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 Appeal From Horry County John L. Breeden, Circuit Court Judge Unpublished Opinion No. 2008- UP-075 Submitted January 1, 2008 – Filed February 4, 2008 AFFIRMED Johnnie W. Baxley, III, Mount Pleasant, for Appellants.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.