Cassisy v. Wilson Tree

THE STATE OF SOUTH CAROLINA In The Court of Appeals William Cassidy, Employee, Respondent, v. Wilson Tree Co., Employer, & National Union Fire Insurance Company, Carrier, Appellants. Appeal From Chesterfield County J. Ernest Kinard, Jr., Circuit Court Judge Unpublished Opinion No. 2003-UP-225 Heard March 11, 2003 – Filed March 25, 2003 AFFIRMED Sherod H. Eadon, of Columbia, for respondent. Grady L. Beard and Marcy J. Lamar, of Columbia, for appellants. PER CURIAM: In this workers’ compensation action, a single Workers’ Compensation Commissioner (“the commissioner”) found William Cassidy totally and permanently disabled due to organic brain damage. The South Carolina Workers’ Compensation Commission (“the full commission”) adopted the commissioner’s findings and, on appeal, the circuit court affirmed. Wilson Tree Co. and its workers’ compensation insurance carrier, (collectively, “Wilson Tree”) appeal. We affirm. FACTS/PROCEDURAL HISTORY Cassidy sustained a work-related injury to his head on December 16, 1991. During the next eight years, he was seen by numerous psychiatrists, neurologists, and clinical psychologists to assess and treat his resulting brain damage. In 1999, following several workers’ compensation hearings, the commissioner found Cassidy: 1) was totally and permanently disabled because of organic brain damage; 2) was unable to work; 3) was not malingering or subject to outside stressors; 4) reached maximum medical improvement (“MMI”) on May 31, 1999; and 5) required additional medical treatment. The commissioner ordered Wilson Tree to pay Cassidy lifetime medical benefits and lifetime disability benefits of $292.98 per week. The full commission adopted the commissioner’s findings and affirmed the commissioner’s order. Wilson Tree appealed the full commission’s order to the circuit court, which remanded the case back to the full commission, ruling the full commission failed to consider certain documents submitted by Wilson Tree. After reviewing the record a second time, the full commission issued a second order, affirming the commissioner’s order. Wilson Tree appealed to the circuit court, which affirmed the full commission’s second order. Wilson Tree appeals. LAW/ANALYSIS I. Total & Permanent Disability Wilson Tree argues the circuit court erred in affirming the full commission’s findings that Cassidy was: 1) totally and permanently disabled; 2) not able to work; 3) not malingering; and 4) not subject to outside stressors. We disagree. The Administrative Procedures Act established the standard of review for decisions by the full commission. See Lark v. Bi-Lo, Inc, 276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). An appellate court may only reverse or modify the full commission’s decision if its findings or conclusions are “clearly erroneous in view of the reliable, probative, and substantial evidence [in] the whole record.” S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2002); see Brunson v. Wal-Mart Stores, Inc., 344 S.C. 107, 110, 542 S.E.2d 732, 733 (Ct. App. 2001). “[S]ubstantial evidence is evidence which, considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached to justify its action.” Stokes v. First Nat’l Bank, 306 S.C. 46, 50, 410 S.E.2d 248, 251 (1991). During several workers’ compensation hearings, Cassidy’s authorized treating psychiatrist, Dr. Hotchkiss, stated Cassidy would suffer further harm if he returned to work, was not malingering, could handle the normal stressors of everyday life, and had organic brain damage and psychiatric problems. Dr. Windsorova, a clinical psychologist, confirmed Dr. Hotchkiss’s findings that Cassidy was not malingering and was unemployable. Dr. Kent, a neurologist, stated Cassidy had brain damage, was not malingering; and would need psychiatric therapy for the remainder of his life. Robert Deyasch, a neuropsychologist, confirmed Cassidy had organic brain damage. Wilson Tree argues other evidence exists in the record which would refute the full commission’s findings. Wilson Tree asserts, witnesses testified Cassidy was malingering, was subject to outside stressors, was not permanently and totally disabled, and could return to work. However, Wilson Tree misapprehends this Court’s standard of review. On appeal, this Court does not sit to determine whether it would have made findings similar to those made by the full commission. See Brunson, 344 S.C. at 110, 542 S.E.2d at 733 (holding “[t]he reviewing court may not substitute its judgment for that of the full commission as to the weight of the evidence on questions of fact”). Rather, we must simply determine whether the record contains sufficient evidence to support the full commission’s findings. If the record contains this evidence and no error of law was made, we must affirm the commission’s order. See S.C. Code Ann. § 1-23-380(A)(6). During the hearings, Cassidy presented substantial evidence, in the form of testimony, depositions, and medical records, to support the full commission’s findings. Therefore, although evidence exists in the record which may have supported different findings, given this Court’s limited scope of review we find the circuit court did not err in affirming the full commission’s findings of fact. II. Maximum Medical Improvement Wilson Tree argues the circuit court erred in affirming the full commission’s finding that Cassidy reached MMI. We disagree. “[MMI] is a term used to indicate that a person has reached such a plateau that in the physician’s opinion there is no further medical care or treatment which will lessen the degree of impairment.” O’Banner v. Westinghouse Elec. Corp., 319 S.C. 24, 28, 459 S.E.2d 324, 327 (Ct. App. 1995). “However, the fact a claimant has reached [MMI] does not preclude a finding the claimant still may require additional medical care or treatment.” Dodge v. Bruccoli, Clark, Layman, Inc., 334 S.C. 574, 581, 514 S.E.2d 593, 596 (Ct. App. 1999). Dr. Hotchkiss testified Cassidy reached MMI. Both Dr. Hotchkiss and Dr. Windsorova testified Cassidy had little chance for further improvement. Doctors Hotchkiss, Kent, and Windsorova all testified Cassidy would benefit from continued treatment such as cognitive therapy, continued medication, and psychotherapy. Only Dr. Windsorova testified Cassidy had not yet reached MMI. However, in giving her opinion, she indicated she had to defer to Dr. Hotchkiss because he was Cassidy’s treating psychiatrist. Based on the testimony recounted above, we find substantial evidence exists in the record to support the full commission’s finding that Cassidy had reached MMI. Moreover, a finding that Cassidy has reached MMI does not preclude a simultaneous finding of necessary future treatment. See id. Therefore, the circuit court did not err in affirming the full commission’s finding that Cassidy reached MMI and required continued treatment. III. Attorney-Prepared Final Order A. Factual Findings Wilson Tree argues the circuit court erred in failing to reverse the commissioner’s final order, prepared by Cassidy’s attorney, because it contained factual findings not provided for in the commissioner’s hearing notes. We disagree. “[T]he findings [of fact] in [an attorney-prepared] order, though not the product of the trial judge’s mind, are formally his. Such orders and the findings therein are not to be rejected out-of-hand; they will stand if supported by the evidence.” Bankers Trust of South Carolina v. Bruce, 283 S.C. 408, 418, 323 S.E.2d 523, 529 (Ct. App. 1984). The commissioner sent six pages of notes pertaining to the present case to Cassidy’s attorney with instructions for him to draft the final order. Subsequently, Wilson Tree objected to the inclusion of several findings of fact included in the final order but not included in the commissioner’s hearing notes. The commissioner overruled Wilson Tree’s objection, finding she had made no specific limitation on the findings of fact that could be included in the final order but rather merely indicated findings in the final order could not contradict those in her hearing notes. We find no error. By signing the final order, the commissioner adopted the findings of fact as her own. Moreover, in a workers’ compensation action, the full commission, not the commissioner, is the ultimate finder of fact. Ross v. American Red Cross, 298 S.C. 490, 492, 381 S.E.2d 728, 730 (1989) (holding “the Full Commission, as the ultimate fact-finder, may make its own findings, adverse to those of the Single Commissioner”). Irrespective of the commissioner’s attorney-prepared order, the full commission found Cassidy: 1) was totally and permanently disabled because of organic brain damage; 2) was unable to work; 3) was not malingering or subject to outside stressors; 4) reached MMI; and 5) required additional medical treatment. Therefore, the circuit court did not err in affirming the full commission’s final order. B. Video Tape Wilson Tree argues the circuit court erred in affirming the full commission’s finding that Wilson Tree’s failure to admit into evidence a surveillance videotape of Cassidy, made after his injury, created the inference the tape did not “show [Cassidy] engaging in physical or work-related activities of significance.” We find this argument is not properly preserved for our review. In its argument to the circuit court and on appeal to this Court, Wilson Tree asserts it had a valid reason for deciding not to introduce the videotape. Wilson Tree claims the commissioner has a standing policy of only reviewing the “best three minutes” of any videotape introduced into evidence rather than the entire videotape, and for this reason Wilson Tree decided not to introduce this evidence. Drawing a negative inference from the failure to introduce a videotape may seem unfair when a commissioner arbitrarily limits or refuses consideration of properly admitted evidence. However, in the present case, we are unable to consider this issue. The record on appeal contains neither the commissioner’s alleged policy nor any directive from her purporting to limit the videotape’s review. Furthermore, the record contains no evidence indicating Wilson Tree provided the commissioner with this explanation of its decision not to introduce the videotape. Moreover, Wilson Tree’s counsel conceded at oral argument that this particular argument regarding the videotape was not made to the full commission. Having failed to raise its argument to both the commissioner and the full commission, and having failed to provide this Court with an adequate record, Wilson Tree’s argument does not survive for appellate review. See Holy Loch Distribs., Inc. v. R.L. Hitchcock, 340 S.C. 20, 24, 531 S.E.2d 282, 284 (2000) (holding to preserve an issue for appellate review, the issue must have been raised to and ruled on by the trial court); Abba Equip., Inc. v. Thomason, 335 S.C. 477, 486, 517 S.E.2d 235, 240 (Ct. App. 1999) (holding “[t]he same ground argued on appeal must been argued to the trial judge in order to be addressed on appeal”); Taylor v. Medenica, 324 S.C. 200, 216, 479 S.E.2d 35, 44 (1996) (holding a party may not argue one ground for an objection at trial and a different ground on appeal); see also Rule 210(h), SCACR (stating “the appellate court will not consider any fact which does not appear in the Record on Appeal”); Crestwood Golf Club, Inc. v. Potter, 328 S.C. 201, 215, 493 S.E.2d 826, 834 (1997) (holding appellant has the burden of providing this Court with a sufficient record on which to make its decision). IV. Social Security Records Wilson Tree argues the commissioner abused her discretion when she denied Wilson Tree’s motion for an adjournment or continuance to review Cassidy’s Social Security records (“records”). We disagree. “The granting or denial of a continuance is within the sound discretion of the trial judge and is reviewable on appeal only when an abuse of discretion appears from the record.” Hamm v. South Carolina Pub. Serv. Comm’n, 312 S.C. 238, 240, 439 S.E.2d 852, 853 (1994). Prior to the final hearing, Wilson Tree requested the commissioner to authorize the review of Cassidy’s records so that it could cross-examine Cassidy’s doctors regarding their diagnoses of Cassidy’s condition. However, the commissioner did not order Cassidy to provide an authorization because the records were being held on file in the Columbia office of the Social Security Administration for Wilson Tree to review. Cassidy notified Wilson Tree of the records’ location one week prior to the final compensation hearing. The day of the hearing, Wilson Tree’s counsel attempted to review the records but was told the records were either lost in the building or had been returned to storage. At the hearing, Wilson Tree moved for an adjournment or continuance to have time to review the records. The commissioner denied the motion, finding Wilson Tree had ample time to review the records prior to the hearing and simply waited too long to do so. Wilson Tree did not request authorization to review the records until nearly six months after Cassidy filed for lifetime workers’ compensation benefits. Cassidy notified Wilson Tree of the records’ locations approximately one week prior to the hearing, but Wilson Tree waited until the day of the final hearing to attempt to review the records. Furthermore, more than eight years passed between the time Cassidy filed his workers’ compensation claim and Wilson Tree’s request to review the records. The commissioner found, and we agree, Wilson Tree had ample time to review the records prior to the hearing. Wilson Tree merely failed to do so. Thus, the commissioner did not abuse her discretion in denying Wilson Tree’s motion for an adjournment or continuance. See id. CONCLUSION For the foregoing reasons, the circuit court’s order affirming the full commission’s order finding Cassidy totally and permanently disabled and awarding him lifetime medical benefits and lifetime disability benefits of $292.98 per week is AFFIRMED. CURETON, STILWELL, and HOWARD, JJ., concur.