently set
for Monday.

By order dated October 4, 2016, the single commissioner found Claimant reached
maximum medical improvement (MMI) on February 4, 2016. She further found
he suffered an eight percent permanent partial disability to his back and awarded
future epidural injections for Claimant's back. The single commissioner held
Claimant suffered no permanent partial disability to his right arm and was not
entitled to further treatment to his arm. She terminated Claimant's temporary total
disability (TTD) benefits, awarding Employer a credit for all TTD paid after
February 4, 2016.

Despite her previous pre-hearing assurances that she would leave the record open
for the two medical expert depositions, the single commissioner ruled:

Prior to the hearing, [Employer], the moving party in this
case, requested the record be held open to depose the
Claimant's experts, Drs. Dennis and Forrest.
Additionally, Claimant also requested the record be held
open to depose Dr. Dennis & Dr. Forrest, their own
experts. Both requests are denied and the record is
closed as of August 3, 2016.1

Before the Appellate Panel, Claimant argued, in pertinent part, that the single
commissioner erred in closing the evidentiary record because Claimant had "no
reason to assume the [depositions] would not be completed" and he had "an
absolute right to rely on their submission." The Appellate Panel disagreed,
finding:

The Claimant's written Pre-hearing Brief was not
amended and filed; the Claimant made an oral request at
the . . . hearing to leave the record open for testimony of
Dr. Forrest and Dr. Dennis by deposition. The

1
The single commissioner's finding is factually incomplete as it fails to note that
Employer changed its position at the hearing, declining to proceed with the noticed
depositions, and makes no reference to the commissioner's pre-hearing statements
that she was granting both parties' requests to leave the record open for the specific
purpose of receiving the referenced deposition testimony.
[Employer] indicated that their desire to proceed with the
depositions was contingent on whether the Claimant's
oral request [to leave the record open] was to be granted.
The request to leave the record open is denied and the
record is closed as of August 3, 2016. We find [S.C.
Code Ann.] Reg[.] 67-611 [(Supp. 2018)] is applicable.

Claimant filed a motion to reconsider, arguing the Appellate Panel erroneously
relied on Regulation 67-611 as dispositive and misapplied Regulation 67-612,
which addresses the exchange and admission of expert reports in contested cases.
The Appellate Panel denied Claimant's motion to reconsider.

Standard of Review

The Administrative Procedures Act (APA) establishes the standard for our review
of Commission decisions. Lark v. Bi-Lo, Inc., 276 S.C. 130, 135, 276 S.E.2d 304,
306 (1981). "An appellate court has the power upon review to reverse or modify a
decision of an administrative agency if the findings and conclusions of the agency
are (1) affected by an error of law, (2) clearly erroneous in view of the reliable and
substantial evidence on the whole record, or (3) arbitrary or capricious or
characterized by abuse of discretion or a clearly unwarranted exercise of
discretion." James v. Anne's Inc., 390 S.C. 188, 192, 701 S.E.2d 730, 732 (2010);
S.C. Code Ann. §1-23-380(5)(d)-(e) (Supp. 2020).

Law and Analysis

Claimant argues the Appellate Panel erred in affirming the single commissioner's
order reversing her own decision to leave the record open for the two expert
medical depositions where the single commissioner had—on two pre-hearing
occasions—stated the record would remain open for this medical testimony. We
agree.

"An administrative or quasi judicial body is allowed a wide latitude of procedure
and not restricted to the strict rule of evidence adhered to in a judicial court."
Hallums v. Michelin Tire Corp., 308 S.C. 498, 504, 419 S.E.2d 235, 239 (Ct. App.
1992) (quoting Jacoby v. S.C. State Bd. of Naturopathic Exam'rs, 219 S.C. 66, 90,
64 S.E.2d 138, 149 (1951)). However, "[a]dministrative agencies are required to
meet minimum standards of due process. In cases where important decisions turn
on questions of fact, due process at least requires an opportunity to present
favorable witnesses." Smith v. S.C. Dep't of Mental Health, 329 S.C. 485, 500, 494
S.E.2d 630, 638 (Ct. App. 1997) (citations omitted).

We find the Appellate Panel erred in affirming the single commissioner's decision
to close the record as to Dr. Dennis's and Dr. Forrest's depositions after twice
stating she would, indeed, leave the record open. As an initial matter, we note the
Appellate Panel relied on the incorrect regulation as the basis for its decision
affirming the single commissioner because Regulation 67-611 addresses
prehearing briefs, not adjournment. Compare Reg. 67-611 (providing rules for the
filing of a workers' compensation pre-hearing brief), and Reg. 67-613 (providing a
commissioner may adjourn a hearing "to obtain additional evidence when the
evidence is in existence, identified, and necessary for the decision, but unavailable
at the time of the hearing"). While the record reflects Claimant failed to timely
serve his pre-hearing brief, Regulation 67-611 provides the remedies a single
commissioner may impose for such. Exclusion of proper evidence is not an
available sanction under Regulation 67-611. See Reg. 67-611 ("If an attorney fails
to file and serve a Form 58, the Commissioner may postpone the hearing according
to Reg. 67-613 or assess against an attorney by written order a fine not to exceed
one hundred dollars.").

Moreover, the Appellate Panel committed an error of law when it failed to properly
apply Regulation 67-613, which provides, "[a] party may move for adjournment at
a hearing . . . [t]o obtain additional evidence when the evidence is in existence,
identified, and necessary for the decision, but unavailable at the time of the
hearing." Reg. 67-613(C)(1). The granting of such an adjournment "rests in the
sound discretion of the hearing commissioner, whose ruling will not be disturbed
unless a clear abuse of discretion is shown." Trotter v. Trane Coil Facility, 393
S.C. 637, 645, 714 S.E.2d 289, 293 (2011). "Where a party is not prejudiced by
the denial of a motion for [an adjournment], reversal is not required." Id.

Here, Claimant was prejudiced by the single commissioner's post-hearing denial of
the deposition testimony she had—prior to the hearing—twice indicated would be
admitted. Claimant reasonably relied on the single commissioner's pre-hearing
statements that the record would remain open for the scheduled depositions. Prior
to the hearing, the single commissioner's office emailed both parties stating the
record would remain open for the two depositions. The single commissioner
subsequently stated the record would be closed as of July 22nd—with the specific
exception that it would remain open for the two scheduled depositions. When the
single commissioner reversed her prior proclamations, Claimant was left with no
meaningful opportunity to place the testimony of Dr. Dennis and Dr. Forrest
addressing his medical condition and potential treatment options into the record.

Dr. Forrest and Dr. Dennis were Claimant's latest treating physicians, and their
testimony was material to establishing Claimant's medical condition in light of the
contested case matters to be addressed, such as whether Claimant had reached
MMI with regard to his low back, whether Claimant sustained compensable
injuries to his legs, neck, and/or right elbow, and whether he needed further
treatment. As these two depositions were the only medical testimony Claimant
intended to offer, closing the record prejudiced his ability to present his claim. See
Means v. Gates, 348 S.C. 161, 171, 558 S.E.2d 921, 926 (Ct. App. 2001) (holding
"exclusion of the [expert testimony of a neuropsychologist] was not harmless error
as there was no equivalent testimony presented to this effect"). We disagree with
Employer's assertion that the admission of Dr. Forrest's questionnaire cured any
prejudice to Claimant caused by Employer's withdrawal of its request at the
hearing and the single commissioner's reversal of her pre-hearing decision after she
closed the evidence.

Significantly, we cannot understand how Employer could have been prejudiced by
leaving the record open for the depositions Employer requested to take and noticed
for after the hearing date. Employer is correct in stating Claimant did not list the
two remaining medical depositions in his pre-hearing brief; however, this argument
ignores the circumstances at play here—Claimant did not notice the depositions as
part of his case because Employer had already done so.2 Employer noticed the
depositions, designated them as exhibits in its pre-hearing filings, and asked that
the record be held open for the depositions. Claimant joined in Employer's request.
However, at the hearing, Employer initially stated it had not decided whether to
conduct the depositions and by the end of the hearing, after hearing Claimant's
testimony, stated its withdrawal of the request to take the depositions hinged on
whether Claimant's concurrent request for the depositions would be granted.

2
Claimant asserts its own listing of the depositions as pre-hearing exhibits would
have been improper because Regulation 67-612(D) provides "the non-moving
party shall submit only reports not submitted [as exhibits] by the moving party."
S.C. Code Regs. 67-612(D). As the consideration of Regulation 612(D) and
whether a deposition transcript is a "report" for purposes of the regulation is
unnecessary to our resolution of this appeal, we decline to address this argument.
While Employer is correct in stating Claimant could not force it to proceed with
and incur the costs of depositions it no longer deemed necessary, such is not
Claimant's request. Claimant's assignment of error is with the single
commissioner's reversal—after the close of the evidence—of her own pre-hearing
statements that the record would remain open for the depositions of Claimant's
most recent treating physicians. See e.g., Morgan v. JPS Automotives, 321 S.C.
201, 203–04, 467 S.E.2d 457, 459 (Ct. App. 1996) (reversing the denial of
adjournment request to leave the record open for consideration of expert's report
"in the interest of justice" and explaining where there is a timely request for
adjournment to provide additional proof of disability, such "an adjournment causes
no prejudice to the employer"); Brown v. LaFrance Indus., 286 S.C. 319, 333
S.E.2d 348 (Ct. App. 1985) (holding that unless employer would be prejudiced
thereby, opportunity should be afforded to claimant to reopen case for taking and
submission of doctor's deposition in the interests of justice).

We find the single commissioner's closing the record—and thereby restricting
Claimant from submitting the testimony of his medical experts—ran afoul of the
Workers' Compensation Commission's flexible evidentiary rules. See Hamilton v.
Bob Bennett Ford, 339 S.C. 68, 70, 528 S.E.2d 667, 668 (2000) (providing "great
liberality is exercised in permitting the introduction of evidence in proceedings
under [Workers'] Compensation Acts (quoting Ham v. Mullins Lumber Co., 193
S.C. 66, 7 S.E.2d 712 (1940))). The first deposition was scheduled to take place
three business days after the hearing and the second just two weeks later. Thus, the
single commissioner's decision to close the record, in contradiction of her prior
communications to the parties, was a prejudicial abuse of discretion, and the
Appellate Panel erred in affirming it. See Doe v. Batson, 345 S.C. 316, 322, 548
S.E.2d 854, 857 (2001) (finding respondent should have been permitted to
complete discovery depositions when the record did not "support a finding that
[respondent] was dilatory in pursuing discovery" and depositions were scheduled
for the week following the hearing).

REVERSED AND REMANDED.

HUFF, WILLIAMS, and MCDONALD, JJ., concur.