Thigpen v. Lexington Medical Center

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

Brenda Thigpen, Appellant/Respondent,

v.

Lexington
Medical Center and Companion Third Party Administrators, Respondents/Appellants.

Appeal from the Appellate Panel

South Carolina Workers' Compensation Commission

Unpublished Opinion No. 2012-UP-196

Heard January 26, 2012 – Filed March 21,
2012   

AFFIRMED

Robert Norris Hill, of Newberry, and Thomas
Pinckney Bellinger, of Lexington, for Appellant-Respondent.

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

PER CURIAM:  In
this Workers' Compensation case, Brenda
Thigpen appeals from an order of the Appellate Panel of the South Carolina
Workers' Compensation Commission (Commission) reversing the single commissioner's
finding that Thigpen's claim for bi-lateral carpal tunnel syndrome was compensable
as a work-related repetitive trauma injury (RTI).  Lexington Medical Center
(Employer) and Companion Third Party Administrators (Carrier) appeal the
Commission's affirmance of the single commissioner's finding that Thigpen gave
timely notice, pursuant to S.C. Code Ann. § 42-15-20.  We affirm the
Commission's order in its entirety.

FACTS

Thigpen works as
a housekeeper at Lexington Medical Center where she is responsible for the
daily cleaning of eighteen patient rooms and public areas.  Her work activities include mopping, scrubbing,
changing bed linens, vacuuming, moving furniture, and bagging trash.  Thigpen
began experiencing "numbness, sleepiness, [and] pain in the tip of [her]
finger" while working on April 30, 2008.  She notified her supervisor of
these symptoms and, two months later, she saw her family physician, Dr. William
Korman, for concerns regarding hypertension and hand pain.  Dr. Korman
suspected carpal tunnel syndrome was causing Thigpen's hand pain, and he
referred Thigpen to Dr. Daniel Westerkam for nerve conduction studies.

On July 9, 2008,
Dr. Westerkam performed nerve conduction studies; thereafter, he informed
Thigpen that she had "moderate" carpal tunnel syndrome on the right
side and "mild" carpal tunnel syndrome on the left side.  On July 31,
2008, Thigpen filed an accident report with Employer stating she had developed
carpal tunnel symptoms in both wrists and her symptoms had started two months
earlier.  On September 24, 2008, Thigpen filed a Form 50 alleging she had
developed bilateral carpal tunnel syndrome as a result of work-related RTI to
her wrists. 

After Thigpen's
symptoms worsened, Dr. Korman referred her to orthopedic surgeon Michael
Ugino.  On October 14, 2008, Dr. Ugino performed a right carpal tunnel
release.  On October 31, 2008, Employer filed a Form 51 contending: (1) Thigpen
had failed to give timely notice of her alleged RTI; and (2) Thigpen's carpal
tunnel syndrome was the result of a pre-existing disability that was unrelated
to her work activities.  On January 5, 2009, Dr. Ugino released Thigpen to
return to regular-duty work. 

LAW/ANALYSIS

1.     Notice of
Repetitive Trauma Injury

On appeal,
Employer contends the Commission erred in finding Thigpen had given timely
notice, pursuant to section 42-15-20, which states: 

In the
case of repetitive trauma, notice must be given by the employee within ninety
days of the date the employee discovered, or could have discovered by
exercising reasonable diligence, that his condition is compensable, unless
reasonable excuse is made to the satisfaction of the commission for not giving
timely notice, and the commission is satisfied that the employer has not been
unduly prejudiced thereby. 

S.C. Code Ann. § 42-15-20(C)
(Supp. 2011); see also King v. International Knife and Saw-Florence,
395 S.C. 437, 444, 718 S.E.2d 227, 231 (Ct. App. 2011) ("[A] work-related [RTI]
does not become compensable, and the ninety-day reporting clock does not start,
until the injured employee discovers or should discover he qualifies to receive
benefits for medical care, treatment, or disability due to his condition."). 

We agree with the
Commission's finding that "notice
began to run at the earliest when [Thigpen] went to the doctor on June 27,
2008."  Because Thigpen provided notice on July 31, 2008 by filing an
accident report, we affirm the Commission's determination that notice was
timely.

2.     Compensability
of Repetitive Trauma Injury

Thigpen contends
the Commission erred in determining her claim for RTI is not compensable
because no causal connection exists between her work activities and the
development of her carpal tunnel syndrome.

Compensability
of RTI is determined pursuant to section 42-1-172: 

(A) "Repetitive
trauma injury" means an injury which is gradual in onset and caused by the
cumulative effects of repetitive traumatic events.  Compensability of a repetitive
trauma injury must be determined only under the provisions of this statute.

(B) An
injury is not considered a compensable repetitive trauma injury unless a
commissioner makes a specific finding of fact by a preponderance of the
evidence of a causal connection that is established by medical evidence
between the repetitive activities that occurred while the employee was engaged
in the regular duties of his employment and the injury.

(C) As
used in this section, "medical evidence" means expert opinion or
testimony stated to a reasonable degree of medical certainty, documents,
records, or other material that is offered by a licensed and qualified medical
physician.

(D) A repetitive
trauma injury is considered to arise out of employment only if it is
established by medical evidence that there is a direct causal relationship
between the condition under which the work is performed and the injury.

S.C.
Code Ann. § 42-1-172(A)-(D) (Supp. 2011) (emphases added). 

Both Dr. Korman and Dr. Ugino
distinguished "causation" of Thigpen's carpal tunnel syndrome from
the potential "aggravation" of an underlying condition.  Dr. Korman,
who stated he was not an expert on carpal tunnel syndrome, testified that
Thigpen's job duties could "potentially exacerbate" her carpal tunnel
syndrome.  Dr. Ugino, the orthopedic surgeon who performed Thigpen's surgery,
testified that he had not given any opinion on the causation of Thigpen's
carpal tunnel syndrome, he could not say what caused it, and he could not state
how long the condition had been present.  Dr. Ugino stated: "[I'm] not
certain as to the causation of her carpal tunnel syndrome, but her job
activities, if she does a lot of repetitive flexion, extension activities most
probably can aggravate any preexisting problems." 

We affirm the
Commission's determination that Thigpen failed to demonstrate, by medical
evidence, the existence of a direct causal connection between the repetitive
activities of her work and her carpal tunnel syndrome. 

CONCLUSION

For the foregoing
reasons, the Commission's order is

AFFIRMED.

SHORT,
WILLIAMS, and GEATHERS, JJ., concur.