Carlson v. Poston Packing Company, 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 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Daryl Carlson, Appellant,

v.

Poston Packing
Company, Inc., Employer, and Capital City Insurance Company, Carrier, Respondents.

Appeal From Florence County

Thomas A. Russo, Circuit Court Judge

Unpublished Opinion No.  2008-UP-243

Submitted March 1, 2008 – Filed April 23,
2008

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Mary Cecelia Robinson and William L.
Smith, II, both of Columbia, for Appellant.

Grady L. Beard, of Columbia, for
Respondents.

PER CURIAM:  In
this workers’ compensation case, Darryl Carlson sought benefits from his
employer, Poston Packing Company, Inc., and its carrier (collectively, Poston)
after he slipped and fell while loading crates of food into a freezer.  The
Single Commissioner found Carlson suffered multiple injuries to his groin due
to the accident, including an inguinal hernia diagnosed eight months after the
fall, as well as a psychological injury.  The Single Commissioner further found
Carlson had not yet reached maximum medical improvement (MMI).  An Appellate
Panel of the South Carolina Workers’ Compensation Commission (the Commission)
upheld the determination that Carlson suffered injuries to his groin, but
specifically reversed the portions of the order finding Carlson had suffered an
inguinal hernia and a psychological injury as a result of the accident and that
he had not reached MMI.  The circuit court affirmed the Commission’s order, and
Carlson appeals.  We affirm insofar as there is substantial evidence to support
the Commission’s determination that Carlson has not established his  claim for
a psychological injury. We reverse the Commission’s findings that Carlson has
not established his claim for a hernia and that Carlson has reached MMI. 
Finally, we remand this case to the circuit court for it to direct the
Commission to make a new determination as to MMI in light of our holding.[1]

The South Carolina Administrative Procedures Act (APA) establishes
the standard for judicial review of decisions of the Commission.  West v. Alliance Capital, 368 S.C. 246, 628 S.E.2d 279 (Ct. App. 2006).  Under the APA, an appellate court may reverse or modify the
decision of the Commission if the Commission’s findings, inferences,
conclusions, or decisions are affected by an error of law or are clearly
erroneous in view of the substantial evidence in the whole record.  Id.; see also S.C. Code Ann. § 1-23-380(A)(5)(d) & (e) (Supp. 2007). 
Substantial evidence is evidence that, considering the record as a whole, would
allow reasonable minds to reach the conclusion reached by the Commission.  Rodney
v. Michelin Tire Corp., 320 S.C. 515, 466 S.E.2d 357 (1996).

The
Commission is the ultimate fact-finder in workers’ compensation cases and is
not bound by the Single Commissioner’s findings of fact.  Brayboy v. Clark
Heating Co., 306 S.C. 56, 409 S.E.2d 767 (1991); Ross v. Am. Red Cross,
298 S.C. 490, 381 S.E.2d 728 (1989).  The final determination of witness
credibility and the weight to be accorded evidence is reserved to the
Commission.  Parsons v. Georgetown Steel, 318 S.C. 63, 456 S.E.2d 366
(1995).  We may not substitute our judgment for that of the Commission
concerning the weight of the evidence on questions of fact.  See S.C.
Code Ann. § 1-23-380(A)(5) (Supp. 2007).  The possibility of drawing two
inconsistent conclusions from the evidence does not mean the agency’s
conclusion is unsupported by substantial evidence.  Ellis v. Spartan Mills,
276 S.C. 216, 277 S.E.2d 590 (1981).

1.  Consideration
of medical report and denial of claim for psychological injury (Carlson’s
Issues I & II).  We hold the
Commission properly determined the Single Commissioner erred in excluding from
evidence the medical report of Dr. Selman Watson.  We likewise hold the
Commission did not err in relying on the report and using it as a basis to deny
Carlson’s claim for a psychological injury. 

Carlson’s accident occurred on September 8, 2003.[2]  Poston sent Carlson to Dr. Watson on October 22, 2004 for a
psychological evaluation because Carlson was claiming that he sustained a
psychological injury as a result of his accident.  The Commission noted Poston
stated in its Prehearing Brief that it had not received a copy of the report,
but that it reserved the right to submit it at the hearing.  At the hearing,
the Single Commissioner did not allow the report in after Carlson objected,
stating it was not timely because if the report were allowed in, then he would
have to allow additional time for the doctor to be deposed and it would
“clutter up the system.”  The Commission ruled it was improper for the Single
Commissioner not to allow the report because Carlson was on notice that Poston
was waiting for the report, Carlson was the participant in the evaluation and
thus was clearly aware that a report would be forthcoming, and Poston had no
control over when the doctor issued his report.  We find no abuse of discretion
with the Commission’s determination that Carlson was on notice about the report
prior to the hearing, as well as the Commission’s consideration of the report.

Likewise, the Commission did not err in then considering this
report as a basis for denying Carlson’s claim for a psychological injury.  Although there is certainly evidence supporting
Carlson’s claims, there is contrary evidence in the record that the Commission
relied upon to support its decision to reverse the Single Commissioner’s
finding Carlson suffered a compensable psychological claim.  The Commission
noted that Dr. Watson opined in his report of October 22, 2004 that although
Carlson suffered from some anxiety, “it does not rise to a level that would
warrant specialized professional attention or the need for medication.”  Further,
the Commission noted “Dr. Watson opined that there was reason to suspect some
exaggeration of the claimant’s condition as tested by the PAI profile.”  In
addition, “Dr. Watson opined the claimant suffered from a personality disorder
that had developed over quite some time.”  Because we have found no error in
the Commission’s finding that the Single Commissioner should not have excluded
the report, the Commission properly considered Dr. Watson’s opinions. 
Accordingly, based on our limited scope of review, we hold there is substantial
evidence to support the decision of the Commission.

2.  Denial of
compensation for inguinal hernia (Carlson’s Issue III).  We hold the Commission
erred in reversing the Single Commissioner’s finding that Carlson’s inguinal
hernia was caused by his work-related accident of September 8, 2003.  Our
holding in this regard is made with a profound appreciation of our limited and
highly-deferential scope of
appellate review.  Yet the concept of “substantial evidence” must have some
meaning, and having carefully reviewed the record, we are convinced that the
evidence points to the inescapable conclusion that Carlson’s inguinal hernia
was caused by his work-related accident, as found by the Single Commissioner
and the dissenting member of the Commission.  We base this decision, in part,
on our determination that the Commission committed a legal error in its
characterization of the evidence.  And, as noted, substantial evidence does not
support the Commission’s decision in this regard.  See S.C. Code Ann. §
1-23-380(A)(5)(d) & (e) (Supp. 2007) (stating an appellate court may
reverse the Commission when its 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). 

Carlson’s authorized treating physicians were Dr. Carolyn Becker
Reynolds of McLeod Occupational Health Associates and Dr. E. Daniel Guyton of
Florence Urological Associates.  Carlson was diagnosed with a hernia in May
2004 and had surgery to alleviate it in September 2004.  The Single Commissioner, citing the testimony of the
treating physicians, particularly Dr. Reynolds, concluded Carlson’s hernia was
caused by his work-related accident.  The Single Commissioner noted there was a
delay in the diagnosis of Carlson’s hernia due to the fact that he was not
given the particular type of ultrasound that would diagnose this condition.  In
addition, Carlson was unable to undergo the physical exam necessary to discover
the hernia in the early stages of his injury.[3] 
Dr. Reynolds testified that she was “greater than
ninety percent certain that this [hernia] was [incurred] as a result of his
[Carlson’s] initial injury.”  The Single Commissioner observed:

She [Dr. Reynolds] further explained that the hernia
was not discovered after the initial injury because the injury to his scrotum
prevented digital examination of the inguinal area and masked the hernia
symptoms, and that the previous ultrasounds had not examined peristaltic
movement. . . .  Dr. Reynolds was . . . adamant in her opinion that the
September 8, 2003 injury caused Mr. Carlson’s hernia. 

McLeod
Occupational Health Associates had referred Carlson to Dr. E. Daniel Guyton of
Florence Urological Associates for treatment of the separate injury to his
scrotum.  Dr. Guyton diagnosed Carlson as having an injury to his left
epididymis (spermatic cord) and gave him conservative treatment.  When Carlson
continued to have pain, Dr. Guyton surgically removed Carlson’s left epididymis
in September 2004.  Dr. Guyton stated Carlson’s work injury caused a hematoma
to form in Carlson’s left epidydimis and when it resolved, it left scar tissue
that caused some pain. 

The
Single Commissioner noted there was no evidence in the record that Carlson’s
hernia pre-existed his September 8, 2003 accident, and there was no evidence in
the record of any cause other than this accident.  The Single Commissioner
further found that Carlson was “not at MMI.” 

In a two-to-one decision, the Commission reversed the Single
Commissioner’s finding that Carlson’s inguinal hernia was a compensable injury
caused by his work-related accident.  The Commission correctly stated that
under section 42-9-40 of the South Carolina Code, a claimant has the burden of
“definitely” proving the following: 

(1)  That there was an injury resulting in hernia or rupture;

(2)  That the hernia or rupture appeared suddenly;

(3)  That it was accompanied by pain;

(4)  That the hernia or rupture immediately followed an accident;
and

(5)  That the hernia or rupture did not exist prior to the
accident for which compensation is claimed.

S.C. Code Ann. §
42-9-40 (1985). 

In reversing the Single Commissioner, a majority of the Commission
inexplicably stated Dr. Reynolds “was unable to state to within a reasonable
degree of medical certainty that the claimant’s hernia in May of 2004, was the
result of his work injury on September 8, 2003.”  This purported finding simply
finds no evidentiary support in the record.  This alleged uncertainty on
Dr. Reynolds’ part is a mischaracterization of her testimony.  Dr. Reynolds
expressly testified that she was “greater than ninety percent certain that this
[hernia] was [incurred] as a result of his [Carlson’s] initial injury.”  She stated it had gone undiagnosed and was “the
missing piece of the puzzle” as to what was causing Carlson’s continuing pain.     

Although the Commission was free to disbelieve Dr. Reynold’s
testimony, it did not specifically find that her testimony was lacking
credibility or reject it as otherwise flawed.  Rather, the Commission asserted
that she failed to state an opinion to within a reasonable degree of medical
certainty.  We believe this mischaracterization of the testimony is legal error
that affected the result in this case.  Cf. Seaboard Sys. R.R., Inc.
v. Pub. Serv. Comm’n, 290 S.C. 275, 349 S.E.2d 896 (Ct. App. 1986)
(recognizing the general principles that the Public Service Commission as an
agency was responsible for determining the credibility of witnesses and that it
was not required to accept testimony even if it were uncontradicted, but
holding these principles “are not applicable in the instant case because the
Commission did not indicate anywhere in its order that it rejected the evidence
presented by Seaboard as not credible”; the appellate court concluded the
Commission’s decision was not supported by substantial evidence).

Moreover, the Commission based its finding, in large part, on the testimony
of Dr. Guyton, who treated the injury to Carlson’s epididymis.  The Commission
stated, “Importantly, Dr. Guyton testified . . . the claimant could have
sustained another accident which led to his hernia condition.”  Upon reviewing
his testimony, we note Dr. Guyton acknowledged that he did not diagnose
Carlson’s hernia, did not treat him for a hernia, and he did not know when
Carlson sustained his hernia.  Dr. Guyton stated the hernia could have been
caused by his work-related accident or it was “possible” that Carlson’s hernia
was incurred after Carlson’s 2003 accident.  Dr. Guyton explained that
sometimes hernias “are more subtle and it takes somebody with more expertise in
dealing with hernias to determine whether that is, you know, symptomatic or not
[and] whether the pain you are having is a hernia or not.”  When asked about when Carlson’s hernia developed, Dr.
Guyton stated that he would “have to defer to general surgery [sic] who does
hernia.” More to the point, Dr. Guyton made it crystal clear that
his treatment of Carlson was unrelated to the hernia, for Dr. Guyton does not
specifically treat hernias in his practice. 

We do not fault the Commission for assigning weight to the
testimony of Dr. Guyton in its quest to deny compensability for Carlson’s
hernia.  Our concern is with the complete lack of a nexus from the Commission’s
findings and the actual evidence.  To be sure, the Commission is free to make
findings, but those findings must have at least a slight connection to the
evidentiary record.  Findings made from whole cloth cannot meet the minimal
substantial evidence threshold.  Moreover, we are mindful that Dr. Guyton, when
pressed, speculated that it was “possible” that Carlson may have sustained
another injury.  If such speculative testimony were found to be sufficient, the
already thin concept of substantial evidence would be an empty shell.  Here,
the only evidence to within a reasonable degree of medical certainty is that of
Dr. Reynolds, whose testimony the Commission mischaracterized.  Because the
only basis for the Commission’s decision rests on speculation, and
concomitantly the evidence allows reasonable minds to only reach the conclusion
that Carlson’s hernia was caused by the work related accident, we reverse the
Commission.[4]

Accordingly, based on the foregoing, we hold the Commission
erred.  See Grant v. Grant Textiles, 372 S.C. 196, 202, 641
S.E.2d 869, 872 (2007) (“While the appellate courts are required to be
deferential to the full commission regarding questions of fact, this deference
does not prevent the courts from overturning the full commission’s decision
when it is legally incorrect as it is here.”); Thompson v. S.C. Steel Erectors, 369 S.C. 606, 612, 632 S.E.2d 874, 878 (Ct.
App. 2006) (stating under the APA an appellate court may reverse the
Commission’s decision 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).

3.  Finding that
MMI was reached by May 2004 (Carlson’s Issue IV).  Carlson lastly challenges
the Commission’s determination that he reached MMI by May 2004.  The Commission
concluded Carlson reached MMI after finding Carlson’s hematoma had resolved
itself by May 2004 and that Carlson’s causally-related injuries did not include
a hernia.  Since the Commission affirmed the Single Commissioner’s finding that
Carlson had also suffered an injury to his epididymis, and Carlson’s treatment
for this injury occurred after May 2004, the Commission erred in finding
Carlson had reached MMI by May 2004.  In addition, since we are reversing the
finding regarding Carlson’s inguinal hernia and hold that it is compensable,
the finding of MMI must be revisited.  Accordingly, we reverse the Commission’s
finding in this regard and remand this matter to the circuit court, which shall
direct the Commission to reconsider the issue of MMI.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

HUFF, KITTREDGE, and WILLIAMS, JJ., concur.

[1]  We decide this case without oral argument pursuant
to Rule 215, SCACR.

[2]  Documents in the record on appeal also give the date
of the accident as September 9, 2003.

[3] Dr. Reynolds testified that there were “basically two
reasons why the hernia was not diagnosed after [Carlson’s] September 2003
incident.  One is that the concentration was on the scrotal and the testicular
injury and the other would be that the ultrasound was not performed in a way
that the hernia would be revealed[.]”  Dr. Reynolds further stated Carlson
could not be given a proper physical exam to detect the hernia in the earlier
stages of his injury.  There is no evidence to contradict these findings.

[4]  Essentially, the Commission
committed legal error in stating Dr. Reynolds failed to testify to within a
reasonable degree of medical certainty about causation, even though she stated
she was “greater than ninety percent certain” that the work-related accident
caused Carlson’s hernia.  We believe Dr. Reynolds’s testimony meets the level
of certainty required for medical causation.  Further, the Commission
extensively relied upon the testimony of Dr. Guyton, even though he was unable
to testify to a reasonable medical certainty about the cause of Carlson’s
hernia and in fact stated he could not ascertain the cause of Carlson’s hernia
because he did not treat him for that condition and would have to defer to the
expertise of others.