Patricia Pate v. College of Charleston

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Patricia Pate, Employee/Claimant, Appellant,

v.

College of Charleston, Employer, and State Accident
Fund, Carrier, Respondents.

Appellate Case No. 2019-001064

Appeal From The Workers' Compensation Commission

Opinion No. 5925
Heard April 12, 2022 – Filed July 20, 2022

REVERSED AND REMANDED

Stephen Benjamin Samuels, of Samuels Reynolds Law
Firm LLC, of Columbia and Max Capper Sparwasser, of
Max Sparwasser Law Firm, LLC, of Mount Pleasant,
both for Appellant.

Margaret Mary Urbanic, of Clawson & Staubes, LLC and
Mikell Holbrook Wyman, of Wyman Law Firm, LLC,
both of Charleston; Page Hilton, of South Carolina
Legislative Counsel, of Wedgefield; and Kirsten Leslie
Barr, of Trask & Howell, LLC, of Mount Pleasant, all
for Respondents.

HEWITT, J.: This is an appeal from the Workers' Compensation Commission. The
case is about whether the commission properly limited Patricia Pate to an award for
a back disability and whether the commission erred when it determined she has lost
a lesser degree of the use of her back than she claimed.

There is ample evidence Pate's back injury affects other parts of her body. It was
thus a legal error for the commission to reject Pate's request that she be allowed to
consider an award under the "general disability" regime by summarily stating her
claim was limited to the back without providing any analysis.

Pate also argues the only conclusion supported by the evidence is that she is
permanently and totally disabled. Though the restrictions in this case are extensive,
we do not think we can say the forty percent loss of use finding is clearly erroneous.
As noted above, the commission has not yet done a substantive weighing of Pate's
claim under the general disability regime. We therefore reverse and remand for the
commission to evaluate Pate's claim for a general disability award.

FACTS

We will try to abbreviate the facts as much as possible. Pate worked at the College
of Charleston's copy center. She hurt her back at work in December 2011.

The injury was severe enough to warrant surgery in May 2012. Pate's surgeon
assigned a forty percent impairment rating to the spine and a thirty-six percent rating
to the whole person.

Pate's long-term treatment regimen after surgery included sacroiliac (SI) joint
injections, trigger point injections, epidural steroid injections, a TENS unit, and pain
medications (OxyContin, Percocet, and Tizanidine). For reasons that matter later in
our analysis, we will mention that the surgeon said he increased Pate's impairment
rating by ten percent in an effort to account for chronic pain caused by the injury.

Pate returned to work but remained on pain medication and received injections
approximately every two months. In August 2014—over two years after Pate's back
surgery—the authorized treating physician referred Pate to a clinical psychologist
for an evaluation and possible treatment for depression. He also started Pate on an
antidepressant and nerve pain medication, noting Pate was significantly depressed.

The next point we should mention is that Pate was hospitalized shortly after that (in
September 2014) with blood clots in her lungs. This resulted in increased pain
medication and prevented her from receiving her injection therapy for several
months. The blood clots also prevented her from working.
Pate was approved to return to work in December 2014, but for only four hours per
day; four days per week; no lifting more than fifteen pounds; no bending, squatting,
crawling, or pushing heavy objects; and with a reevaluation scheduled two weeks
later. Pate's restrictions did not change. The College placed her on leave without
pay in January 2015 after determining that it could not accommodate her restrictions.

The case had a lengthy journey at the commission. Pate alleged injuries to her back,
legs, and psyche (depression). The College admitted an injury to Pate's back only.
The College also claimed the blood clots in Pate's lungs were an "intervening act"
and that all of Pate's current medical treatment and impairments resulted from the
clots, not from her back injury.

The single commissioner agreed with the College that Pate's embolisms were an
intervening event, awarded the case as a "back only" claim, and did not award any
future medical treatment. Pate appealed. The appellate panel affirmed in part,
reversed in part, and remanded. The panel reversed the single commissioner's
finding that the blood clots were an intervening act and remanded for the single
commissioner to determine Pate's degree of disability and to award causally related
medical treatment.

On remand, the single commissioner found Pate's injury only affected her back, that
she sustained a forty percent permanent partial disability, and that Pate was entitled
to future medical treatment including SI joint injections, trigger point injections,
epidural steroid injections, a TENS unit, pain medication, and a lumbar back brace.

Pate appealed to the appellate panel again, raising the same arguments she raises
here. The appellate panel affirmed. This appeal followed.

ISSUES

1. Whether the commission erred in finding this was a "single member" case and
limited Pate to an award for a back injury.

2. Whether the commission erred in failing to find Pate permanently and totally
disabled; either because of her extensive restrictions or because the commission
allegedly erred in concluding she had not lost more than fifty percent of the use
of her back.

THE SINGLE MEMBER DEFENSE
The Workers' Compensation Act has two methods of compensation. General
disability is codified at sections 42-9-10 and -20 of the South Carolina Code (2015).
Scheduled recovery is codified at section 42-9-30 of the South Carolina Code
(2015).

If a worker with a single injury to a body part listed in the scheduled recovery
statute—say, a back or arm injury—wishes to pursue a general disability award, the
worker must show that the injury affects other parts of the worker's body. Brown v.
Owen Steel Co., 316 S.C. 278, 280, 450 S.E.2d 57, 58 (Ct. App. 1994); Singleton v.
Young Lumber Co., 236 S.C. 454, 471, 114 S.E.2d 837, 845 (1960). Pate made such
a claim here. She claims her back injury has caused pain radiating into other parts
of her body and pain-related depression.

The record indicates no less than forty physician notes about Pate having nerve pain
in places other than her back. They commonly reference pain in her left leg and hip.
There are also numerous references in the record to various symptoms radiating from
Pate's back to her knee, diminished sensation throughout her left lower extremity,
and stabbing pain in her buttocks and thigh. A functional capacity evaluation
reported that Pate exhibited an altered gait secondary to pain. We mentioned in the
earlier background that the authorized treating physician added ten percent to his
impairment rating for Pate's back because of her chronic pain, prescribed Pate an
antidepressant, and referred her to a psychologist. The psychologist confirmed a
diagnosis of major depressive disorder. There is thus no doubt that the record
contains ample markers of a colorable claim that the effects of Pate's back injury
extend beyond her back.

Neither the single commissioner nor the appellate panel gave any analysis in
deciding this was a single member case. The commission's decision simply
proclaims "[t]his is a single-member injury affecting Claimant's lower back only"
and that Pate was limited to the scheduled recovery statute.

The law instructs us to affirm the commission's factual findings unless they are
clearly erroneous in view of the reliable, probative, and substantial evidence in the
record. S.C. Code Ann. § 1-23-380(5)(e) (Supp. 2021). But the law also instructs
that the commission's final decision must include "a concise and explicit statement
of the underlying facts" that support its findings. S.C. Code Ann. § 1-23-350 (2005);
see also Able Commc'ns, Inc. v. S.C. Pub. Serv. Comm'n, 290 S.C. 409, 411, 351
S.E.2d 151, 152 (1986) ("The findings of fact of an administrative body must be
sufficiently detailed to enable the reviewing court to determine whether the findings
are supported by the evidence and whether the law has been properly applied to those
findings."). Here, we have no idea why the commission rejected Pate's argument
that her back injury was causing complications in other parts of her body. We cannot
say whether the commission erred or was correct in its reasoning. The commission
gave no reasoning in its order.

The College argues we can affirm because the only conclusion supported in the
record is that Pate's leg pain was off-and-on, mild, and that no physician has
diagnosed Pate with a mental injury related to the work accident. We respectfully
disagree. The references to complications in other parts of Pate's body show up in
records throughout her multi-year course of treatment, and two physicians—Dr.
Nolan and Dr. Kee—diagnosed Pate with depression. Dr. Nolan was the authorized
treating physician for Pate's back injury. Dr. Kee is the psychologist who evaluated
Pate at Dr. Nolan's request. Dr. Nolan prescribed Pate an antidepressant. The
pertinent records have repeated references to Pate's back injury and the
complications caused by the back injury. We do not think it is fair to say that the
evidence in the record leads unquestionably to the finding that Pate's back injury
affects nothing more than her back.

PERMANENT AND TOTAL DISABILITY

Pate's second argument is that rather than remand, we should find she is permanently
and totally disabled either because of her extensive restrictions or because the
commission allegedly erred in concluding she had not lost more than fifty percent of
the use of her back.

We will take these arguments in reverse. Under the scheduled recovery statute, a
worker who has lost more than fifty percent of the back is presumed to be
permanently and totally disabled. See § 42-9-30(21). The commission found Pate
sustained permanent partial disability of forty percent of her back. This
corresponded precisely with the impairment rating to the spine assigned by Pate's
surgeon.

Several things support Pate's argument that her award must be greater than her
medical impairment. She points us to a medical authority explaining that
impairment ratings should not be used to estimate the degree of disability. See
generally Linda Cocchiarella & Gunnar B.J. Andersson, Guides to the Evaluation of
Permanent Impairment 9 (5th ed. 2000). She also points us to numerous cases where
the disability awards exceed the impairment ratings. E.g. Linen v. Ruscon Constr.
Co., 286 S.C. 67, 68-69, 332 S.E.2d 211, 212 (1985) (affirming a finding of greater
than fifty percent loss of use of the back when highest rating to back was twenty to
thirty percent).

Even if we found it was error to limit Pate's award to the precise amount of her
impairment rating, we do not think we could go so far as to say the evidence in the
record supports no conclusion other than that Pate has lost more than fifty percent
of the use of her back. Pate claims it is clear that she is permanently and totally
disabled and that we can "work backwards" from that to conclude that she must have
lost more than fifty percent of the use of her back. We are not so sure. Would we
say the commission clearly erred if it found Pate had lost forty-eight percent of her
back but that Pate was permanently and totally disabled because of the effects her
back injury caused in other parts of her body? We do not know, and we do not have
that sort of order before us. Weighing impairment ratings as part of arriving at a
percentage of disability strikes us as a task that the Legislature envisioned entrusting
to members of the commission, not to us.

There is certainly evidence of permanent and total disability in the record. The
restrictions are extensive, and total disability does not require helplessness. "The
generally accepted test of total disability is inability to perform services other than
those that are 'so limited in quality, dependability, or quantity that a reasonably
sta[bl]e market for them does not exist.'" Wynn v. Peoples Nat. Gas Co. of S.C., 238
S.C. 1, 12, 118 S.E.2d 812, 818 (1961) (quoting Lee v. Minneapolis St. Ry. Co., 41
N.W.2d 433, 436 (Minn. 1950)).

But as we noted in the section discussing the single member defense, the commission
has not evaluated Pate's claim for compensation under the general disability regime.
Though we do not wish to prolong this case for the parties or to add to the
commission's workload, we hold it is not appropriate for us to evaluate the merits of
this argument before the commission has spoken.

We respectfully reject the College's argument that Pate's blood clots in her lungs are
an intervening cause of her present ailments as a matter of law and that we can avoid
Pate's claim for permanent and total disability. The appellate panel rejected this
argument, and we likewise reject the College's contention that the only conclusion
with support in the record is that Pate's current and substantial work restrictions have
no relation to her back injury.

CONCLUSION
For the foregoing reasons, we reverse and remand. We do not wish to prevent the
commission from following whatever procedures it deems appropriate for
expeditiously adjudicating the claim. We envision that, at a minimum, the
commission will evaluate the substance of Pate's general disability claim.

REVERSED AND REMANDED.

THOMAS and MCDONALD, JJ., concur.