Bevis v. Georgia-Pacific Corporation

THE STATE OF SOUTH CAROLINA In The Court of Appeals Dennis Ray Bevis, Respondent, v. Georgia-Pacific Corporation, Self-Insured Employer, Appellant. Appeal From Spartanburg County Donald W. Beatty, Circuit Court Judge Unpublished Opinion No. 2003-UP-543 Heard September 10, 2003 – Filed September 23, 2003 AFFIRMED IN PART AND REVERSED IN PART Grady L. Beard and Marcy J. Lamar, of Columbia, for Appellant. Richard H. Rhodes and Ray E. Thompson, Jr., of Spartanburg, for Respondent. STILWELL, J.: In this workers’ compensation case, Georgia-Pacific appeals the circuit court order affirming in part and reversing in part the decision of the workers’ compensation commission. We affirm in part and reverse in part. FACTS/PROCEDURAL HISTORY In 1997, Dennis Ray Bevis was operating a jumbo press when his leg became pinned. Several co-workers freed him, and his knee and calf were swollen. Bevis’ supervisor was immediately made aware of the accident and reported it in the first aid log. After this incident, Bevis’ knee would lock up occasionally. In December 1998, Bevis was told the machine he used was going to be replaced, and the new machine would require more bending, stooping, and twisting. When he learned this, Bevis went to his family doctor who referred him to Dr. McClure, an orthopedic surgeon. After meeting with Dr. McClure, Bevis met with his supervisors and completed paperwork to continue treatment. Arthroscopic surgery was performed on January 5, 1999, a second surgery was performed on July 29, 1999, and Bevis began physical therapy. Bevis’ trouble with his knee continued, and Dr. McClure referred him to Miller Orthopedic Clinic, which specializes in knees. Two of the doctors at the Miller Clinic consulted and indicated they “felt it was reasonable to believe . . . that a . . . coblation procedure may alleviate some of his symptoms and lessen the disability to his knee.” Bevis testified he wanted the surgery. On July 15, 1999, Bevis was instructed to “dust down” the plant floor. Bevis was given a bucket to carry debris, and as he was walking down several steps to spread the material, his knee caught and he fell down onto his back and neck. Bevis was seen by the company doctor the day after the fall. The fall was treated as a compensable accident. X-rays revealed a ruptured disc at C5-6. Bevis was referred to a neurosurgeon, who prescribed traction and prohibited Bevis from working for one week. Bevis’ pain persisted, and the neurosurgeon recommended surgery. Bevis sought compensation for both the knee injury and the neck injury. The parties agreed that the claims were separate and independent of each other, but consented to them being tried together. The single commissioner found Bevis sustained an injury by accident to his knee on June 5, 1997, and another to his neck on July 15, 1999. The commissioner found Bevis reached maximum medical improvement (MMI) to his knee but did not allow additional surgery. She deferred a finding of disability until a determination was made on the neck. She found Bevis had not reached MMI to his neck and referred him to the neurosurgeon for treatment, including surgery if necessary. Both parties appealed to the full commission, which adopted the single commissioner’s order in full. Both parties appealed to the circuit court, which held the knee surgery should be allowed and Bevis should receive temporary total benefits retroactive to January 10, 2000, the date the neurosurgeon found him to be disabled and in need of surgery. All other portions of the commission’s decision were affirmed. STANDARD OF REVIEW “The Administrative Procedures Act establishes the standard of review for decisions by the South Carolina Workers’ Compensation Commission.” Brunson v. Wal-Mart Stores, Inc., 344 S.C. 107, 110, 542 S.E.2d 732, 733 (Ct. App. 2001). “The reviewing court may not substitute its judgment for that of the full commission as to the weight of the evidence on questions of fact, but may reverse if the decision is affected by an error of law.” Id. “‘A reviewing court should affirm a decision by the Full Commission unless it is clearly erroneous in view of the substantial evidence on the whole record.’” Id. LAW/ANALYSIS I. Knee and Neck Injuries Georgia-Pacific argues the trial court erred in reversing the commission’s finding that Bevis was not entitled to additional knee surgery and retroactive temporary benefits. We agree. In adopting the findings of the single commissioner, the full commission denied the third knee surgery suggested by the Miller Orthopedic Clinic because (1) opinions differed whether additional surgery would lessen disability and the recommendation seemed speculative, and (2) videotapes showing Bevis’ off-the-job activities subsequent to the injuries indicated no additional medical treatment was warranted for the knee, though they did not discredit either claim. The circuit court found Bevis should not have been denied additional knee surgery because (1) Dr. McClure’s finding that Bevis had reached MMI did not automatically exclude additional surgery or treatment; (2) there was no conflicting evidence whether surgery would lessen the disability, and the only evidence from the Miller Clinic stated it was reasonable to conclude surgery would lessen the pain and disability; and (3) the videotapes did not demonstrate additional medical treatment was not warranted. Dr. McClure testified Bevis reached MMI to his knee as of January 3, 2000, with a 20% permanent partial impairment and additional surgical procedures would not decrease his disability and could make his impairment worse. The videotapes viewed by the commission showed Bevis helping replace vinyl windows at a residence. The commission noted it was not apparent that Bevis had obvious knee trouble, though he moved carefully. The commission stated one videotape showed Bevis doing “a good deal of bending, lifting, measuring, and standing.” We find this to be substantial evidence to support the commission’s finding as to the knee injury, and the circuit court erred in making its own findings on this issue. The commission found Georgia-Pacific would be responsible for temporary total benefits if and when the neurosurgeon scheduled the recommended surgery, but held Bevis not entitled to any retroactive temporary total or temporary partial benefits. The circuit court stated it “differs with the Commission on the issue of temporary total benefits” and found entitlement to temporary benefits from January 10, 2000, until MMI. In finding Bevis was not entitled to retroactive temporary benefits, the commission specifically noted he was working at various times during his claim and thus was not entitled to benefits. The videotapes demonstrated he was able to work, and Bevis testified he had been working. Substantial evidence supports the commission’s findings, and the circuit court erred in finding otherwise. Georgia-Pacific argues the commission erred in finding Bevis’ knee and neck problems were causally related to the incidents of June 5, 1997 and July 15, 1999, and in finding no evidence existed of other causes for Bevis’ neck injury. Georgia-Pacific further contends the circuit court erred in awarding Bevis mileage, medical treatment, and temporary disability benefits in connection with the two accidents. These arguments have no merit. As to the knee injury, two of Bevis’ co-workers witnessed Bevis injure his knee and stated Bevis complained about his knee and it would sometimes catch or lock up after the incident. Although Georgia-Pacific contends the 18-month delay in seeking medical treatment is problematic, Dr. McClure stated it would not surprise him that Bevis did not report the condition for 18 months. Georgia-Pacific contends Bevis’ injury was the result of a car accident he was involved in two weeks before seeking treatment. However, no evidence indicates Bevis suffered any injury from the car accident. Because substantial evidence supports the commission’s finding that Bevis’ knee injury arose out of the work-related accident, we find no error. As to the neck injury, a supervisor saw Bevis immediately after the accident. Bevis was sent to the company doctor the following day. Bevis stated he had not had any prior injuries or problems with his neck. Georgia-Pacific contends Bevis had previous neck injuries. However, the neurosurgeon stated that even if Bevis had previous neck pain or injuries, he believed the neck problems were not caused by any previous problems but rather by the recent injury. Because substantial evidence supports the commission’s finding that Bevis’ neck injury arose out of the work-related accident, we find no error. Additionally, we find no error in the commission’s finding that no evidence existed of other causes of Bevis’ neck injury. Because substantial evidence supports the commission’s decision as to both injuries, the circuit court did not err in awarding Bevis mileage, medical treatment, and disability benefits. II. Fraud Georgia-Pacific argues the evidence supports fraud in the initiation of benefits. We disagree. Georgia-Pacific contends Bevis’ conduct in its video surveillance supports a claim for fraud. Bevis was videotaped in November and December of 1999 doing various work, including replacing vinyl windows at a residence. In one video, Bevis was doing a “good deal of bending, lifting, measuring, and standing.” Another video failed to reveal that Bevis had obvious knee trouble “although he moved carefully.” Although Bevis was doing activities he had been instructed not to do, the activities were light and another person was doing most of the work. The evidence in the videotapes is insufficient to support a finding of fraud in the initiation of the claim. Further, a co-worker and Bevis’ supervisor described Bevis as a good employee who was honest and hardworking. III. Statute of Limitations Georgia-Pacific argues the knee claim was barred by the statute of limitations. We disagree. Georgia-Pacific treated the knee as a work-related accident until it terminated Bevis on December 28, 1999, paying for medical treatment as well as both surgeries. While Bevis was unable to work following surgery, he received temporary total benefits. The statute of limitations for workers’ compensation claims is two years. S.C. Code Ann. § 42-15-40 (Supp. 2002). However, “[i]n determining this question, we follow the rule that, ‘[w]hen an employer voluntarily makes compensation payments, the period for filing usually dates from the last payment.’” Hopkins v. Floyd’s Wholesale, 295 S.C. 154, 156, 367 S.E.2d 447, 448 (Ct. App. 1988). Thus, Bevis’ claim fell within the two-year statute of limitations, which did not begin to run until December 28, 1999 when Georgia-Pacific terminated Bevis and stopped making payments. AFFIRMED IN PART AND REVERSED IN PART. HOWARD and KITTREDGE, JJ., concur.