Brooks v. Benore Logistics System, Inc.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Dale Brooks, Employee, Appellant,

v.

Benore Logistics System, Inc., Employer, and Great
American Alliance Insurance Company, Carrier,
Respondents.

Appellate Case No. 2018-002087

Appeal From The Workers' Compensation Commission

Opinion No. 5891
Submitted November 1, 2021 – Filed January 19, 2022

REVERSED AND REMANDED

Robert T. Usry, of Holland & Usry, PA, of Spartanburg,
for Appellant.

Daniel Barry Eller and William Franklin Childers, Jr.,
both of Eller Tonnsen Bach, of Greenville, for
Respondents.

HILL, J.: Dale Brooks brought this workers' compensation claim seeking benefits
for a repetitive trauma injury to his lower back and right leg. A single commissioner
awarded him benefits, but the Full Commission reversed, finding Brooks failed to
prove his job was repetitive. We reverse and remand.

I. Facts
Brooks began working as a "switcher" truck driver for Benore Logistics Systems,
Inc. in June 2016. His job consisted of driving a "switcher truck" to move trailers to
various points in a yard at the BMW manufacturing plant. He would drive the
switcher truck across the yard and back it up to a trailer, hook it to his truck, and
drive the trailer to another location where he would unhook it. The process required
Brooks to climb up three steps to access the cab of the truck (which he testified he
had to stoop to enter), bend his body to position it in the seat, bend and twist his
body while seated to back up the truck to the trailer, exit the cab by a rear door to
access a platform where he would then have to bend to hook or unhook the trailer,
climb off the platform and close the rear trailer doors, reenter the cab, and return to
his seat to drive the truck. Brooks had to switch forty-five to sixty trailers each
twelve-hour shift, sometimes getting in and out of the truck 225 times. Brooks
testified he often had to switch sea containers, which were far more demanding
physically because they were more difficult to open, higher off the ground, and had
a ceramic seal that had to be opened with bolt cutters. Sometimes he also had to
stoop underneath the sea container and pull pins to slide the axle.

In January 2017, Brooks began experiencing pain in his back and leg. He went to
the emergency room and was discharged with the recommendation to follow up with
an orthopedist. He was then seen by Benore's doctor at WorkWell, reporting that
his symptoms had begun several weeks before when he felt sharp low back pain
while stepping into his truck at work. At Brooks' follow up appointment, the
WorkWell doctor ordered an MRI. This MRI was never completed because two
minutes after Brooks left the appointment, Benore's adjuster called WorkWell and
advised that Brooks' claim had been denied.

On May 1, 2017, Brooks went to Dr. Eric Loudermilk, whose notes state:

He presents today complaining of pain in his back and leg
which has been present since around January 3, 2017. He
runs a switcher truck. He apparently works as a driver and
he climbs up and down some stairs approximately 150
times per day switching trucks. He apparently does at a
minimum of 30 trucks per shift. This involves switching
trucks in and out multiple times during the day, opening
and closing doors, bending and stooping, and climbing
ladders. Around January 3, 2017, he developed burning
pain in his legs. Several days later, he developed severe
pain in his lower back which radiated down his right leg
all the way to the calf and right foot.

After obtaining an MRI, Dr. Loudermilk diagnosed Brooks with right lower
extremity radiculopathy secondary to a L4‒L5 lumbar disk protrusion and
recommended a non-surgical course of treatment. Brooks' lawyer sent Dr.
Loudermilk a questionnaire that included the following two questions:

A. Did the repetitive activities of Dale's job, including but
not limited to going up and down stairs, getting in and out
of a truck, opening and closing doors, bending and
stooping, and climbing ladders, most probably cause low
back pain with right leg radiculopathy?

B. Did the work injuries from repeated work activities
above cause an L4‒5 disc protrusion shown on Dale's MRI
of 6.27.17?

Dr. Loudermilk answered "yes" to both questions.

This questionnaire and other evidence were presented at the hearing before the single
commissioner, where Brooks was the sole witness. Benore presented an ergonomics
report it had procured that opined Brooks' job duties entailed no enhanced risk of
injury to his back. The single commissioner found Brooks proved he had suffered a
repetitive trauma injury and awarded him benefits.

The Full Commission disagreed. Relying on the ergonomics report, it concluded
Brooks had not proven his job duties were repetitive and denied him benefits.
Brooks now appeals to us.

II. Standard of Review

We must affirm the factual findings of the Commission if they are supported by
substantial evidence. S.C. Code Ann. § 1-23-380(5) (2005 & Supp. 2020); Lark v.
Bi-Lo, Inc., 276 S.C. 130, 132–33, 276 S.E.2d 304, 305 (1981). Like any other finder
of fact, the Commission may not rest its findings on speculation or guesswork. Tiller
v. Nat'l Health Care Ctr. of Sumter, 334 S.C. 333, 339, 513 S.E.2d 843, 845 (1999)
("Workers' compensation awards must not be based on surmise, conjecture or
speculation."). Instead, the Commission must anchor its ruling on evidence
substantial enough to provide a reasonable basis for its findings. Hutson v. S.C. State
Ports Auth., 399 S.C. 381, 387, 732 S.E.2d 500, 503 (2012). As relevant here, we
may reverse the Commission's decision if its findings are "clearly erroneous in view
of the reliable, probative, and substantial evidence on the whole record"; the result
of an error of law; or arbitrary, capricious, or an abuse of discretion resulting in
prejudice to Brooks' substantial rights. S.C. Code Ann. § 1-23-380(5).

III. Analysis

A. The standard for recovery for a repetitive trauma injury

Section 42-1-172 of the South Carolina Code (2007) is the exclusive method for
determining the compensability of repetitive trauma injuries. Michau v. Georgetown
County ex rel. S.C. Cntys. Workers Comp. Tr.,, 396 S.C. 589, 594, 723 S.E.2d 805,
807 (2012). The relevant part of § 42-1-172 provides:

(A) "Repetitive trauma injury" means an injury which is
gradual in onset and caused by the cumulative effects of
repetitive traumatic events. Compensability of a repetitive
trauma injury must be determined only under the
provisions of this statute.

(B) An injury is not considered a compensable repetitive
trauma injury unless a commissioner makes a specific
finding of fact by a preponderance of the evidence of a
causal connection that is established by medical evidence
between the repetitive activities that occurred while the
employee was engaged in the regular duties of his
employment and the injury.

(C) As used in this section, "medical evidence" means
expert opinion or testimony stated to a reasonable degree
of medical certainty, documents, records, or other material
that is offered by a licensed and qualified medical
physician.
(D) A "repetitive trauma injury" is considered to arise out
of employment only if it is established by medical
evidence that there is a direct causal relationship between
the condition under which the work is performed and the
injury.

The leading case construing § 42-1-172 tells us compensability of a repetitive trauma
injury requires a specific finding of fact, made by the greater weight of the evidence,
of a direct causal relationship, established by medical evidence, between the injury
and a repetitive act occurring in the course of the regular duties of employment.
Murphy v. Owens Corning, 393 S.C. 77, 85, 710 S.E.2d 454, 458 (Ct. App. 2011).

B. The single commissioner's ruling

In ruling Brooks was entitled to compensation for a repetitive trauma injury, the
single commissioner's order tracked § 42-1-172 and Murphy precisely, stating:

14. . . . Based on the preponderance of the evidence before
me in this case, I must conclude that [Brooks] has suffered
a compensable repetitive trauma injury to his low back
affecting his right leg.

A. I find a direct causal relationship between the
repetitive acts and the employment.[1]
B. This finding is based on the entire record.

C. The Full Commission's ruling

1
In making this statement, the single commissioner was following Murphy to a
fault. Murphy states, "Compensability under section 42-1-172 requires a specific
finding of fact, by the preponderance of the evidence, of a direct causal relationship,
established by medical evidence, between the repetitive act and the employment."
393 S.C. at 85, 710 S.E.2d at 458 (emphasis added). We are certain the emphasized
phrase was a scrivener's error and should read "and the injury."
The Full Commission reversed, finding § 42-1-172 requires "a two-part analysis a
claimant must meet in order to meet his burden of proving a compensable repetitive
trauma injury." The Commission went on to describe the two-part test:

First, there must be medical evidence establishing a causal
connection between the "condition under which the work
is performed and the injury." § 42-1-172(D).
Additionally, there is an independent requirement that the
Commissioner find by a preponderance of evidence that
the claimant's specific job activities are repetitive.
§ 42-1-172(B).

The two-part test announced by the Full Commission is unfaithful to Murphy and
misreads § 42–1–172. The plain language of § 42–1–172 does not support a two-part
construct. The intent of the statute is to require a commissioner to make a specific
factual finding that medical evidence establishes a causal connection between the
repetitive duties of claimant's employment and the injury. The single commissioner
did just that. In insisting the statute also requires the commissioner to make a
separate factual finding that the employee's job duties were repetitive, the Full
Commission sees something in the statute that is not there. Setting such an extra
hurdle violates fundamental rules of statutory construction. Paschal v. State
Election Comm'n, 317 S.C. 434, 437, 454 S.E.2d 890, 892 (1995) (court may not
resort to subtle or forced construction to expand or limit a statute's scope).

The effect of the Full Commission's two-part formula would be to force claimants
to offer expert testimony that their job duties were repetitive. But that would not be
enough, for there is no question § 42-1-172 requires that the causal connection
between the work and the injury must be established by "medical evidence," which
"means expert opinion or testimony stated to a reasonable degree of medical
certainty, documents, records, or other material that is offered by a licensed and
qualified medical physician." § 42-1-172(C).

Michau illustrates why the ergonomics report here is not competent medical
evidence under § 42-1-172. Michau held § 42-1-172 mandates that to be admissible
as "medical evidence" in repetitive trauma cases, the doctor's opinion must reflect
that it is stated to a reasonable degree of medical certainty, something an ergonomics
report cannot do. Michau, 396 S.C. at 595–96, 723 S.E.2d at 808 (quoting § 42-1-
172).
We are certain that in drafting § 42-1-172, the General Assembly understood, as we
do, that medical doctors are capable of diagnosing the cause of an injury. Doctors
do not require, any more than the statute does, an ergonomics report to diagnose the
cause of a repetitive trauma injury. The Full Commission therefore committed an
error of law in adding an improper, redundant condition to § 42-1-172.

The Full Commission also committed a clear error in finding the ergonomics report
concluded Brooks' job duties were not repetitive. The report makes no such
statement and does not even use the word "repetitive." A fair reading of the report
reveals it merely opined Brooks' duties did not, in general, expose him to an
enhanced risk of injury to his back or legs. Recovery under § 42-1-172 is not limited
to work injuries that an ergonomics report deems statistically likely.

It is obvious to us the Full Commission substituted the opinion of the ergonomics
report for the considered medical opinion, made to a reasonable degree of medical
certainty, of Dr. Loudermilk. This was reversible error. See Herndon v. Morgan
Mills, Inc., 246 S.C. 201, 216, 143 S.E.2d 376, 384 (1965) ("[W]here the subject is
one for experts or skilled witnesses alone and concerns a matter of science or
specialized art or other matters of which a layman can have no knowledge, the
unanimous opinion of medical experts on particular subjects may be conclusive,
even if contradicted by lay witnesses.").

The Full Commission tried to discredit Dr. Loudermilk by claiming his "opinions
assume the job is sufficiently repetitive," because he was "never asked whether
[Brooks'] job activities are sufficiently repetitive" and "there is no evidence Dr.
Loudermilk ever reviewed a job description for a 'switcher'". These statements from
the Full Commission's order are based on fuzzy logic (they use the classic fallacy
known as appeal to ignorance) and are refuted by the record. Dr. Loudermilk did
not assume the duties were repetitive; he gave his expert opinion that, to a reasonable
degree of medical certainty, Brooks' repetitive job duties caused his injury. In
reaching that opinion, he well knew Brooks' job duties, as he recorded them in his
notes and reaffirmed them in answering the questionnaire. Nothing in § 42-1-172
prevents a medical doctor from using his expert evaluation of patient history in
forming his professional opinion, and we expect the medical community would be
surprised to learn the Full Commission believes this time-honored practice always
entails an unwarranted assumption. More to the point, Dr. Loudermilk avowed the
ergonomics report—which cataloged Brooks' job duties—did not alter his opinion.
While the Commission may refuse to accept even uncontradicted medical evidence,
it must base its refusal on a valid reason supported by competent evidence in the
record. Otherwise, the refusal is arbitrary and capricious and warrants reversal.
Baker v. Graniteville Co., 197 S.C. 21, 28‒29, 14 S.E.2d 367, 371 (1941); see also
Tiller, 334 S.C. at 340, 513 S.E.2d at 846 ("[W]hile medical testimony is entitled to
great respect, the fact finder may disregard it if there is other competent evidence in
the record."); 12 Lex K. Larson, Larson's Workers' Compensation Law § 128.03(4)
at 128-13 (Matthew Bender, Rev. Ed. 2014) ("If a Commission wishes to enter an
award contradicting the medical testimony, it must take care to show in the record
the valid competing evidence or considerations that impelled it to disregard the
medical evidence. Failure to do so may lead to reversal both of denials and awards
of compensation."); Cf. Burnette v. City of Greenville, 401 S.C. 417, 427–28, 737
S.E.2d 200, 206 (Ct. App. 2012). The ergonomic report was not competent evidence
of causation in this § 42-1-172 case. Therefore, because all of the competent
evidence supports Brooks' claim, Brooks is entitled to compensation as a matter of
law. See Clemmons v. Lowe's Home Centers, Inc.-Harbison, 420 S.C. 282, 289, 803
S.E.2d 268, 271 (2017); Herndon, 246 S.C. at 209–10, 143 S.E.2d at 381.

To repeat, because the only rational inference that can be drawn from the record is
that Brooks met his burden of proving he suffered a repetitive trauma injury arising
out of his employment as defined by § 42-1-172, we reverse the ruling of the Full
Commission and remand for calculation of benefits.

REVERSED AND REMANDED.2

KONDUROS and HEWITT, JJ., concur.

2
We decide this case without oral argument pursuant to Rule 215, SCACR.