Russell v. DHEC

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

Robert Russell, Employee/Claimant, Respondent,

v.

Department of Health and Environmental Control,
Employer, and The State Accident Fund, Carrier,
Appellants.

Appellate Case No. 2012-211873

Appeal From Berkeley County
Kristi Lea Harrington, Circuit Court Judge

Unpublished Opinion No. 2013-UP-183
Heard April 10, 2013 – Filed May 8, 2013

AFFIRMED

Margaret M. Urbanic, of Clawson & Staubes, LLC, of
Charleston, and Ellen H. Goodwin, of State Accident
Fund, of Columbia, for Appellants.

J. David Murrell, of Murrell Law Firm, LLC, of
Charleston, for Respondent.
PER CURIAM: In this workers' compensation action, the Department of Health
and Environmental Control (DHEC) and The State Accident Fund (the Fund)
(collectively known as Appellants) appeal the circuit court's decision to affirm the
South Carolina Workers' Compensation Appellate Panel's (Appellate Panel)
finding that Robert Russell was permanently and totally disabled and entitled to
compensation pursuant to section 42-9-400 of the South Carolina Code (1985 &
Supp. 2005). We affirm pursuant to Rule 220(b), SCACR, and the following
authorities:

1. As to whether the circuit court erred, as a matter of law, in affirming the
Appellate Panel's finding that Russell was entitled to compensation pursuant to
section 42-9-400: § 42-9-400(a) ("If an employee who has a permanent physical
impairment from any cause or origin incurs a subsequent disability from injury by
accident arising out of and in the course of his employment, resulting in
compensation and medical payments liability or either, for disability that is
substantially greater, by reason of the combined effects of the preexisting
impairment and subsequent injury or by reason of the aggravation of the
preexisting impairment, than that which would have resulted from the subsequent
injury alone, the employer or his insurance carrier shall in the first instance pay all
awards of compensation and medical benefits provided by this Title; but such
employer or his insurance carrier shall be reimbursed from the Second Injury Fund
. . . .") (emphasis added)1; Ellison v. Frigidaire Home Prods., 371 S.C. 159, 164,
638 S.E.2d 664, 666 (2006) ("There [was] no requirement that the pre-existing
condition aggravated the injury, or that the injury aggravated the pre-existing
condition, so long as there [was] a greater disability simply from the 'combined
effects' of the injury and the pre-existing condition.").

2. As to whether the circuit court erred in affirming the Appellate Panel's finding
that Russell was permanently and totally disabled: S.C. Code Ann. § 1-23-
380(5)(d), (e) (Supp. 2012) (stating the appellate court may reverse or modify the

1
Section 42-9-400(a) was later amended to refer to a "disability that is
substantially greater and is caused by aggravation of the preexisting impairment
than that which would have resulted from the subsequent injury alone," and the
language regarding "combined effects" was omitted. Act No. 111, Pt. II, § 3, 2007
S.C. Acts 599 (emphasis added). However, this change is applicable only to
injuries that occur on or after July 1, 2007, and the parties do not argue the new
version applies here.
Appellate Panel's decision 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); Bartley v. Allendale Cnty. Sch. Dist., 392 S.C. 300, 306, 709 S.E.2d 619,
622 (2011) (stating the Appellate Panel is the ultimate fact finder in workers'
compensation cases and as a general rule, this court must affirm the findings of fact
made by the Appellate Panel if they are supported by substantial evidence); id.
("'Substantial evidence is that evidence which, in considering the record as a
whole, would allow reasonable minds to reach the conclusion the [Appellate Panel]
reached.'" (quoting Hill v. Eagle Motor Lines, 373 S.C. 422, 436, 645 S.E.2d 424,
431 (2007))); id. ("'The possibility of drawing two inconsistent conclusions from
the evidence does not prevent the [Appellate Panel's] finding from being supported
by substantial evidence.'" (quoting Hill, 373 S.C. at 436, 645 S.E.2d at 431)).

3. As to whether the circuit court erred in affirming the Appellate Panel's finding
that Appellants were responsible for medical costs related to Russell's
psychological condition: § 42-9-400(a) (stating "the employer or his insurance
carrier shall in the first instance pay all awards of compensation and medical
benefits provided by this Title; but such employer or his insurance carrier shall be
reimbursed from the Second Injury Fund . . . ."); Ellison, 371 S.C. at 164, 638
S.E.2d at 666 ("Providing for an employer's reimbursement from the [Second
Injury] Fund for the 'combined effects' of a workplace injury and pre-existing
conditions would be futile unless a claimant could actually make such a recovery
in the first place.").

AFFIRMED.

FEW, C.J., and GEATHERS and LOCKEMY, JJ., concur.