Freddie Tarver v. Beech Island Rural Community

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

Freddie Tarver, Claimant, Appellant,

v.

Beech Island Rural Community, Employer, and Auto
Owners Insurance Company, Carrier, Respondents.

Appellate Case No. 2019-000886

Appeal from The Workers' Compensation Commission

Opinion No. 2022-UP-363
Heard April 5, 2022 – Filed September 28, 2022

AFFIRMED

Hyman S. Rubin, Jr., of McDonald, McKenzie, Rubin,
Miller & Lybrand, LLP, of Columbia, for Appellant.

James Paul Newman, Jr., of Howser Newman & Besley,
LLC, of Columbia, and Andrew Elliott Haselden, of
Howser Newman & Besley, LLC, of Charleston, for
Respondents.

PER CURIAM: Freddie Tarver argues the Appellate Panel of the South Carolina
Workers' Compensation Commission (the Appellate Panel) erred in (1) denying his
claim for permanent and total disability or, alternatively, permanent partial
disability, and (2) denying him a separate award for his lower extremities.1 We
affirm.

Facts and Procedural History

Tarver worked in water maintenance for Beech Island Rural Community in Aiken
County from 1986 until his retirement in March 2015. His job duties included
operating equipment, reading water meters, performing repairs, and pumping water
from holes. At times, Tarver lifted 200-pound pipes with another worker.

On April 15, 2014, Tarver parked and exited his company truck to read a meter.
As the truck began rolling down a hill, Tarver attempted to stop it and was dragged
approximately thirty feet. Tarver sustained injuries to his back, pelvis, and teeth.
He was unable to get off the ground, was in extreme pain, and was bleeding.

An ambulance transported Tarver to University Hospital, which transferred him to
Georgia Regents Medical Center for specialized trauma care. He was diagnosed
with an unspecified closed fracture of the pelvis; bilateral fracture of the pubic
rami; closed fracture of the spine, sacrum or coccyx, without spinal injury; anemia
from blood loss; soft tissue contusions; and a transverse lumbar process fracture.
Although his doctors initially thought Tarver would need surgery, they later
determined surgery was unnecessary and discharged him three days after the
accident.

For the next two months, Tarver had physical therapy. He did not want to go to an
inpatient rehabilitation facility because he wanted to keep costs down and because
his wife, a nurse, could take care of him. While out of work, Tarver received
temporary total disability benefits.

On July 10, 2014, Tarver returned to work, but he was exhausted and in pain when
he came home after his shifts. Shortly after returning to work, Tarver received a
raise because, as Tarver explained, "I do my work and I work hard."

On December 10, 2014, Dr. Daniel Westerkam conducted an independent medical
evaluation of Tarver. Tarver's primary complaint was lower back pain, but he had
mild mid-back and hip pain as well. Tarver reported taking Percocet and Dilaudid
for severe pain as needed, usually twice a week, and other pain medications

1
By letter dated June 10, 2022, Tarver informed this court of the withdrawal of his
appeal of the Appellate Panel's calculation of his average weekly wage.
regularly. He reported having difficulty lifting and digging. Dr. Westerkam noted,
Tarver "has continued to work on a daily basis, although at the end of the day
sometimes he has significant pain." He stated, "The patient has full range of
motion of the hips, knees, and ankles. The patient does have some pain with
forward flexion and back extension, minimal pain to lateral flexion."

Dr. Westerkam described his impression of Tarver as:

He appears to be at the maximum medical improvement
as defined by the American Medical Associations' Guide
to the Evaluation of Permanent Impairment, 5th Edition.
Using these guides, I think he does qualify for an
impairment based on the table 15-3 found on page 384.
He will be placed in the diagnostic related estimate
category III for the transverse process fracture. This
would yield a 10% spine impairment, or a 13% lumbar
regional spine impairment. I would recommend that he
not lift more than 50 pounds and that he not do repetitive
squatting. He can do occasional squatting. He should
have no limitations with standing or walking.

On March 27, 2015, Tarver retired. He gave no reason when he submitted his
notice of retirement to Beech Island.

On April 23, 2015, physical therapist (PT) Tracy Hill evaluated Tarver and opined
he did not qualify for an impairment rating for his pelvic issues. Hill found Tarver
qualified for a whole person impairment rating of 14%, which converted to a 16%
lumbar spine impairment, and 5% lower extremity impairment of each hip due to
limited hip flexion range of motion; PT Hill also found Tarver could do limited
light work.

On September 4, 2015, Tarver's primary care physician, Dr. John Vehlky,
evaluated Tarver for his reported moderate back pain. Dr. Vehlky diagnosed
Tarver with midline low back pain without sciatica and observed Tarver exhibited
decreased range of motion and tenderness in both hips and his lumbar back.

On December 18, 2015, Dr. Justin Hutcheson evaluated Tarver. Tarver reported
pain to his back, both hips, and right thigh, with occasional numbness. Dr.
Hutcheson diagnosed Tarver with spondylosis (age-related degeneration) to several
vertebrae and opined Tarver was at maximum medical improvement (MMI). Dr.
Hutcheson commented, "Impairment – 14%, WPI = 16% lumbar spine, 5% lower
extremity impairment rating each hip due to limited hip flexion range of motion."
"Given his age, educational level and history of pelvis and lumbar fractures, I think
he will have a real problem maintaining pace and perseverance in a competitive
work environment at 40 hours/week." Dr. Hutcheson recommended Tarver
continue with his home exercise plan and medication or undergo further testing to
determine whether injections and durable medical equipment should be considered.

On December 31, 2015, Tarver filed a Form 50 seeking an award for permanent
and total disability or, alternatively, permanent partial disability, due to the injuries
to his neck, pelvis, hips, legs, shoulders, and teeth. Tarver claimed his average
weekly wage was $1,166.58 from all sources. Respondents timely filed a Form 51
noting the evidence showed Tarver had reached MMI.

On January 26, 2016, vocational consultant Glen Adams conducted a vocational
assessment for Tarver, classifying him as a "Construction Worker II" with a "very
heavy" strength requirement but also classifying him as a "Meter Reader" with a
"light" strength requirement. Adams found Tarver lacked the skills, knowledge, or
abilities to engage in work similar to his previous work and there was no residual
job market for him due to his vocational weaknesses, age, and reduced physical
ability. The assessment classified him as "totally vocationally disabled" and
"essentially functionally illiterate."

Respondents' vocational rehabilitation consultant, Jan Westmoreland, prepared an
employment analysis and labor market survey that identified Tarver as physically
capable of performing sedentary to light physical work. The report identified
potential jobs for Tarver with payment ranges of $7.50 to $10.23 per hour,
including retail salesperson, ticket taker, and shuttle driver, and stated:

Upon review of available medical records, vocational
interview, interest testing, education, employability
analysis, labor market reviews, and published date, it is
my opinion that Mr. Tarver remains employable. This
assumes he can work part-time (20 hours) or full-time
(40 hours) employment. After review of medical reports
and my clinical interview, Mr. Tarver's physical capacity
range appears to fall within the sedentary to light
physical demand work capacity. He can anticipate
earning from $7.25/hour to $8.00/hour.
On May 27, 2016, Dr. John Velky diagnosed Tarver with lumbar back pain with
sciatica and ordered an MRI of the lumbar spine. Dr. Velky reported, "This is a
chronic problem. The current episode started more than 1 year ago. The pain is at
a severity of 8/10. The pain is severe. The pain is the same all the time. Stiffness
is present all day." On June 17, 2016, Tarver had a lumbar spine MRI. Comparing
the June 2016 MRI with the 2014 CT scan, Dr. Velky's notes state, "Impression:
Diffuse degenerative disc disease with osteoarthritic changes of the articulating
facet more prominent at the L5-S1." He then referred Tarver for pain management.

In July 2016, PT Parik Patel evaluated Tarver, who presented with bilateral lower
extremity radiculopathy and decreased range of motion, worse on the right side
than the left. He also suffered decreased bilateral lumbar range of motion with
pain. Patel observed Tarver had decreased core strength and opined he would
benefit from skilled physical therapy, focused on core strengthening, to improve
his functional mobility and reduce radiculopathy symptoms.

On September 12, 2016, Dr. Velky opined to a reasonable degree of medical
certainty that "Mr. Tarver is most probably totally and permanently disabled from
any full-time gainful employment." Dr. Velky noted the overall deterioration in
Tarver's health since 2014, particularly his residual lower back pain issues.

Tarver appeared for a September 27, 2016 hearing before a single commissioner,
who found Tarver had a 25% permanent partial disability to the back, "which takes
into account any and all radiculopathy." The single commissioner denied Tarver's
requests for permanent and total disability and permanent partial disability. He
found Tarver did not sustain compensable injuries to his teeth but suffered
compensable injuries to his back and pelvis. However, the single commissioner
found Tarver was not permanently and totally disabled because when he returned
to work on July 10, 2014, Tarver worked his regular duties. The single
commissioner further found Tarver had reached MMI and calculated his average
weekly wage to be $1,037.41. This average weekly wage did not include Tarver's
income from either his plumbing or part-time ministry work because Tarver was
still engaged in both jobs.

Tarver timely appealed to the Appellate Panel, which reversed the denial of
compensation for the loss of Tarver's two front teeth and remanded the case to the
single commissioner to analyze their compensability along with any disability.

On remand, the single commissioner found Tarver was entitled to compensation
for "Twenty-five (25%) to the back to include radiculopathy, Two (2%) to the hip,
and 2 weeks for the loss of each tooth" under section 42-9-30 of the South Carolina
Code (2015), which provides the schedule of and compensation for periods of
disability. He found Tarver was not entitled to recover under § 42-9-10 (total
disability) or § 42-9-20 (partial disability).

Tarver timely appealed, and the Appellate Panel affirmed the single
commissioner's order. The Appellate Panel noted both Tarver's admission that he
had no physician's excuse writing him out of work as well as the testimony of
David Scott, Tarver's immediate supervisor, who testified he would have given
Tarver a light duty job had he asked. The Appellate Panel found Tarver returned
to full-time regular duty employment on July 10, 2014, and continued working in
that capacity until he voluntarily retired in March 2015. It noted Tarver's
vocational findings were rendered after he had been back at work for almost a year
and almost two years after his accident.

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). "In a workers' compensation case, the appellate panel is the ultimate
fact-finder." Nicholson v. S.C. Dep't of Soc. Servs., 411 S.C. 381, 384, 769 S.E.2d
1, 3 (2015). "Substantial evidence is 'not a mere scintilla of evidence nor the
evidence viewed blindly from one side of the case, but is evidence which,
considering the record as a whole, would allow reasonable minds to reach the
conclusion that [the commission] reached or must have reached' to support its
orders." Lewis v. L.B. Dynasty, Inc., 419 S.C. 515, 518, 799 S.E.2d 304, 305
(2017) (alteration by court) (quoting Lark, 276 S.C. at 135, 276 S.E.2d at 306).

Law and Analysis

I. Disability

Tarver argues the Appellate Panel erred in affirming the single commissioner's
denial of his claim for permanent and total disability because his injuries rendered
him unable to work at the full-time heavy labor he performed his entire career.
Alternatively, Tarver argues he is entitled to an award of permanent partial
disability.

"The term 'disability' means incapacity because of injury to earn the wages which
the employee was receiving at the time of injury in the same or any other
employment." S.C. Code Ann. § 42-1-120 (2015). "The extent of disability is a
question of fact to be proved as any other fact is proved." Watson v. Xtra Mile
Driver Training, Inc., 399 S.C. 455, 463, 732 S.E.2d 190, 194 (Ct. App. 2012). A
claimant has the burden to establish permanent and total disability. See Dent v. E.
Richland Cnty. Pub. Serv. Dist., 423 S.C. 193, 201, 813 S.E.2d 886, 890 (Ct. App.
2018). "Further, even if this court would have weighed the evidence differently,
we are mindful that the Appellate Panel is the ultimate finder of fact, and when
evidence is conflicting over a factual issue, the findings of the Appellate Panel are
conclusive." Dozier v. Am. Red Cross, 411 S.C. 274, 289, 768 S.E.2d 222, 229–30
(Ct. App. 2014).

Here, substantial evidence in the record supports the Appellate Panel's finding that
Tarver was not permanently and totally disabled as a result of his April 2014
injuries. Tarver returned to work two months after his accident, and for nine
months he performed the same job duties, with the same crew, under the same
supervisor as before the accident. Although he was experiencing lower back, leg,
and hip pain, he admitted his lower back only hurt at the end of the work day. At
his 2015 deposition, Tarver stated, "Especially, you know, like I can go to work.
I'm—I do my job, but I hurt. Even sometimes when I'm at work, I'm—I'm
hurting." Tarver did not give any reasons for retiring when he turned in his
retirement notice. However, before the single commissioner, he testified, "I just
couldn't do it anymore; I just got—got tired of hurting every day."

Tarver admitted no doctor gave him work restrictions, other than the two-month
period for which he was out of work completely. He testified he did not tell his
employer he was unable to perform the work because he was concerned he would
lose his job and he did not want others to think he could not do the work. Tarver
continued to perform the same work when he returned in July 2014 as he did
before the accident, and he did not ask for any accommodation or a light duty job.
Upon his retirement from Beech Island, Tarver was still operating his plumbing
business and working as a part-time minister.

According to Tarver's supervisor, Scott, it was not unusual for employees to
complain of soreness after big projects or repairs. When Tarver returned to work,
he did not indicate his soreness was anything other than that typically associated
with the job, and Scott recalled Tarver experienced soreness prior to the accident
as well. Scott admitted part of the job required heavy lifting and noted it often
took all four or five men on a crew to lift heavy objects. According to Scott,
Tarver would lift one-hundred-pound water meters, but that was "very seldom."
The Appellate Panel's finding that Tarver's condition worsened after he voluntarily
retired is also supported by the evidence. In December 2014—after Tarver had
again been working in his normal capacity for six months—Dr. Westerkam
observed Tarver had full range of motion, could lift up to fifty pounds, had no
limitations walking or standing, and could handle occasional squatting.

While we recognize conflicting evidence exists in the record, such does not render
the Appellate Panel's findings unsupported by the evidence. See Dozier, 411 S.C.
at 289, 768 S.E.2d at 229–30 ("[W]hen evidence is conflicting over a factual issue,
the findings of the Appellate Panel are conclusive.").

II. Award for Lower Extremities

Tarver next argues the Appellate Panel erred in denying him a separate award for
his lower extremities when the evidence established he sustained a 5% permanent
disability to each lower extremity. In support of his argument, Tarver cites the Hill
and Hutcheson evaluations referencing "a 5% lower extremity impairment for each
hip due to limited hip flexion range of motion."

The Appellate Panel assigned Tarver a "Twenty-five (25%) permanent partial
disability to the back to include radiculopathy" as well as 2% to the hip under
§ 42-9-30. As substantial evidence in the record supports the Appellate Panel's
finding, we find no error.

CONCLUSION

Based on the foregoing, the order of the Appellate Panel is

AFFIRMED.

THOMAS, MCDONALD, and HEWITT, JJ., concur.