Wal-Mart Stores, Inc. v. Waxenfelter

THIS OPINION HAS NO PRECEDENTIAL VALUE

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

Wal-Mart
Stores, Inc., Employer, and American Homes Assurance, Carrier, Appellants,

v.

William
Waxenfelter, Employee, Respondent.

Appeal From Horry County

 John L. Breeden, Circuit Court Judge

Unpublished Opinion No. 2008- UP-075

Submitted January 1, 2008 – Filed February
4, 2008

AFFIRMED

Johnnie W. Baxley, III, Mount Pleasant, for Appellants.

John S. Nichols, Bluestein, of Columbia, and Kenneth W. Harrell,
of North Charleston, for Respondent.

PER CURIAM: 
William Waxenfelter (Waxenfelter) sustained a compensable injury to his spine, legs,
and right hip while employed at Wal-Mart.  Subsequently, Waxenfelter asserted a
change of condition for the worse pursuant to South Carolina Code section
42-17-90 (Supp. 2006) and was awarded temporary total disability benefits. 
Wal-Mart and American Homes Assurance (collectively Wal-Mart) appeal this
award, claiming Waxenfelter’s back infection severed the causal connection
between his initial compensable injury and resulting worsening of condition. 
We affirm.

FACTS

In April 2003, Waxenfelter was employed at Wal-Mart
as the sporting goods manager.  He was injured when he bent over to move a
dividing bar that separated a display of folding chairs, which caused a severe
pain in his lower back and resulted in a compensable injury to his spine, legs,
and right hip.  His claim was settled pursuant to a Form 16 settlement
agreement.  In July 2004, Waxenfelter filed a Form 50, asserting a change of
condition for the worse and requesting temporary total disability benefits and
additional medical treatment.  Wal-Mart denied that Waxenfelter had sustained a
compensable worsening of his condition. 

At
the Form 50 hearing, Wal-Mart did not present any witnesses.  Waxenfelter
testified on his own behalf.  Both sides submitted numerous medical reports,
including those of orthopedists, Dr. Bauerle and Dr. Wilkins, and Waxenfelter
also submitted the deposition testimony of orthopedist Dr. Poletti. 

Waxenfelter
testified that he incurred two previous lower back injuries while employed at
Wal-Mart, but he was able to return to work without restriction.  After the
April 2003 injury, Waxenfelter was out of work for approximately five weeks but
returned to full-time employment with weight-lifting restrictions.  While his
back pain in late 2003 was “low level and manageable,” by May 2004, his pain
was “excruciating.”  In early May 2004, Waxenfelter stated he began to
experience severe spasms in his back.  These spasms were “so hard that [he]
went out of bed onto the floor, literally, in one motion.”  From that time
until the surgery, he testified he experienced the most “horrendous pain” he
had “ever known in his life,” such that “if the scale is one to ten [the pain]
was off the scale.” 

Dr.
Bauerle examined Waxenfelter in April 2003 after his initial injury and noted
Waxenfelter sustained a “Worker’s Compensation injury with thoracolumbar
scoliosis and multilevel degenerative disc disease.”  Dr. Bauerle then referred
Waxenfelter to Dr. Wilkins for non-surgical rehabilitation.  Dr. Wilkins examined
Waxenfelter in April 2003 and again in May 2004 when Waxenfelter complained of
increased lower back pain.  Based on an MRI scan in May 2004, Dr.
Wilkins opined that Waxenfelter suffered from a “large herniation” to his L1-L2
disc “related to his previous workman’s compensation injury.”  Waxenfelter was
subsequently hospitalized for four days in May 2004 as a result of his severe
back pain.  

In
June 2004, Dr. Bauerle and Dr. Poletti treated Waxenfelter for an exacerbation
of his symptoms, but in July 2004, Waxenfelter had to undergo emergency surgery
due to a large infection at his L1-L2 disc, which caused a complete collapse of
the disc space.  Prior to performing the emergency surgery, Dr. Poletti noted
Waxenfelter’s MRI indicated “a very significant disc herniation at L1-L2 which
is [a] new onset compared to the previous [injury].”  He further stated,
“[Waxenfelter] is even worsening subjectively.”  One month later, Dr. Poletti
stated, “Mr. Waxenfelter is going to be totally disabled.  He is not going to
be capable of returning to work in the future.”  

Dr.
Poletti stated in his deposition, “[Waxenfelter’s disc] was originally
herniated back in . . . 2003.  It had probably been herniated for a long time
and then got worse.”  While Dr. Poletti noted he removed an epidural abscess in
July 2004, he also stated, “I can’t say for certain that this was an epidural
abscess the whole time.  And it theoretically could have been a disc herniation
that became superinfected with an abscess.”  In attempting to pinpoint the
origin of the back infection, which precipitated the surgery, Dr. Poletti
alternatively opined, “[T]he whole scenario is just as plausible that he
ruptured this disc and, in the process of getting treated with it, infection
was seeded and it developed into an abscess.”

When
questioned about whether Waxenfelter’s spine condition had worsened since Dr.
Poletti first examined Waxenfelter in 2003, Dr. Poletti responded, “Yes. No
question.”  However, Dr. Poletti felt that he could not say with a
reasonable degree of medical certainty whether a causal relationship existed
between the infection causing the July 2004 surgery and the pre-existing work
injuries.  Since that time, Waxenfelter has undergone pain management treatment
and epidural steroid injections. 

Based
on this evidence, the Single Commissioner found Waxenfelter sustained a
compensable change of condition for the worse and awarded him additional
medical treatment and temporary total disability benefits from May 8, 2004, the
last day he was able to work, until the benefits could be properly terminated.[1] 
Wal-Mart appealed, and the Appellate Panel affirmed the Single Commissioner. 
Wal-Mart appealed to the circuit court, which affirmed the Appellate Panel. 
Wal-Mart now appeals to this Court.

STANDARD
OF REVIEW

The
Administrative Procedures Act applies to appeals from decisions of the Workers’
Compensation Commission (the Commission).  Lark v. Bi-Lo, Inc., 276 S.C.
130, 134-35, 276 S.E.2d 304, 306 (1981).  In an appeal from the Commission,
neither this Court nor the circuit court may substitute its judgment for that
of the Commission as to the weight of the evidence on questions of fact, but it
may reverse when the decision is affected by an error of law.  Corbin v.
Kohler Co., 351 S.C. 613, 617, 571 S.E.2d 92, 95 (Ct. App. 2002). 

“Any
review of the [C]ommission’s factual findings is governed by the substantial
evidence standard.”  Lockridge v. Santens of Am., Inc., 344 S.C. 511,
515, 544 S.E.2d 842, 844 (Ct. App. 2001).  “Substantial evidence” is not a mere
scintilla of evidence nor 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 in order to justify its action.  Palmetto Alliance, Inc. v.
S.C. Pub. Serv. Comm’n, 282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984).  

“The
possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial
evidence.”  Lee v. Harborside Café, 350 S.C. 74, 78, 564 S.E.2d 354, 356
(Ct. App. 2002) (internal quotations and citations omitted).  Accordingly, we
limit review to deciding whether the Commission’s decision is unsupported by
substantial evidence or is controlled by some error of law.  Corbin, 351
S.C. at 617, 571 S.E.2d at 95.

LAW/ANALYSIS

Wal-Mart contends Waxenfelter’s spinal infection severed the causal connection between his
initial compensable injury and his resulting worsening of condition.  We
disagree.

Generally, an
appeal of a workers’ compensation order is concerned with the conditions prior
to and at the time of the original award of the Commission.  Causby v. Rock Hill Printing & Finishing Co., 249 S.C. 225, 228, 153 S.E.2d 697, 698-99
(1967).  Review for a change of condition is concerned with conditions that
have arisen after the compensable injury.  Id.  When an employee shows a
change of condition, “[T]he Commission may review an award and on that review
may make an award ending, diminishing, or increasing the compensation
previously awarded . . . .” S.C. Code Ann. § 42-17-90 (Supp. 2006).

A change
of condition occurs when the employee experiences a change of physical condition
as a result of his original injury, occurring after the first award.  Causby,
249 S.C. at 227, 153 S.E.2d at 698.  To justify a modification of an award
based on a change of condition, the employee must show the change of condition
and its causal connection to the original compensable accident.  Krell v. S.C. State Highway Dep’t, 237 S.C. 584, 588, 118 S.E.2d 322, 323 (1961).  Every natural
consequence which flows from the initial injury, unless the result of an
independent intervening cause sufficient to sever the chain of causation, is
also compensable.  Whitfield v. Daniel Constr. Co., 226 S.C. 37, 40-41,
83 S.E.2d 460, 462 (1954).  Further, “[c]ircumstantial evidence . . . need not
reach such a degree of certainty as to exclude every reasonable or possible
conclusion other than that reached.”  Id. at 43, 83 S.E.2d at 463-64 (internal
quotation and citation omitted).

Both sides concede Waxenfelter sustained a change of condition for the worse under section
42-17-90.  Consequently, the issue before this Court is whether the spinal
infection severed the causal relationship between the initial injury and
subsequent injury to a degree that would preclude Waxenfelter from receiving
benefits.  We find substantial evidence exists to support the Commission’s award.

Waxenfelter
testified that his back injury had gradually worsened from the initial injury
in April 2003.  His pain was “low level and manageable” in late 2003, but it
was “off the scale” by May 2004.  Further, the medical evidence presented by
Waxenfelter, as well as the deposition testimony of Dr. Poletti, reinforces
that his worsening of condition was a natural progression from his initial
compensable injury.  Dr. Poletti testified that regardless of Waxenfelter’s
spinal infection, he was certain his condition had worsened since 2003.  Dr.
Poletti also testified the abscess plausibly was a result of the work-related
hernia, which progressively worsened over time into the abscess, or the abscess
developed as a result of Waxenfelter’s medical treatment for the hernia. 
Additionally, Dr. Wilkins opined in May 2004 that Waxenfelter’s disc herniation
was related to his previous work-related injury.  Consequently, Waxenfelter
presented substantial evidence that his worsening of condition was causally
related to his initial injury and was not severed by his ensuing back
infection.  In viewing the record as a whole, we find the Commission’s award is
justified.

CONCLUSION

Accordingly, the circuit court’s ruling is  

AFFIRMED.[2]

ANDERSON
and WILLIAMS, JJ., and CURETON, AJ., concur.

[1]  The Single Commissioner did not hold Wal-Mart
responsible for treatment costs related to Waxenfelter’s emergency surgery in
July 2004, and Waxenfelter did not appeal this ruling. 

[2] We decide this case without oral arguments pursuant
to Rule 215, SCACR.