Cropf v. Pantry, Inc.

Goolsby, Judge: The issue in this worker’s compensation case is whether substantial evidence supports the Full Commission’s finding [107] that the appellant Erika D. Cropf suffered a 30 per cent loss of use of her back because of the injuries Cropf received when she slipped and fell at work. The single commissioner had earlier found Cropf suffered a 5 per cent loss. After the Full Commission made its award, The Pantry, Inc., Cropf s employer, appealed to the Circuit Court. The latter modified the award, finding Cropf sustained only a 15 per cent permanent partial disability. Cropf appeals. We reverse. In a worker’s compensation case, a finding of the Industrial Commission cannot be set aside by a court if the finding is supported by substantial evidence and is not controlled by legal error. Lail v. Georgia-Pacific Corp., 285 S. C. 234, 328 S. E. (2d) 911 (1985); Brownlee v. Wetterau Food Services, 288 S. C. 82, 339 S. E. (2d) 694 (Ct. App. 1986). Here, substantial evidence supports the Full Commission’s finding that Cropf suffered a 30 per cent loss of use of her back. In determining that the substantial evidence in the record supports a finding of only 15 per cent permanent partial disability, the Circuit Court looked at the testimony offered by two orthopedic surgeons and two chiropractors. Neither of the two orthopedic surgeons found Cropf suffered any permanent disability. One chiropractor considered Cropf to have a 15 per cent permanent impairment of the neck, which the Circuit Court said is generally considered part of the back in determining the existence of permanent partial disability, and the other chiropractor stated Cropf suffered permanent disability to some extent, although he did not offer an opinion as to a particular percentage of permanent partial disability. The Circuit Court, however, overlooked the claimant’s own testimony concerning the limitations her injury has placed on her ability to perform the type of work she was doing at the time of injury, i.e., clerking in a convenience store. Cropf, who suffers from no congenital spinal defect and has no history of prior back injuries, testified that she can no longer do the work required of a convenience store clerk. The Circuit Court also gave little or no attention to the testimony from one of the chiropractors that activities involving standing and walking on concrete and lifting and reaching for things would now probably cause Cropf problems and that Cropf’s ability to stoop, squat, and bend would have to be limited. [108] The Circuit Court implicitly holds that the degree of disability found by the Industrial Commission can be no greater than the degree of disability established by expert medical testimony. In limiting the degree of Cropf s disability to the highest degree established by a medical expert, the Circuit Court disregarded established worker’s compensation principles. Professor Larson in his definitive work on worker’s compensation observes: As to issues touching disability, it has been held that the fact-finders may find disability when the medical testimony denies its existence, or may find a degree of disability different from any degree supported by medical testimony.... 3 A. Larson, The Law of Workmen’s Compensation § 79.52(c) n. 33 at 15-426.126 — 15-426.127 (1983). Professor Larson’s views find expression in Linen v. Ruscon Construction Co., 286 S. C. 67, 332 S. E. (2d) 211 (1985). Linen, which, like the instant case, involved the loss of use of the back, in no way limits the degree of disability to the degree established by the medical testimony. In fact, the Supreme Court in Linen found substantial evidence supported an award for a 50 per cent loss of use of the back even though the medical testimony “established, at most, a 30 [per cent] impairment rating.” 286 S. C. at 68, 332 S. E. (2d) at 211. See also Bundrick v. Powell’s Garage and Wrecker Service, 248 S. C. 496, 151 S. E. (2d) 437 (1966) (wherein 50 per cent loss of use of arm upheld even though medical experts testified to 10 per cent and 20 per cent permanent disability); Windham v. City of Florence, 221 S. C. 350, 359, 70 S. E. (2d) 553, 556 (1952) (a workers’ compensation case in which the Supreme Court stated, “No fact finding body is compelled to blindly accept an expert’s opinion”). Because we discern no meaningful distinction between the case here and Linen, we therefore reinstate the award made by the Full Commission. See Cochrum v. Kinro Industries, Inc., 352 So. (2d) 456 (Ala. Civ. App. 1977) (wherein court, using the “any evidence standard,” upheld the finding that employee who sustained work-related back injury while lifting and moving a machine suffered a 30 per cent disability [109] to her body despite medical testimony that she had only a 10 per cent disability; cf. McLeod v. Piggly Wiggly Carolina Co., 280 S. C. 466, 471, 313 S. E. (2d) 38, 41 (Ct. App. 1984) (“a higher degree” of expert medical testimony regarding loss of use of back required in workers’ compensation case where claimant’s back injury resulted from heavy lifting, claimant suffered from a congenital spinal defect, and claimant had .previously sustained back injuries in two separate car accidents). Reversed. Cureton, J., concurs. Shaw, J., dissents.