Provins v. Spirit Construction Services, Inc.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

James Provins, Employee/Deceased, Debra Provins,
Alleged Dependent, Claimants, Appellants,

v.

Spirit Construction Services, Inc., Employer, and
Insurance Company of the State of PA, Carrier,
Respondents.

Appellate Case No. 2018-000133

Appeal From The Workers' Compensation Commission

Opinion No. 5790
Heard September 22, 2020 – Filed January 13, 2021

AFFIRMED

Donald Loren Smith, of Attorney Office of Donald
Smith, of Anderson, for Appellants.

J. South Lewis, II, of Willson Jones Carter & Baxley,
P.A., of Greenville, for Respondents.

KONDUROS, J.: Debra Provins, widow of James Provins, appeals the decision of
the Appellate Panel of the South Carolina Workers' Compensation Commission
(the Commission) denying her claim for death benefits and finding Provins's death
was not causally related to the accident on the job. She also asserts the Appellate
Panel erred in (1) failing to find Spirit Construction Services, Inc., employer, and
Insurance Company of the State of PA, carrier, acted in bad faith in delaying
medical authorization, which was also against public policy; (2) giving greater
weight to one medical opinion over others; and (3) failing to find permanent
impairment. We affirm.

FACTS/PROCEDURAL HISTORY

Spirit Construction Services hired James Provins (Employee), a life-long
ironworker with thirty years' experience, to help construct a building in Anderson.
Approximately six months after starting this job, on January 24, 2012, Employee
and a coworker were together moving a corrugated sheet of galvanized steel when
Employee felt a pop in his right shoulder. The safety foreman drove Employee to
Spirit's clinic and a physician's assistant (PA) obtained an x-ray, diagnosed a
shoulder sprain, prescribed medications and exercises, and put Employee's right
arm in a sling.

One week later Employee returned to Spirit's PA. The PA's notes indicate
Employee continued to have pain and decreased mobility of his arm: "Patient states
he has had no improvement of symptoms. He states he is unable to lift arm above
his head and wakes up in the middle of the night if he rolls over onto his shoulder."
The PA requested a magnetic resonance imaging scan (MRI): "Signs and
symptoms suspicious for rotator cuff injury. Will have patient scheduled for MRI
of shoulder pending [workers' compensation] approval." However, the employer
and carrier (collectively, Employer) did not authorize the MRI. Employee
therefore independently obtained an MRI, which showed extensive tearing of the
rotator cuff. Employee was given several days of light duty work, until Spirit
ended Employee's employment indicating no additional light duty work was
available. Employee returned to his permanent home in Louisville, Kentucky.

Despite Spirit's PA's examination and recommendation to obtain an MRI and
despite the results of the independent MRI showing an extensive tear, Employer
denied approval for medical treatment and benefits. Employee then moved for a
hearing before the Commission to seek benefits and treatment.

On September 7, 2012, the single commissioner, noting Employee was "very
credible," found the accident was within the scope of Employee's employment and
required Employer to provide benefits and medical treatment to him in his home
state of Kentucky. Employee began treatment with an orthopedist, Frank
Bonnarens, M.D., the authorized medical provider in Kentucky where Employee
resided. Dr. Bonnarens performed rotator cuff surgery on May 15, 2013. The
surgical notes state Employee had "a massive tear of the rotator cuff" and a tear "of
the long head of the biceps." Following surgery, Dr. Bonnarens ordered physical
therapy. Employee faithfully followed those orders from June 7, 2013, through
August 23, 2013. The physical therapy notes repeatedly reference Employee's
continued pain and limitations.

Employee returned to Dr. Bonnarens on August 26, 2013, and reported "he fe[lt]
like he is not getting any better" and "his active range of motion is poor at this
point." Dr. Bonnarens then ordered additional weeks of therapy, followed by an
MRI performed on October 2, 2013. This second MRI revealed "a large recurrent
full thickness tear" and atrophy.

Both parties indicated Dr. Bonnarens recommended a second surgery; however,
after a telephone conference with Dr. Bonnarens on December 30, 2013, the
Employer chose to pursue an investigation to determine the cause of the re-tear.
Employee filed a motion on March 14, 2014, to compel Employer to provide
treatment, seeking coverage for the second surgery. In the motion, Employee
stated:

Due to the high risk of failure of rotator cuff surgeries,
[Employee] re-tore his rotator cuff without intentional
cause. Dr. Frank Bonnarens stated that this injury is
directly related to the injury [Employee] sustained while
under the scope of his employment on January 24, 2012[,]
during a phone conference on December 30, 2013. As
such, [Employer is] held responsible for providing
[Employee] with necessary treatment.

In response to Employee's motion, Employer described the opinion of Dr.
Bonnarens differently, asserting Dr. Bonnarens reported Employee had decreased
his alcohol use and suffered from alcohol withdrawal symptoms. Employer argued
Dr. Bonnarens indicated it was possible Employee's alcohol withdrawal symptoms
caused the re-tear, but without any evidence of a subsequent injury, it was his
opinion the re-tear was related to the 2012 work injury. Based on this telephone
conference with Dr. Bonnarens, Employer asked Employee to sign authorization
forms so it could obtain medical records from his providers in Kentucky to
investigate the re-tear further. Employee did not sign the medical authorization
forms. Employer moved to compel Employee to sign the forms.

On April 10, 2014, while the above motions were pending, Employee asked a
friend to drive him to the emergency room of a hospital, complaining of chest pain.
Employee was intubated and transferred to another hospital where he was admitted
to the intensive care unit. Employee died four days later on August 14, 2014. The
death certificate indicated the immediate cause of death was the result of "acute
respirator[y] failure" and "septic shock," and that "significant conditions
contributing to death" were "pneumonia, acute renal failure, [and] alcohol abuse."

After Employee's death, orthopedist Dr. Dwight A. Jacobus, who had not treated
Employee, opined Employee had a 10% to 13% disability to his shoulder. In
follow up correspondence, Dr. Jacobus further opined:

[W]hether the patient was not deceased and was able to
have a second surgery, he would still have a disability
percentage of at least 10% to 13% . . . . It is my opinion
that a second surgery would not relate to a diminished
percentage of disability because of the pathology that
was present at the time the first surgery was completed.

Debra Provins (Widow) filed a Form 52 claim for death benefits asserting
Employee's death was causally related to the work injury because the bad faith
denial of medical care by Employer caused Employee's increased use of alcohol,
which contributed to his death.1 The use of alcohol by Employee was chronicled
throughout the workers' compensation proceedings. The Record reveals that
Employee drank alcohol, often in excess, for much of his life. A single
commissioner heard Widow's claim for death benefits on December 5, 2016, in
which Widow testified about her husband's decline as he suffered the effects of the
injury and the re-tear of his shoulder, his inability to support his family, and his
change in demeanor. Widow testified Employee increased his alcohol
consumption after the 2012 accident and became withdrawn from his family,
spending time in his bedroom alone. In support of her claim for death benefits,
Widow submitted the opinion of a psychologist, David R. Price, Ph.D., and an
affidavit from a psychiatrist, Thomas V. Martin, M.D., both of whom indicated
Employee's death was causally related to the work injury, as well as the opinion of
Dr. Jacobus regarding the permanency rating. Employer submitted the opinion of
psychiatrist James C. Ballenger, M.D., who opined Employee's death was not
caused by the work injury, but caused by Employee's alcohol use.

In an order filed on March 6, 2017, the single commissioner concluded Widow did
not prove Employee's death was causally related to the work injury. The

1
Widow originally filed claims pursuant to Form 50, but withdrew those forms,
and ultimately filed a claim for death benefits pursuant to Form 52.
commissioner noted: "[t]here was no objective evidence—only subjective history
provided by Employee's relatives—that his drinking increased significantly after
his work injury." The commissioner found "[e]ven assuming Employee had
increased his alcohol intake after—and because of—the work injury, such would
not constitute a compensable work 'injury by accident' or death." The single
commissioner also noted the evidence showed Employee abused alcohol before the
work accident; Employee died before he reached maximum medical improvement
[MMI] and was still being treated by Dr. Bonnarens at the time of his death; and
"[t]here was no bad faith denial of medical treatment or unreasonable delay by
[Employer]."

Widow appealed to the Appellate Panel. After a hearing on November 14, 2017,
the Appellate Panel agreed with the single commissioner and found Employee died
before reaching MMI; "[t]here was no bad faith denial of medical treatment or
unreasonable delay by [Employer]"; and prior to the work-related injury, Employee
"suffered from a significant alcohol abuse problem." The Appellate Panel
expressly found none of the medical reports submitted stated Employee's alcohol
use changed after the accident, and Employee's death was "multifactorial, to
include sepsis, respiratory failure, multi-organ decompensation, and alcohol
abuse." The Appellate Panel concluded Employee's death was not caused by the
injury he sustained at work in 2012. This appeal followed.

STANDARD OF REVIEW

The Administrative Procedures Act ("APA") governs this
[c]ourt's review of the [Appellate Panel's] decisions. We
can reverse or modify the [Appellate Panel's] decision in
this case only if [the claimant's] substantial rights have
been prejudiced because the decision is affected by an
error of law or is clearly erroneous in view of the
reliable, probative, and substantial evidence on the whole
record. Substantial evidence is not a mere scintilla of
evidence nor evidence viewed from one side, but such
evidence, when the whole record is considered, as would
allow reasonable minds to reach the conclusion the
[Appellate Panel] reached.

Shealy v. Aiken County, 341 S.C. 448, 454-55, 535 S.E.2d 438, 442 (2000)
(citations omitted).
"[T]he [Appellate Panel] is the ultimate fact finder. The final determination of
witness credibility and the weight to be accorded evidence is reserved to the
[Appellate Panel]. It is not the task of this [c]ourt to weigh the evidence as found
by the [Appellate Panel]." Id. at 455, 535 S.E.2d at 442 (citations omitted).

LAW/ANALYSIS

I. Death Benefits

Widow asserts the Appellate Panel erred in denying her claim for death benefits,
contending Employee's death "was a consequence of [Employer's] delay in [the]
provision of medical assistance and grant of benefits to [Employee]." Widow
contends the accident and "[Employer's] continued refusal to provide the necessary
and timely medical assistance[] triggered and/or aggravated [Employee's] state of
decline." Widow contends "[h]e lost hope of ever recovering" and "[a]nyone in his
condition would have suffered extreme depression, documented or not." We
disagree.

Employer contends no evidence was presented to the Appellate Panel of
Employee's depression from the injury and there was no diagnosis of depression
from the treating physician as a result of the work-related accident. Employer also
argues Employee abused alcohol throughout his life, including before the accident.
Finally, Employer asserts Employee's use of alcohol was an intentional act on his
part, and not caused by Employer. The Employer's expert, Dr. Ballenger, opined
Employee's death was not causally related to the work injury and the evidence
revealed Employee died as a result of his lifelong consumption of alcohol.

The Appellate Panel reviewed the evidence and found that prior to the work injury,
Employee abused alcohol for most of his life, he undertook the risk of heavy
alcohol use, and no medical evidence indicated Employee's use of alcohol
increased after the accident. This evidence included the consultation report when
Employee went to the emergency room four days before his death, which stated:
"[t]he patient is a 52-year-old male who is an alcoholic and drinks about half a pint
of vodka every day for most of his life" and medical records from 2009, when
Employee was hospitalized during a difficult time in his life, which stated:
"[h]eavy alcohol use. . . . Patient is a longstanding alcoholic (16 to 18 beers a day,
½ [pint] to 1 pint[)]." Furthermore, the Appellate Panel referenced Dr. Ballenger's
opinion, noting Employee "suffered from a progressively worsening alcoholism
over the course of his adult life," and such was "consistent with the medical
records, both prior to and subsequent to the work injury." The Appellate Panel
also stated: "[T]here is not a single medical record, either with the treating workers'
compensation doctors or his personal doctor/hospitals in Kentucky, which indicate
that Employee's alcohol consumption increased after the work injury."

We believe the Record contains substantial evidence to support the Appellate
Panel's denial of Widow's claim for death benefits. See Shealy, 341 S.C. at 455,
535 S.E.2d at 442 (citations omitted) ("In workers' compensation cases, the
[Appellate Panel] is the ultimate fact finder. The final determination of witness
credibility and the weight to be accorded evidence is reserved to the [Appellate
Panel]. It is not the task of this [c]ourt to weigh the evidence as found by the
[Appellate Panel]."). Accordingly, we affirm the Appellate Panel's denial of the
claim for death benefits.

II. Weight of Medical Evidence

Widow also contends the Appellate Panel erred in giving more weight to one
physician's opinion over the opinion of other medical experts. We disagree.

"Expert medical testimony is designed to aid the Commission in coming to the
correct conclusion; therefore, the Commission determines the weight and credit to
be given to the expert testimony." Tiller v. Nat'l Health Care Ctr. of Sumter, 334
S.C. 333, 340, 513 S.E.2d 843, 846 (1999). In addition, "the Commission is given
discretion to weigh and consider all the evidence, both lay and expert, when
deciding whether causation has been established." Id. at 339-40, 513 S.E.2d at
846.

"Where there is conflicting medical evidence . . . the findings of fact of the
[C]ommission are conclusive." Nettles v. Spartanburg Sch. Dist. # 7, 341 S.C.
580, 592, 535 S.E.2d 146, 152 (Ct. App. 2000). "The existence of any conflicting
opinions between the doctors is a matter left to the Commission." Harbin v.
Owens-Corning Fiberglas, 316 S.C. 423, 427, 450 S.E.2d 112, 114 (Ct. App.
1994). Furthermore, "the possibility of drawing two inconsistent conclusions from
the evidence does not prevent [the Commission's] finding from being supported by
substantial evidence." Tiller, 334 S.C. at 338, 513 S.E.2d at 845.

We find the Appellate Panel relied on substantial evidence to support its decision
to give greater weight to the opinion of Employer's expert, psychiatrist Dr.
Ballenger. The decision of the Appellate Panel referenced Dr. Ballenger's
extensive credentials and lengthy career, as well as his more complete review of
the medical records. The Appellate Panel also set forth its reasoning for giving
less weight to other medical experts, finding Dr. Martin's affidavit unreliable
because it relied on "subjective history" and noting he did not review medical
records of Employee's alcohol use prior to the work injury. The Appellate Panel
found Dr. Price, a clinical psychologist, unqualified to provide a medical opinion
regarding a cause of death and that his opinion was also based upon limited
information.

The law expressly gives to the Appellate Panel the full authority to make
determinations regarding the credibility of witnesses and the weight to be afforded
their opinions. Accordingly, we find no error in the Appellate Panel's decision.

III. Permanent Impairment Rating

Widow contends the Appellate Panel erred in failing to award Employee a
permanency rating. We disagree.

The single commissioner found Employee "passed away . . . before he reached
[MMI] for his right shoulder," and "had not been released from care for his right
shoulder, and was still undergoing treatment with Dr. Bonnarens" at the time of his
death. The single commissioner made no finding regarding a permanency rating.
Widow submitted a memorandum to the Appellate Panel, which included raising
the issue whether the single commissioner erred in finding Employee did not have
a permanent injury. However, the Appellate Panel found Employee was still
receiving treatment and had not been released from care or reached MMI at the
time of his death. The Appellate Panel did not make a specific finding regarding a
permanency rating.

We note that while Dr. Jacobus's opinion was included in the submission of
exhibits to the Commission, Widow did not raise the issue of a permanency rating
to the Commission at the hearing. Widow was only before the Commission on a
Form 52 seeking death benefits; she had previously withdrawn her Form 50
notices. Accordingly, we find no error by the Appellate Panel.

IV. Bad Faith and Public Policy

Widow asserts the Appellate Panel erred in failing to find Employer acted in bad
faith by delaying authorization for medical treatment. Widow contends Employer
acted in bad faith by refusing to authorize the initial MRI and need for surgery,
asserting this delay caused Employee "irreparable damage" to his shoulder.
Widow also contends Employer acted in bad faith by denying authorization for the
proposed second surgery to repair the re-tear. Additionally, Widow asserts the
Appellate Panel "contradicted public policy by fostering and facilitating bad faith
denial of benefits."

Treatment for the first surgery was addressed by the single commissioner's order of
September 7, 2012, providing Employee medical treatment in Louisville,
Kentucky, and awarding Employee temporary total disability until he reached
MMI.2

When Widow later filed a Form 52 seeking death benefits, both the decisions of
the single commissioner on March 6, 2017, and of the Appellate Panel on January
11, 2018, included findings of fact that there was no bad faith denial by the
Employer and that Employer had requested medical releases to investigate the need
for the second surgery. More specifically, in its order of January 11, 2018, the
Appellate Panel found: "There was no bad faith denial of medical treatment or
unreasonable delay by [Employer]. The evidence . . . indicate[s] that another
surgery had been recommended by Dr. Bonnarens (for a recurrent rotator cuff tear)
and [Employer] requested medical releases be signed to further investigate
causation of same."

In response to Widow's bad faith argument, Employer contends an allegation of
bad faith is "simply unfounded" and "there is no recognizable claim for bad faith
within the South Carolina workers' compensation arena." Employer also argues
the evidence supported the need for medical authorization documents from
Employee because the Record contained no definite medical opinion that related
the re-tear of the rotator cuff to the work injury.

We note that at the time of Employee's death, the parties had outstanding motions
regarding Employee's request for authorization for the second surgery and
Employer's request Employee sign medical authorizations. Sadly, Employee
passed away before the Commission could rule on these motions.

In finding Employer did not deny medical treatment in bad faith or unreasonably
delay authorizing treatment, the Appellate Panel made the following finding of
fact: "[t]he evidence, including emails among counsel included in [Employer's]
exhibits, indicate that another surgery had been recommended by Dr. Bonnarens

2
The single commissioner's ruling dated September 7, 2012, in which Employee
sought benefits and medical treatment is not the subject of this appeal.
(for a recurrent rotator cuff tear) and [Employer] requested medical releases be
signed to further investigate causation of same."

We affirm the decision of the Appellate Panel finding there was no bad faith denial
of medical care by Employer. We point to our jurisprudence which established the
statutory system of workers' compensation law to address all claims made by an
employee against his employer for a work-related injury. As set forth in the
Workers' Compensation Act:

The rights and remedies granted by this title to an
employee when he and his employer have accepted the
provisions of this title, respectively, to pay and accept
compensation on account of personal injury or death by
accident, shall exclude all other rights and remedies of
such employee, his personal representative, parents,
dependents or next of kin as against his employer, at
common law or otherwise, on account of such injury, loss
of service or death.

S.C. Code Ann. § 42-1-540 (2015).

This court addressed the claim of an employee seeking damages in circuit court for
his employer's bad faith denial of benefits in Cook v. Mack's Transfer & Storage,
291 S.C. 84, 352 S.E.2d 296 (Ct. App. 1986). In Cook, this court determined all
disputes in a workers' compensation matter must be directed to the Commission by
statute: "[I]f an employer and injured employee fail to reach an agreement in
regard to compensation within fourteen days after the employer has knowledge of
the injury, then the worker may make application to the Commission for a hearing
in regard to the matters at issue and for ruling thereon." Id. at 87-88, 352 S.E.2d at
298.

The court went on to confirm the Commission has exclusive jurisdiction to decide
questions an employee may raise about his employer's denial of benefits, and
"[w]hether the denial is willful, in bad faith, negligent, or the result of a good faith
difference is immaterial to the question of the Commission’s exclusive
jurisdiction." Id. at 88, 352 S.E.2d at 299. In Cook, this court recognized the
exclusive jurisdiction of the Commission means an employee does not have the
same causes of action available to him as he would in common law: "a worker
whose injury is compensable exclusively under the workers' compensation law
may be at a disadvantage compared to a person with access to modern tort
remedies." Id. at 92, 352 S.E.2d at 301.

As the Form 50 notices were withdrawn, and substantial evidence supports the
decision of the Appellate Panel to deny death benefits, we need not rule on the
question of any bad faith failure of Employer to authorize treatment.

CONCLUSION

We conclude the Record contains substantial evidence to support the Appellate
Panel's decision. Accordingly, the Appellate Panel's decision is

AFFIRMED.

LOCKEMY, C.J., and MCDONALD, J., concur.