Mullen v. Beaufort County School District

THIS OPINION HAS NO PRECEDENTIAL
VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF
SOUTH CAROLINA

In The Court
of Appeals

Delila D. Mullen, Appellant,

v.

Beaufort County School District and the S.C. School
Boards Insurance Trust, Respondents.

Appeal From
Beaufort County

Marvin H. Dukes,
III, Circuit Court Judge

Unpublished Opinion
No. 2011-UP-148

Heard November 3,
2010 – Filed April 12, 2011

REVERSED AND
REMANDED

 

James H. Moss, of Beaufort, for Appellant.

Kirsten Leslie Barr, of Mount Pleasant,
for Respondents.

PER CURIAM:  Delila
Mullen appeals the circuit court's affirmation of the Appellate Panel of the South
Carolina Workers' Compensation Commission's (Appellate Panel) finding that she
did not (1) sustain a compensable injury by accident or an occupational disease
and (2) suffer any permanent impairment or loss of use as a result of any
alleged mold exposure at work.  We reverse and remand.

FACTS

Mullen is employed by the Beaufort County
School District as a teacher at Hilton Head Elementary School.  In May 2002, Mullen
developed a cough, sinus problems, headaches, and fatigue. She was subsequently
treated by a doctor in June 2002 for bronchitis and a sinus infection. According
to Mullen, her symptoms improved over the summer, but returned when school
began in the fall.  In October 2002, Dr. Randall Evans examined Mullen and determined
she suffered from an "environment sensitivity" and "[g]iven her
reactive airway disease, she would officially meet the criteria for a reactive
airways dysfunction syndrome."  In November 2002, AAA Environmental (AAA) conducted
an "Indoor Environmental Quality Investigation" at Hilton Head
Elementary and discovered several types of fungi growing in the school,
including Aspergillus mold.  AAA recommended Mullen vacate her classroom and
the carpet, ceiling tiles, and HVAC system be treated.  Mullen's classroom
was gutted, and she returned to teaching in the room in January 2003.

In April 2003, Mullen filed a Form 50 with
the Commission reporting an accidental injury to her sinuses and lungs.  In her
pre-hearing brief, Mullen alleged she suffered from "Restrictive Airway
Disease resulting from chronic exposure to Aspergillus mold in [her] classroom,
affecting [her] sinuses and lungs."  Mullen reported the date of
her accident as "chronic exposure up to 11/02." 

In August and September 2003, Mullen was
evaluated by Dr. Charles Banov to determine whether she had any injury that
could be attributed to mold exposure.  According to Dr. Banov's report, the CT
scans of Mullen's sinuses were "not remarkable," and her pulmonary
function and bronchoprovocation tests were normal.[1] Because Mullen's bronchoprovocation test was "[c]ompletely within normal
limits," Dr. Banov opined that her "respiratory status was excellent
and met all the criteria for what we consider normalcy." When asked
whether Mullen had reactive airway disease, Dr. Banov testified "[s]he did
not . . . because the bronchoprovocation would have brought it out . . . this is
the gold standard to diagnosing reactive airway disease." Dr. Banov also
performed a thermophilic battery test to check Mullen's blood for the presence
of certain fungi, including Aspergillus mold. The test revealed Mullen's blood
was "absolutely negative" for the presence of Aspergillus mold. 

Mullen was also evaluated by Dr. Cary
Fechter in September 2003.  Dr. Fechter performed pulmonary function tests as
well as chest x-rays and a CT scan of Mullen's sinuses.  He determined
Mullen's pulmonary function was normal and her sinuses did "not show
evidence of mucosal thickening or air fluid levels."  Dr. Fechter found
Mullen's condition had improved, but noted she continued to have symptoms
related to her sinuses. Dr. Fechter also performed a cardiopulmonary stress
test, which revealed Mullen had "poor conditioning" with no ischemic
changes and no oxygen desaturations.  In his report, Dr. Fechter stated:

All major pulmonary studies including
methacholine test are normal except for her cardiopulmonary stress test.  The
stress test performed under strict criteria and using sophisticated carbon
dioxide/oxygen monitoring system showed a maximum oxygen consumption which was
clearly lower than normal.  According to the Guide of the Evaluation Permanent
Impairment, her oxygen consumption of 17.1 ml per kg per minute would place her
in the 26-50% impairment of the whole person. 

Dr. Fechter opined Mullen "had a verified
exposure to Aspergillus molds in an enclosed area of high intensity and of long
term duration" and those factors "would lead to a [sic] expected
hypersensitivity reaction."   

Dr. Banov reviewed the results of Dr.
Fechter's cardiopulmonary stress test and testified Mullen's "poor
conditioning" did not affect his opinion as to permanent impairment, but
could provide "some explanation for her subjective complaints of pulmonary
problems."  Dr. Banov testified the tests he performed indicated Mullen
"did not have infection with Aspergillus" or "an allergic
reaction to Aspergillus," and that she did not have any permanent
impairment. When asked whether there was any objective evidence that Mullen
sustained any permanent, physical injury as a result of exposure to Aspergillus
mold, Dr. Banov answered, "Absolutely none." 

In October 2005, the single commissioner determined,
based on Dr. Fechter's report, the AAA report, and medical reports, Mullen
"suffered a compensable injury by accident and/or occupational disease to
the lungs and sinuses as a result of exposure to the [A]spergillus mold in her
classroom and her hyper-reactivity to the mold."  The single commissioner
also found Mullen suffered permanent injury to her sinuses and was entitled to forty
weeks of compensation, totaling $21,976.80.  The single commissioner determined
Mullen did not sustain a permanent injury to her lungs.  Beaufort County School District and the South Carolina
School Boards Insurance Trust (collectively
Respondents) appealed the single commissioner's order to the Appellate Panel.  The
Appellate Panel reversed the single commissioner, finding the record contained
no evidence Mullen sustained a compensable injury or suffered an occupational
disease arising out of and in the course and scope of her employment.  The
Appellate Panel also noted "[n]o physician ever assigned an impairment
rating or even indicated [Mullen] sustained a permanent impairment to her
sinuses." 

Mullen appealed the Appellate Panel's
order to the circuit court.  The circuit court affirmed the Appellate Panel,
holding substantial evidence supported the Appellate Panel's finding Mullen presented
no evidence she sustained any injury or occupational disease arising out of her
employment.  The circuit court also affirmed the Appellate Panel's
determination that Mullen did not sustain any permanent impairment or loss of
use as a result of any alleged mold exposure at work.  This appeal followed. 

STANDARD OF
REVIEW

The substantial evidence
rule of the Administrative Procedures Act governs the standard of review in a
workers' compensation decision.  Liberty Mut. Ins. Co. v. S.C. Second Injury
Fund, 363 S.C. 612, 619, 611 S.E.2d 297, 300 (Ct. App. 2005).  "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 may reverse where the decision is affected
by an error of law."  Stone v. Traylor Bros., 360 S.C. 271, 274,
600 S.E.2d 551, 552 (Ct. App. 2004). "Any
review of the [C]ommission's factual findings is governed by the substantial
evidence standard."  Id.  "Substantial evidence is not a mere
scintilla of evidence, nor the 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 the administrative agency reached in
order to justify its action."  Liberty Mut. Ins., 363 S.C. at 620,
611 S.E.2d at 300.  "The possibility
of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency's findings from being supported by substantial evidence."  Id.

LAW/ANALYSIS

Mullen argues the circuit court erred in finding
substantial evidence supported the Appellate Panel's determination that she did
not sustain a compensable injury by accident[2] or an occupational disease[3] arising out of and in the course of her employment.  We agree.

The circuit court found the
record contained no evidence Mullen sustained an injury or occupational disease
arising out of her employment. The circuit court noted Mullen's laboratory
tests revealed her blood had no mold in it and her lung function and bronchoprovocation
tests were normal.  The circuit court also concluded that Mullen failed to
prove any of the statutory requirements of the Occupational Disease Statute,
S.C. Code Ann. § 42-11-10 to -200 (Supp. 2010). 

Mullen argues her chronic
sinus problems, cough, headaches, and fatigue, as well as Dr. Fechter's
determination that she has a hypersensitivity reaction to mold, all support a
finding that she suffered a compensable injury.  The Respondents maintain the
record contains no evidence of injury to Mullen's lungs or sinuses and no
evidence any of Mullen's symptoms were causally related to any alleged mold
exposure.  The Respondents also contend Mullen failed to prove the existence of
a disease caused by any mold exposure in her employment. 

We find the circuit court erred in
affirming the Appellate Panel's determination the record contained no evidence
Mullen sustained an injury or occupational disease arising out of the course
and scope of her employment.  The record contains some evidence Mullen
sustained an injury or disease.  In addition to Dr. Fechter's determination
that Mullen had a hypersensitivity reaction to mold, Dr. Randall Evans examined
Mullen and determined she suffered from an "environment sensitivity"
and "[g]iven her reactive airway disease, she would officially meet the
criteria for a reactive airways dysfunction syndrome." Accordingly, we
reverse the circuit court's affirmation of the Appellate Panel's finding the
record contained no evidence Mullen sustained an injury or occupational disease
arising out of her employment.  We remand the issue of whether Mullen sustained
an injury or occupational disease and whether she suffered any permanent
impairment to the Appellate Panel for reconsideration.  We caution that our
opinion is not to be confused as a finding of no substantial evidence to
support the Appellate Panel's determination of lack of compensability.  Given
the Appellate Panel's erroneous conclusion no evidence supported a
finding of injury or occupational disease, we are simply remanding for the
Appellate Panel to consider all of the evidence in making its determination
regarding compensability. 

CONCLUSION

We reverse the circuit court's affirmation of the
Appellate Panel's determination the record contained no evidence Mullen sustained
an injury or occupational disease arising out of and in the course of her
employment.  Further, we remand to the Appellate Panel for reconsideration of
all the evidence to determine whether Mullen sustained an injury or
occupational disease, and whether she suffered any permanent impairment.  Accordingly,
the order of the circuit court is

REVERSED AND REMANDED.

HUFF, KONDUROS, and LOCKEMY, JJ., concur. 

[1] Bronchoprovocation tests are used to determine whether
a patient has reactive airway disease. The test requires patients to
breathe certain chemicals in order to provoke any pulmonary problems. 

[2] S.C. Code Ann. § 42-1-160 (Supp. 2010).

[3] S.C. Code Ann. § 42-11-10 (Supp. 2010).